Volume 43 — Montana Reports

Miller Smith, Judge. Suit by Oscar Carlson against tbe city of Helena to enjoin defendant from taking further proceedings to procure a water supply, etc. From a decree for defendant, plaintiff appeals.

L. Calla-way, Judge. Action by Thomas Haddox against the Northern Pacific Railway Company, a corporation, and another. Judgment for defendants, and plaintiff appeals. The acts of the defendant engineer have been tersely defined and the law relative thereto has been clearly set forth in one sentence.

C. Webster, Judge. Action by Herbert Kuphal, by F. W. Kuphal, his guardian ad litem, against the Western Montana Flouring Company and another. From a judgment in favor of plaintiff, and an order denying them a new trial, defendants appeal.

K. Cheadle, Judge. StephenE. Suitor was convicted of murder in the first degree, and appeals from the judgment and an order denying his motion for a new trial. The verdict is contrary to law. It fails to find the degree of crime of which the defendant was found guilty, and failure to designate the degree of crime vitiates the verdict, and no judgment could be legally rendered thereon.

L. Callaway, Judge. Cornelius Crean was convicted of manslaughter and appeals from the judgment and an order denying him a new trial. Will a verdict of manslaughter be supported under the information? Counsel for defendant submit that it is well settled in Montana, and at common law, that under such an information as is set forth in State v. Metcalf, 17 Mont. 417, 43 Pac. 182, a person may be convicted of manslaughter, or any assault, such as might be alleged therein.

Miller Smith, Judge. Application for writ of prohibition by the state, on the relation of Lincoln Working, police judge, against the mayor and city council of the city of Helena. From a judgment against relator, he appeals.

Mc-Clernan, Judge. Action by Sadie A. Monson, administratrix of John Monson, deceased, against the La France Copper Company. From an order granting a new trial after judgment for plaintiff, she appeals.

Mc-Clernan, Judge. Action by Katherine Meehan, as administratrix of the estate of John Meehan, deceased, against the Great Northern Bailway Company. From a judgment for - defendant, plaintiff appeals. Contributory negligence cannot be imputed to the deceased. It is a matter requiring affirmative showing, and the affirmative showing must come from the defendant. (Sprague v. Northern Pac. By. Co., 40 Mont. 487, 107 Pac. 412; C. & 0.

L. Calla-way, Judge. Action by Sebastian Ott against Ike E. O. Pace and others. From a judgment sustaining a general and special demurrer to the amended complaint, plaintiff appeals.

Lynch, Judge. Action by the Britannia Mining Company against the United States Fidelity and Guaranty Company. A verdict was rendered for defendant, and from an order granting a new trial, defendant appeals. The levy in the action of Nickey v. Britannia Min. Co. was made while Quinn’s first official bond was in force and effect, and the sale complained of was made while the second official bond was in force and effect, and during the second term of his office as sheriif.

Miller Smith, a Judge of the First Judicial District, in and for Lewis and Clark County, presiding. Action by John R. Bordeaux against Ella F. Bordeaux.From a judgment for defendant and an order overruling a motion for a new trial, plaintiff appeals. Order denying new trial affirmed and decree of divorce reversed, and cause remanded, with directions to enter decree in favor of plaintiff.

’Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Mandamus by the state, on the relation of William Deeney, against the Butte Electric and Power Company. Judgment for relator, and respondent appeals. A writ of mandate is an extraordinary writ, never had for the mere asking, never granted in doubtful cases, never granted before the right thereto is clearly shown, and then only when tempered by a wise discretion of the court.

<p> Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. </p> <p>Action by Celeste Albertini against Peter Linden, doing business, as the Oro Fino Ice Company. From a judgment fpr plaintiff, defendant appeals.</p>

Miller Smith, a Judge of the First Judicial District in and for Lewis & Clark County, presiding. Action by F. A. Mills, as administrator of the estate of W. H. Charnley, deceased, against Allen J. Olsen and Fred Johnson, copartners, doing business under the firm name of Olsen & Johnson, and J. T. Lacasse and others. Judgment for plaintiff, and defendants appeal from it and an order denying them a new trial.

