Volume 44 — Montana Reports

<p>Promissory Notes — Statute of Limitations — Part Payment by Joint Obligor — Does not Suspend Running of Statute as to Nonconsenting Obligor.</p> <p>Promissory Notes — Statutes of Limitations — Joint Obligors — Part Payment by One — Effect.</p> <p>1. In 1893, defendant K. and two others executed and delivered their joint and several note, due six months after date. In 1895, 1901, 1904 and 1906 one of K.’s joint debtors made certain part payments without K.’s knowledge, which payments were not subsequently ratified by him. In defense to an action brought in 1910 by the then holder of the note, K., the only defendant served with process, interposed-the bar of the statute of limitations. Held, under section 6472, Revised Codes, that one joint debtor, by making part payments, may not suspend the running of the statute as to his joint obligors who do not authorize or ratify his aet, and that, therefore, the court properly found in favor of defendant.</p> <p>Same.</p> <p>2. The provision of subdivision 5, of section 7887, Revised Codes, that evidence may be given of the act or declaration of a “joint debtor, or other person jointly interested with the party,” etc., held not to militate against the rule declared in paragraph 1 above.</p>

M. Clements, Judge. Action by John Domitrovich, administrator, against the Stone & Webster Engineering Corporation. Held: and it would seem correctly. Unless the attention of the judge of the state court is called to the petition and bond, how is it possible for him to grant or refuse the petition to remove?” (See, also, Amory v. Amory, 95 U. S. 186, 24 L. Ed. 428.) Dr. Kellogg was asked as to whether, if tissues were weakened in any way, the patient…

Lynch, Judge. Action by Elma P. McMillan, executrix of A. A. McMillan, deceased, and another, against Lee Davenport. From a judgment for defendant, and an order denying a new trial, plaintiffs appeal. This is a statutory action to quiet title. The plaintiffs set forth fully in the complaint the facts upon which their title to the premises in controversy is based, and allege that defendants make some claim to the said property adverse to them.

Miller Smith, Judge. Action by Nick Masich against the American Smelting and Refining Company and another. Judgment for plaintiff. Defendants appeal. A master who orders his servant to use known dangerous machinery is liable for the resulting injury. (16 Current Law, 822, note 40.) The giving of an order which is dangerous to execute is negligence, and the master is responsible for injuries following therefrom, though the exact injury be anticipated.

'Appeal from District Court, Lewis and Clark County; J. ■Miller Smith, Judge. Mandamus by the state, on the relation of John A. Arthurs, against the board of county commissioners of Chouteau county and the members thereof. General demurrer to alternative writ sustained, and proceeding dismissed, and relator appeals.

Original application by the state, on the relation of Darius' F. Grogan and others, against the District Court of the Ninth-Judicial District of the State of Montana, in and for Gallatin County, and Hon. J. Miller Smith, Judge presiding, for a writ of supervisory control to set aside a judgment.

C. Webster, a Judge of the Fourth Judicial District, presiding. Action by George A. Morse against tbe county of Granite and others. Held: under a statute authorizing the issuance of bonds for building bridges, that the authority included the costs of necessary superintendence. (Gilbert v. Canyon County, supra.) The sale of the bonds was properly enjoined for the following reasons: 1.

M. Clements, Judge of the First Judicial District, Presiding. Action by Mary O’Donnell and others against the City of Bntte. From a judgment for plaintiffs, and from an order denying a new trial, defendant appeals.

B. Poindexter, a Judge of the Fifth Judicial District, Presiding. Suit by Mattie A. Thomas against Arthur Thomas and others. From an order granting a writ of possession, defendants appeal. Since the Constitution provides that “The style of all process shall be ‘The State of Montana’ * * # ” (Sec. 27, Art. VIII), the issuance of a process in any other form or style is prohibited, and the pretended order of sale upon which respondent bases her right is void.