'Appeal from District Court, Silver Bow County; J. M. Clements, a Judge of the First Judicial District, in and for Lewis & Clark County, presiding. Action by Wilfred EL Flaherty, by Laura S. Flaherty, his guardian ad litem, against the Butte Electric Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The appellants predicate error upon the court’s granting plaintiff’s motion to file an amended complaint.

Mandamus. Original application by tbe state, on tbe relation of W. H. Holliday, against John O’Leary, as clerk of the city of Butte, Silver Bow county, to compel the filing of relator’s certificate of nomination as a candidate for the office of police judge of the city. Chapter 113, Laws of 1909, is obnoxious to section 23, Article Y, of the state Constitution.

Original application by tbe state, on the relation of the city of Helena, against the Helena Waterworks Company and others, for an injunction.

McClernan, Judge. Action by the Washoe Copper Company against John Jnnila and others, in which W. H. Hall and others intervene. From a judgment for defendants and interveners, plaintiff appeals.

Lynch, Judge. Action by John H. O’Meara against Peter T. McDermott. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. No suitor is allowed to invoke the aid of the courts upon contradictory principles of redress upon one and the same line of facts.

B. Poindexter, Judge. Action by D. R. Snider and others against Benjamin Yarbrough and others. From a judgment sustaining a demurrer to the complaint, plaintiffs appeal. The authorities hold that a mere default in the payment of an installment, if not coupled with facts showing an intent on the part of the party in default to renounce his liability under the contract, does not operate as a discharge of the adversary party. (Mersey Go. v. Naylor, 9 App.

Mc-Clernan, Judge. Action by Mina Sanden against the Northern Pacific Eailway Company. From a judgment for defendant, and an order denying her a new trial, plaintiff appeals. Respondent says its conductors in charge of said train had no authority to bind it with reference to appellant’s right to stop over on said ticket.

McClernan, Judge. Action by William Flavin against the Chicago, Burlington and Quincy Railroad Company. Judgment for .plaintiff, and defendant appeals from it and an order denying it a new trial.

<p>Partnership — Actions Between Members — Death of Partner— Effect — Administrators—Complaint—Insufficiency.</p> <p>Mining Partnership- — Death of Member — Effect.</p> <p>1. The death of a mining partner does not dissolve the partnership; the estate of the decedent succeeds to his interest and occupies the same relative position that he would occupy if alive.</p> <p>Partnership — Actions Between Members — When not Maintainable. •</p> <p>2. In the absence of a settlement of the partnership business, one partner cannot maintain an action at law against his copartner with reference to the partnership affairs.</p> <p>Same — Administrators—Complaint—Insufficiency.</p> <p>3. A complaint by the administratrix of the estate of her husband in an action against the remaining member of a partnership of which decedent had also been a member, to recover partnership profits, whieh failed to allege that a settlement or adjustment of the partnership business had been had, did not state a cause of action.</p>

District Court, Park County; Frank Henry, Judge. Action by W. E. Piper and Ernest F. Piper, copartners doing business under the firm name of the Piper Construction Company, against James A. Murray and The Monida Trust. Judgment for plaintiffs, and defendants appeal from it and an order denying them a new trial. The complaint does not state facts sufficient to constitute a cause of action.

B. Winston, Judge. Action by the New York Life Insurance Company against Deer Lodge County. Judgment for defendant, and plaintiff appeals. The transaction of the business of life insurance in the manner described in the appellant’s complaint is interstate commerce. What interstate commerce is has been a subject prolific of discussion and dispute. In the leading case of Gibbons v. Ogden, 9 Wheat.