<p>Municipal Corporations — Injuries to Property — Notice—Measure of Damages — Instructions—Objections—Review—Costs— Maps.</p> <p>Municipal Corporations — Injuries to Property — Notice of Injury — “Defect.” • •</p> <p>1. Where plaintiff sued defendant city for flooding his mine, by reason of a defective plan adopted for the construction of a sewer, the cause of the injury was not a “defect,” within Revised Codes, section 3289, providing that notice of claim for injuries must be given before the city shall be liable for damages for any defect in a bridge, street, public work, etc.</p> <p>Same — Notice—Statutes.</p> <p>2. Revised Codes, section 3289, providing that notice of claim for injuries must be given to a city or town before it shall be liable for damages caused by any defect in any bridge, street, public work, etc., having been enacted under a title “An Act relating to actions against cities and towns for damages to persons injured on streets and other public grounds by reason of the negligence of any publie officer, agent, or employee in any city or town in Montana” (Laws 1903, c. 93), such section applied only to injuries to persons, as distinguished from injuries to property.</p> <p>Same — Actions—Question for Jury.</p> <p>3. In an action against a city for the flooding of plaintiff’s mine during the progress of work in the construction of a sewer, whether such flooding resulted from the city’s negligence in carrying out a general plan of excavation for the extension of its sewer, without providing an efficient method to protect the ground from waters flowing down a gulch from above the excavation, held for the jury.</p> <p>Same — Actions—Damages—Measure.</p> <p>4. In an action against a city for flooding plaintiff’s mine, the measure of plaintiff’s damages was such an amount as it would cost to put the mine in the same condition it was in before it was flooded, with interest in the discretion of the jury.</p> <p>Appeal and Error — Objections to Instructions — Sufficiency.</p> <p>5. Where, in a suit for flooding plaintiff’s mine, plaintiff sought to recover the cost of repairing the damage, and the court charged that he was entitled to recover his necessary and reasonable expenditures in that behalf, an objection that it was not shown that the expenditures were reasonable was special, and eould not be considered on appeal, where the only objection at the trial was that certain items included in the amount sued for were not proved to be reasonable.</p> <p>Same — Review'—Harmless Error — Instructions.</p> <p>6. Where, in an aetion against a city for flooding plaintiff’s mine, it appeared that the jury must have deducted from plaintiff’s damages the amount of the necessary damages reimbursed to plaintiff from D., the owner of an undivided half interest in the mine, defendant was not prejudiced by the refusal of an instruction that in no event eould plaintiff recover the amount so received.</p> <p>Costs — Disbursements—Map.</p> <p>'7. Where a map of the premises in question is reasonably neeessary to explain the situation, the reasonable cost of making the map may be taxed as a disbursement, as authorized by Revised Codes, section 7169.</p> <p>Same — Evidence as to Expenditure.</p> <p>8. An original verified memorandum of the cost of a map, made to explain the situation, is prima facie evidence that the amount charged was necessarily expended; and the burden is on the party objecting to the taxation thereof to overcome the same.</p>

<p>Cities and Towns — Streets—Change of Grade — Damages—Existence of Municipal Corporation — Complaint—Sufficiency— Judicial Notice — Beal Property — Description — Evidence— Private Plats — Title.</p> <p>Cities and Towns — Municipal Existence — Complaint—Sufficiency.</p> <p>1. Tbe averment in a complaint against a city, that “the city of B. is a municipal corporation organized and existing under the laws of the state of Montana,” eta., held, sufficient as against the objection that the pleading did not state a cause of action in that it did not allege that the defendant was a municipal corporation at the time the wrongful act for which damages were sought was committed.</p> <p>Same — Judicial Notice.</p> <p>2. Under section 7888, Bevised Codes, judicial notice will be taken of the fact that during a certain year a city was a municipal corporation existing under the laws of this state.</p> <p>Same — Streets—Change of Grade — Beal Property — Sufficient Description.</p> <p>3. Descriptions of real property in a complaint, in an action against a city for damages occasioned by a change in the grade of a street, and in a deed introduced in evidence, held sufficient.</p> <p>Same — Private Plats — Admissibility in Evidence. ■</p> <p>4. A private plat showing the location of plaintiff’s property was admissible in evidence as an aid in identifying the realty.</p> <p>Same — Evidence—Title—Sufficiency.</p> <p>5. Where, in an action against a city for damages to property by a change in the grade of a street, plaintiff’s evidence showed that he had been in possession of the property for some time prior to the change of the grade, and had made improvements thereon, including the erection of a dwelling-house, and where during the time he was testifying he produced a deed, though unrecorded and without any direct evidence that it had ever been delivered to him, the contention that he had failed to connect himself with the title was without substantial merit.</p>

Lynch, Judge. Action by John Peterson against tbe city of Butte. From a judgment rendered against him on the pleadings, plaintiff appeals. The plea of a former action pending will not be sustained where it appears that the prior action has been dismissed. The courts are unanimous in holding that where the dismissal takes place before the commencement of the second action, the plea of former action pending cannot be sustained.

Action by Ella S. Tiggerman against the City of Butte. From a judgment for plaintiff and an order denying a motion for a new trial, defendant appeals. Section 3289, Revised Codes, provides that notice of an injury must be given to the city council, and does not provide that the notice may be left or filed with the city clerk, or any other city officer. It was insufficient. {City of Ft. Worth v. Shero, 16 Tex. Civ. App. 487, 41 S. W. 704; City of Denver v. Saulcey,.5 Colo.

Miller Smith, Judge. Action by Thomas Murpby against the Stone & Webster Engineering Corporation. From a judgment for plaintiff, and from an ofder denying a new trial, defendant appeals.

<p> Appeal from District Court, Silver Bow County; John B. McClernan, Judge. </p> <p>Action by A. B. Cohen against C. W. Clark. Plaintiff had judgment, and defendant appealed therefrom and from an order denying him a new trial.</p> <p>“Where a complaint, in an action to recover for personal services rendered, does not show whether the plaintiff relies upon a specific contract for a stipulated compensation, or an implied contract for the reasonable valúe of the services alleged, a special demurrer thereto for uncertainty and ambiguity should be sustained.” {Shade v. Sisson M. & L. Co., 115 Cal. 357, 47 Pac. 135.) The purpose of a complaint is not to ensnare or entrap the defendant, but to advise him with sufficient definiteness and certainty as to what he must meet in order that he may prepare his defense. Thé test as to whether' the complaint is sufficient in certainty and definiteness is: Would a judgment for or against the defendant bar another action upon the. same claim, and could the complaint be introduced as evidence in another action upon the same claim in support of a defense of res judicata? “The complaint must set forth the subject matter of the contract with sufficient certainty to make a possible adverse judgment a bar to another action.” (9 Cyc. 713.) “A declaration• on a contract must set forth the subject matter of the contract with sufficient certainty to make a possible adverse judgment a bar ■to another suit.” (Phillips v. Knight et al., 20 R. I. 624, 40 Atl. 762.) “The complaint must be sufficient to apprise the opposite party of the nature of the action, and be sufficient to bar another action.” (Dalton v. United By. Go., 134 Mo. App. 392, 114 S. W. 561.) If it was intended by plaintiff to declare upon an open account for debt, his complaint is bad for uncertainty and for want of facts. Mere recitals of conclusions are pleaded instead of ultimate facts. “A complaint on an account which does not state the nature of dealings between plaintiff and defendant is insufficient under a statute requiring a statement in plain and concise language so that a person of common understanding may know what is intended.” (Gise v. Cook, 152 Ind. 75, 52 N. E. 454.) “A complaint on an open account should state the items thereof with reasonable certainty. The debt on which the transactions occurred should be alleged.” (9 Current Law, 21.) “Where on action on open account containing a number of items no date except the year is alleged, an objection should be sustained, unless the defect is cured by amendment.” (Over-street v. Nashville Lumber Co., 127 Ga. 458, 56 S. E. 650.) “A complaint on account should identify and describe the claim with reasonable particularity. ” (1 Ency. PI. & Pr. 90.)</p> <p>Each count set out in plaintiff’s complaint is based upon a separate “special instance and request” of defendant. Special request is defined by Bouvier as follows: “Special Request — A request actually made at a particular time and place; this term is used in contradiction to a general request, which need not state the time when nor the place where made.”</p>

Miller Smith, Judge. Action by Patrick J. Stewart against the Stone & Webster Engineering -Corporation and another.

Original application for writ of prohibition of State of Montana out of relation of Alexander Mackel against the District Court of the Second Judicial District in and for the County of Silver Bow, and Hon. George B. Winston, Judge of the Third Judicial District, presiding.

Miller Smith, Judge. Action by Harry E. Cunningham, as state auditor of the state of Montana, against the Northwestern Improvement Company. Judgment for plaintiff, and defendant appeals. Is the Act in question one within the “police power” of the state ?

. Appeal from District Court, Lewis and Clark County; J. Miller Smith, Judge. Action by Victor Verlinda against the Stone & Webster Engineering Corporation and others. From a judgment for plaintiff against defendant corporation, and from an order denying a new trial, it appeals. The jury found by its verdict that the defendant Wallace was not guilty of negligence.