Action by the Billings Realty Company against the Big Ditcb Company. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. The complaint in this case fails to state a cause of action, for the reason that it does not describe the property which it is alleged was damaged. The property involved in an action should be sufficiently described for' identification. (6 Ency.

McClernan, Judge. Action by William C. Orton against Lewis B. Bender. Judgment for plaintiff, and defendant appeals from it and an order denying Mm a new trial.

Action by John Allen against tbe Bear Creek Coal Company and others. From a judgment for plaintiff, and an order denying a new trial, defendants appeal. Even though there was a breach of duty on the part of the defendants in failing to sufficiently timber the room, no liability can flow from such breach of duty unless it be shown that it resulted in the injury. Hence that fact must be alleged in the pleading.

Original application for mandamus by the state, on the relation of W. B. Dolenty, against Frank L. Reece, clerk of the district court of the first judicial district, to compel the entry of a judgment. In behalf of Respondent, there was a brief by Messrs. McIntyre & McIntyre. Oral argument by Mr. H. &. McIntyre.

'Appeal from District Court, Silver Bow County; John B. McClernan, Judge. Action by E. J. Doherty against the Northern Pacific Railway Company. Judgment for defendant, and plaintiff appeals.

<p>Water Rights — Change of Use — Rower and Agricultural Fur-poses — Date of Appropriation — Trial — Findings — Exceptions — Review.</p> <p>Trial — Defective Findings — Exceptions—Review.</p> <p>1. A party who fails to make exception in the district court to findings claimed by him to be defective, and to have the exception reserved in a bill of exceptions, may not complain of such defect on appeal.</p> <p>Water Rights — Indefinite Findings — Appeal—Party Aggrieved — Harmless Error.</p> <p>2. The count in a water right suit found appellant to be entitled to the use of a certain number of inches of water for “about two weeks in June” of each year. Held, that though the court’s failure to specifically ascertain the portion of the month to which appellant’s use was to be confined rendered the finding vague and indefinite, appellant was not aggrieved, since he was left to his own choice in selecting the time of use, during the month of June, so long as he did not exceed the limit of two weeks, the lack of definiteness thus not working to his injury.</p> <p>Findings — To be Construed Together.</p> <p>3. All findings of the eourt must be construed together, and, if possible, such construction be given them as will sustain the decree; otherwise a general finding, when inconsistent with a specific one, must be rejected and the decree held to be supported by the latter.</p> <p>Water Eights — Change of Diversion and Use Permissible, When.</p> <p>4. An appropriator of water may change the point of his diversion or use it for purposes other than that originally intended for it, provided the change does not affect injuriously the rights of subsequent appropriators.</p> <p>Same — Change of Use from Power to Agricultural Purposes — Effect on Date of Appropriation.</p> <p>5. Appellant appropriated 1,500 inches of water for power purposes in 1883. In 1905 he changed the use of ninety inches thereof from power to agricultural purposes, which changed use resulted in a consumption of the quantity so diverted. Held, that under these circumstances the change of use amounted pro tanto to a new appropriation, and that therefore the right to use such amount must bear the date at which the change from the original purpose was made, i. e., 1905.</p>

Miller Smith, Judge. Action by Albert Lynes against tbe Northern Pacific Railway Company and another. From a judgment for plaintiff and an order denying them a new trial, defendants appeal. For the first time the objection is now urged that the complaint does not state facts sufficient to constitute a cause of action.

McClernan, Judge. Mandate by the state, at the relation of James H. Rowling and others, to compel the mayor of the city of Butte to restore relators to active duty on the police force.

and Clark Countyj J. Miller Smith, Judge. Action by T. C. Power against the city of Helena. From a judgment for defendant rendered on sustaining a demurrer to the complaint, plaintiff appeals.

Miller Smith, a Judge of the First Judicial District, presiding. Action by Frank Storer against Davis* Graham, Sheriff of Missoula County. From an order refusing to set aside a default judgment, and defendant appeals.