<p>Corporations — Knowledge of Incorporators — Not Imputable to Corporation, When.</p> <p>Corporations — Knowledge of Incorporators — Not Imputable to Corporation, When.</p> <p>1. Holders of an option to purchase an undivided half interest in a mine agreed with plaintiff that if he would perform certain services in taking and assaying samples, and the report was favorable, they would take up the option and convey to him one-third thereof, or a one-sixth undivided interest in the claim. Plaintiff performed the services, and the option was duly taken up, but the option purchasers refused to convey any interest to plaintiff, and thereafter, with the owner of the other undivided interest, organized a corporation, and conveyed the whole claim to it. Held, that the knowledge of such option purchasers of plaintiff’s equitable interest in the property was not imputable to the corporation and that it was a bona fide purchaser, freed from any claim of plaintiff.</p>

W. A. Roberts was convicted! of murder in tbe second degree, and he appeals from the judgment of conviction, and from an order denying a new trial. The authorities are unanimous, that a direct expression or imputation of a man’s guilt is reversible error, when made by a county attorney.

McClernan, Judge. Action by 'J. A. Poore and others against Louis Kaufman.From an order refusing to dissolve a temporary injunction, defendant appeals. The land office of the United States has sole jurisdiction in the matter of the sale of public land unless Congress has provided otherwise, and in providing for sales of public lands, if Congress does not provide the method of sale, the land office has the right and power to sell the land, under its rules and regulations.

McClernan, Judge. In the Matter of the settlement of the estate of Charles Colbert, deceased, in which Johann Kolbow and others residents of the German empire, sought to be declared heirs of the deceased, the state through the attorney general answered, controverting the rights of the petitioners. From a judgment dismissing the complaint of petitioners and an order denying them a new trial, they appeal.

B. Leslie, Judge. Action for injunction by Louisa Iverson against Louis Dilno and others. From an order granting a motion to quash an order to show cause and refusing the injunction, plaintiff appeals.

Jjynch, Judge, Action by Jennie Pelican against tbe Mutual Life Insurance Company of New York. Judgment for plaintiff, and defendant appeals from the judgment and an order denying it a new trial. Statement op the Case bt the Justice Delivering the Opinion. Action on a policy of insurance.

Action by Margaret Jenkins against tbe Northern Pacific Railway Company. From, a judgment for plaintiff, and from an order denying a new trial, defendant appeals. To constitute a cause of action for a tort, it is necessary that there should be (a) some right existing in the plaintiff, (b) some duty on the part of defendant to respect that right, (c) a breach of that duty by defendant, and (d) injury and damage as a result thereof. (Dillon v. Gt. Northern By.

Myers, Judge. Action by the First National Bank of Iowa City, Iowa, against E. E. Smith. From a judgment entered upon a directed verdict for defendant and from an order denying a new trial, plaintiff appeals. Statement op the Case.

R. C. Stewart, Judge. Action by Gertrude Boyd and another, against Roger Huffine ■and others to have determined the respective rights of the parties to the use of certain waters. From the decree and an order denying their motion for a new trial the defendants other than Hnffine have appealed.

E. H. Foley was convicted of the crime of grand larceny, and appeals from the judgment and an order denying him a new trial.

Original application for mandamus by the state, on the relation of James H. Eowe, against the district court of Silver Bow County and others.

Mc-Clernan, Judge. Action by Thomas Y. Byrnes, by Thomas Byrnes, his guardian ad litem, against the Butte Brewing Company. Held: an accident and no negligence imputable to the driver. {Young v. Co., 180 Pa. 75, 36 Atl. 403.) Although a child be too young to charge with contributory negligence, yet if it puts itself in a place of danger in reference to a moving vehicle and is injured, there is no liability on the part of the driver’s master if the driver was…

B. Leslie, Judge. Action by S. R. Swilling and another against the Cottonwood Land Company. From a judgment for plaintiffs, and from an order refusing to set aside a default, defendant appeals.

M. Clements, Judge. Action by the United Missouri River Power Company against the Wisconsin Bridge & Iron Company. From an order quashing a service of summons, plaintiff appeals. While it has not been difficult to find decisions of the court’s holding to the reasoning we contend for here — viz., construction making the statute operative and preventing advantage being taken by one’s own wrong — it has been difficult to find cases pat upon the facts.

B. Winston, Judge. Action by Anna C. Hansen and another against Johannes Larsen and others to determine the relative rights of the parties to the use of the water of Powell creek. From the decree establishing the rights of defendants Kohrs & Bielenberg, the defendant corporation Conley & MeTague Company, appeals.

Man M. Leakey was convicted of murder in the first degree, and appeals from the judgment of conviction and an order denying his motion for a new trial. It was error to exclude questions ashed of the witnesses “Wynn and Bushell, concerning the mental condition of the defendant, since it is competent for an ordinary witness to express an opinion concerning the health or physical or mental condition of another.

McClernan, Judge. Action by the Butte Land & Investment Company against Michael J. Sheehan, county treasurer of Silver Bow county, substituted for Anthony Shovlin, former treasurer of the county. From a judgment for plaintiff, defendant appeals.

Oliver Van, charged with grand larceny, was convicted and appeals from the judgment and from an order denying him a new trial. It was error for the court to give the statutory definition of larceny without instructing the jury in addition thereto that the intent of the defendant at the time of the alleged taking must have been proved beyond a reasonable doubt to have been felonious.

Action by E. F. McLean against A. H. Sellers. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>Pleadings — Amendments After Default Judgment — Statutes—• General Appearance — Notice—Estoppel—Clerical Errorst</p> <p>General Appearance — Notice—Estoppel.</p> <p>1. One who appears generally to resist a motion to amend a complaint after judgment rendered, and does resist such motion on the merits, is presumed to have submitted himself to the jurisdiction of the court for all purposes of the motion, and is estopped to claim that he did not have sufficient notice.</p> <p>Pleadings — Amendment After Default Judgment — Notice.</p> <p>2. A party’s default being a confession of only such facts as were properly pleaded, a complaint which does not state a cause of action, because of lack of a necessary allegation, cannot be amended after entry of judgment without notice to defendant.</p> <p>Same — Amendment After Judgment — Statutes.</p> <p>3. The amendment of “any pleading pr proceeding” permissible under seetion 6589, Devised Codes, upon notice to the adverse party, may be made at any time, but should not in any case go further than to supply formal defects; the limitation of six months mentioned in said section applying only to the court’s power to relieve a party from a default judgment taken against him through his mistake, inadvertence, etc.</p> <p>Same — Amendments After Default Judgment — Clerical Errors.</p> <p>4. Beld, under the rule declared in paragraph 3, supra, that plaintiff in a divorce proceeding in which defendant suffered a default judgment to be entered against her, was properly permitted, about three years after entry of judgment, to amend his complaint by substituting the word “plaintiff ” for “defendant” in the paragraph of the pleading whieh was intended to allege the jurisdictional fact of plaintiff’s residence within the state (Rev. Codes, sec. 3674), but through a clerical misprision alleged that defendant had been a resident fur the required length of time.</p> <p>(Mb. Chief Justice Bbantly dissenting.)</p>

R. C. Stewart, Judge of the Ninth Judicial District, presiding. Action by N. J. Bielenberg against J. B. Eyre and others to determine the relative rights of the parties to the use of the waters of Powell creek. Defendant J. B. Hare appeals from the decree so far as it determines the question of priority between himself and defendant Eyre.

McClernan, Judge. Action by Gus F. Peterson against the City of Butt’e. Judgment for plaintiff, and defendant appeals from it and an order denying it a new trial.

B. C. Stewart, Judge. Action to quiet title and for an injunction by John E. McDonnell and another, against John D. Huffine and others.

L. Callaway, a Judge of the Fifth Judicial District, presiding. Mandamus by tbe state, on tbe relation of 'William Stuewe, against J. J. Hindson and others, as tbe board of eounty commissioners of Lewis and Clark eounty. Judgment dismissing tbe' proceeding, and relator appeals. It may be conceded that the general rule, both in this jurisdiction and elsewhere, is that mandamus will not lie to control discretion if exercised honestly and in good faith.

Lynch, Judge. Action by Forrest S. Kinsel against tbe North Butte Mining Company, From a judgment for plaintiff and an order denying it a new trial, defendant appeals. Tbe motion for nonsuit should have been granted: (a) For the reason that the plaintiff did not show any negligence on the part of the defendant in any of the respects complained of in his complaint.

C. Webster, Judge. Action by C. F. Molt against tbe Northern Pacific Railway Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.