Lynch, Judge. Action by the Butte Machinery Company against the City of Butte. Defendant had judgment, and the district court ordered a new trial. Defendant appealed.

'Appeal from, District Court, Lewis and Clark County; J„ Miller Smith, Judge. Contest of will of Edward J. Murphy, deceased, by Mary Murphy 'against Anna E. Nett. Judgment for contestant, and eontestee appeals.

'Appeal from. District Court, Missoula County; F. C. Webster, Judge. Action by Alban Therriault, through Severin Therriault, his guardian ad litem, against Orville England .and others. From a judgment for plaintiff, defendants appeal. There is a variance between plaintiff’s complaint and the evidence, amounting to a failure of proof. He can recover only on the facts alleged. (Flaherty v. Butte Elec. By., 40 Mont. 454, 135 Am.

'Appeal from District Court, Silver Bow County; John B. McClernan, Judge. certiorari by the state on the relation of E. W. Wynne to review the action of the examining and trial board of the police department of the city of Butte in finding him guilty of misconduct in office, and of the mayor of said city in discharging him permanently from his office of chief of police. From a judgment ordering dismissal of the proceedings, relator appeals.

Original application for mandamus by the state, on the. relation of John H. Geiger, against Philip R. Long, as clerk of the district court of Lincoln county.

Myers, Judge. William Wakely was convicted of gambling, and appeals from the judgment and an order denying him a new trial. The first specification of error is based upon the proposition that the information does not state facts sufficient to constitute a public offense. The law is directed specifically against one who unlawfully and willfully carries on, opens, conducts, etc., a game of chance, for money, etc., as principal, agent or employee.

R. C. Stewart, Judge. George Needy was prosecuted for rape and convicted of assault in the second degree, and appeals from the judgment of conviction and an order denying his motion for a new trial.

M. Clements, Judge. Action by the State against the Western Union Telegraph Companyt From a judgment for defendant, the State appeals. The respondent company is a New York corporation, and is not, therefore, entitled to enter Montana except under the •conditions which the Constitution and laws of Montana prescribe for a corporation of like character. (Paul y. Virginia, 8 Wall.

Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. Action by James P. Kelly against the City of Butte. From an order granting plaintiff’s motion for a new trial, defendant appeals.

L. Calla-way, Judge. Action by Thomas J. Wilson, against Alex Norris. From a judgment for plaintiff and an order denying Mm a new trial, defendant appeals.

1Lynch, Judge. Action by Duncan McCrimmon against James A. Murray. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Action by the P. J. Bowlin Liquor Company against George F. Fauver'. Held: “that the testimony of a married woman that property in controversy was purchased in part by money given her by her husband was not inadmissible as a communication between the husband and wife, since the statute refers only to confidential communications induced by the marital relation, and not in regard to business transactions.”…

Suit by C. F. Wertz against W. W. Lamb and others to establish a mechanic’s lien. From a judgment of nonsuit and an order denying a new trial, plaintiff appeals.

Action by R. Foth.erin.gill against the Washoe Copper Company and another. From a judgment for defendants and an order denying him a new trial, plaintiff appeals. Held: after a time, that knowledge of a defect, unless it was accompanied by an appreciation of the danger arising from it, ought not to preclude recovery by the servant. (Cook v. St. Paul etc. By.

Appeal from District Court, Silver Bow County; Michael Donlan, Judge. James Barrett was convicted of burglary, and appeals from the judgment and an order denying Mm a new trial.