<p>Partnerships — Fictitious Firm Name — What is not — Pleadings —Conclusions.</p> <p>Partnership — Name of Firm — Names of Persons Interested — Sufficiency of Designation.</p> <p>1. Bevised Codes, section 5504, requires every partnership transacting business under a name which does not show the names of the partners to file a certificate stating the names of all the members and their residences and to publish the same. Seld, that the name “McLaughlin Bros.” did not come within the statute, since it may not be said, as a matter of law, that such name is fictitious and does not show the names of the persons interested in the firm.</p> <p>Pleading — Conclusions.</p> <p>2. In an action on a note to “McLaughlin Bros.” and assigned to plaintiff, an answer, alleging that said “McLaughlin Bros.” were and now are copartners doing business under the name of “McLaughlin Bros.,” and that said name is and was a designation not showing the names of the partners, did not amount to an averment that some one other than persons named “McLaughlin” were interested as partners, but was a mere conclusion.</p> <p>Same — Allegations of Answer — Sufficiency.</p> <p>3. Bevised Codes, section 6532, requiring a complaint to contain a statement of the facts constituting the cause of action in ordinary and concise language, applies to new matter alleged in the answer.</p>

E. Ewing, Judge. H. Lawson was convicted of grand larceny, and appealed from an order denying him a new trial. It is an elementary principle of criminal law that a defendant cannot be convicted upon the testimony of an accomplice unless corroborated by other testimony which in itself and without the aid of the testimony of accomplices tends directly to connect defendant with the crime.

Rosebud County; Sydney Fox, Judge. Action by Thomas J. O’Neill against the Yellowstone Irrigation District and the Sanders Co-operative Ditch Company, to test the validity of Chapter 146 of the Laws of 1909, providing for the creation, organization, and government of irrigation districts. From a judgment in favor of defendants, the plaintiff appeals.

<p>Receivers — Property Under Attachment — Insolvency—When Appointment Improper — Collateral Attack.</p> <p>Receivers- — Collateral Attack of Order Appointing.</p> <p>1. An order appointing a receiver which is only voidable cannot be successfully subjected to a collateral attack; one void may be so attacked.</p> <p>Same — Property Under Attachment — Appointment Improper.</p> <p>2. A receiver may not be appointed in attachment suits, either under subdivision 1 of section 6698, Revised Codes, or under subdivision 6 thereof.</p> <p>Same — Insolvency—Not Alone Sufficient for Appointment.</p> <p>3. The mere fact that a corporation is insolvent is not sufficient justification for the appointment of a receiver; before such an officer may be appointed, there must be a necessity therefor.</p> <p>Same — Improper Appointment.</p> <p>A 'Where plaintiff had an attachment on property worth $50,000 to satisfy an undisputed claim of $5,000-, .and the record on appeal failed to disclose any prior liens, the appointment of a receiver held unwarranted.</p> <p>Same — Preserving Property — Improper Appointment.</p> <p>5. A court of law has no authority to appoint a receiver of property under attachment for the sole purpose of preserving the property and continuing the business of a defendant pendente lite. ■</p> <p>Same — Consent of Defendant — Jurisdiction.</p> <p>6. The consent of a corporation to the appointment of a receiver to take charge of its affairs, on the ground of insolvency, did not confer jurisdiction upon the court to make it.</p>

Mc-Clernan, Judge. Action by Helen Schwanekamp against the Modern Woodmen of America. From a judgment for defendant and an order denying a motion for new trial, plaintiff appeals. The provision of the contract upon which respondent relies to defeat appellant’s claim is void.

B. C. Stewart, Judge. Action in claim and delivery by Ben Chestnut, against A. H. Sales, as sheriff of Gallatin county. Judgment for plaintiff, and defendant appeals from it and an order denying his motion for a new trial. The vital issue in the ease was as to the bona fides of the tiansaction between Terrill and Chestnut in the alleged sale of the mules, and any facts that would tend to enlighten the jury on that issue should have been brought out.

B. C. Stewart, Judge. Condemnation proceedings by the Northern Pacific Eailway Company 'against William McAdow, Florence Y. McAdow, and others. From an order of condemnation, defendants McAdow appeal. The complaint does not state facts sufficient to constitute a cause of action, in that it does not appear therefrom whether the tract of land sought to be condemned includes the whole or only a part of the entire parcel or tract. (Eev.

Suit by Oscar Andrieux and another, doing business under the name and style of the Independent Messenger Company, against the City of Butte and others. From an order granting an injunction pendente lite, defendants appeal.

Proceeding by the state in its own behalf and that of the State Orphans’ Home to have ascertained and declared the rights of all persons entitled to share in the distribution of the estate of Josiah F. Beck, deceased. From the decree Agnes Beck, widow of deceased, the state, the State Orphans’ Home, and others appealed.