<p>Estates of Deceased Persons — Gifts Causa Mortis — Definition— Burden of Proof — Certificates of Deposit — Validity of Gift— By What Law Determinable — Evidence—Sufficiency.</p> <p>Estates — Recovery of Assets — Gifts—Action at Law.</p> <p>1. Pleadings in an action brought by an executor to recover as assets of his testator’s estate certain certificates of deposit, claimed by defendant as a gift causo mortis, held to have presented purely legal issues, and not such as were cognizable in a court of equity.</p> <p>Gifts Causa Mortis — Essentials. f</p> <p>2. To render a gift causa mortis effective the following elements must concur: (1) It must have been made in contemplation, fear or peril of death; (2) the donor must have died of the illness or peril which he then feared or contemplated; and (3) the delivery must have been made with the intent that title should vest only in case of death.</p> <p>Same — Validity—Burden of Proof.</p> <p>3. The burden of proof rested upon defendant to show, inter alia, that the deceased delivered the certificates sought to be recovered as a part of his estate as a gift, and not merely as a deposit for safekeeping.</p> <p>Same — Certificates of Deposit — Indorsement.</p> <p>4. Though indorsement of the certificates by deceased was not absolutely essential to the validity of the gift to defendant, delivery of such an instrument being sufficient to transfer the equitable title, the omission of this formality was a fact to be taken into consideration in determining whether deceased intended to transfer title.</p> <p>Same — Evidence—Sufficiency.</p> <p>5. Evidence held sufficient to sustain the finding of the jury that delivery of the certificates of deposit, claimed by defendant as a gift causa mortis, was not intended by deceased as a transfer' of title.</p> <p>Same — Validity—How Determinable.</p> <p>6. The validity of a gift causa mortis is determinable by the law of the place where it is made, without reference to the domicile of the donor.</p> <p>Same — Law of Place — Evidence—Instructions.</p> <p>7. The alleged gift having been made in the state of Minnesota, the trial court, for the purpose of ascertaining the law of that state relative to gifts causa mortis, admitted in evidence reported decisions of the supreme court of that state, and instructed the jury accordingly. The definition of such a gift made by the Minnesota appellate court is in conformity with the common law, embodied in section 4638, Revised Codes. Held, that appellant was not in a position to assert prejudicial error, either in the manner of ascertaining the law of Minnesota or in instructing the jury in accordance therewith.</p>

E. Erickson, Judge. Action by Adolph Eeraert against the Eureka Lumber Company. Plaintiff had judgment, and defendant appeals from an order denying it a new trial. A pleading which has been superseded by an amended one is not admissible in evidence, either for or against either party to the action. (Mecham v. McKay, 37 Cal. 154; Ponce v. McElvy, 51 Cal. 222; Johnsons.

J. Lynch, Judge. Action by Margaret McEnaney against the city of Butte to recover damages for personal injuries caused by a fall on a sidewalk. Plaintiff had judgment, and from it and an order refusing it a new trial, defendant city appeals. In the complaint, it is said that the ice and snow, formed by reason of said overflow, was a source of danger to pedestrians passing on and over said sidewalk.

M. Clements, Judge. Action by the state, on the relation of L. Y. Bogy, to compel the board of commissioners of Chouteau county to submit the question of the creation of the new county of Blaine to the electors, under Chapter 112 of the Laws of 1911. Relator had judgment directing a writ of mandate to issue as prayed, and defendants appeal.

We submit that the counterclaims set forth in the answer do arise out of the transaction set forth in plaintiff’s complaint as the foundation of the plaintiff’s claims, and also that they are directly connected with the subject of the action.

McClernan, Judge. Action by J. B. Fitzpatrick against Frank D. O’Neill, J. J. Flanigan, and tbe Open Bange Sheep Company. Plaintiff had judgment. Defendants appeal from the judgment and an order denying their motion for a new trial.

<p> Appeal from District Court, Gallatin County; J. Miller Smith, a Judge of the First Judicial District, presiding. </p> <p>Action by Albert Carpenter against Harry Nelson. Defendant had judgment, and plaintiff appealed.</p>

Original application by George T. Browne for writ to prohibit the prosecution of an action against him brought in a police court.

Original application for writ of mandamus to compel the district court of Silver Bow county, and John B. McClernan, one of its judges, to vacate an order granting a motion for a change of venue, and to enter one denying such motion.