Volume 46 — Montana Reports

C. Webster, Judge. Action by P. M. Reilly against Thomas G. Hatheway, Jr., City Treasurer, and another. From a judgment for defendants, plaintiff appeals. It has been repeatedly held that the best criterion for determining whether an ordinance was intended as a revenue measure or an exercise of the police power of a municipality is whether it contains any regulatory provisions.

<p>Corporations — Stock—Change from Nonassessable to Assessable —Unit of Voting Power — “Stockholders”—Statutory Construction — When Unnecessary.</p> <p>Corporations — Stock—Change from Nonassessable to Assessable — Unit of Voting Power.</p> <p>1. Held, that in enacting section 3887, Revised Codes, to the effect that a corporation whose stock is nonassessable may change it into assessable stock, with the consent of three-fourths of its stockholders, the legislature intended to and did make the individual stockholder, and not the share of stock, the unit of voting power, and that therefore such a change made with the consent of only 96 (though owning more than three-fourths of the company’s stock) out of 301 stockholders was without effect and an assessment levied in pursuance thereof void.</p> <p>Statutory Construction — When Unnecessary.</p> <p>2. Where the language employed in a statute is plain and without ambiguity, it does not require judicial construction; in such a ease courts must presume that the legislature intended what the words plainly say.</p>

<p>Homestead — Estates—Life Estates — Alienation—Abandonment.</p> <p>Homestead — Life Estate — Alienation.</p> <p>1. A homestead set apart for the use of a surviving wife constitutes a life estate which may be alienated.</p> <p>Life Estates — Alienation.</p> <p>2. The right given by section 4518, Eevised Codes, to the owner of a life estate to use the land in the same manner as the owner of a fee simple, includes the right of alienation, which is one of 'the rights inherent in the ownership of the fee.</p> <p>Same — Homestead—Alienation—Abandonment.</p> <p>3. In the absence of legislation to that effect, alienation of a homestead granted to a surviving wife does not constitute an abandonment of it.</p>

B. Leslie, Judge. 'WV E. Hill and W. A. Stanley, convicted of burglary in tbe first degree, appeal from the judgments of conviction.

E. Erickson, Judge. Action by Robert Reid against Lincoln County, tbe Board of County Commissioners of Lincoln County, and Paul D. Pratt and others, Commissioners. From a judgment for defendants, plaintiff appeals.

Mc-Clernan, Judge. Action by Nellie McCabe against tbe City of Butte. Judgment for plaintiff, and defendant appeals from it and an order denying it a new trial.

K. Cheadle, Judge. Action by F. D. Winslow against William Dundom, Sr., and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Held: in view of this, tender not necessary before bringing the action. (Citing Dixon v. Oliver, 5 Watts (Pa.), 509; Hampton v. Speckenagle, 9 Serg. & R. (Pa.) 212, 11 Am. Dec. 704; Pomeroy’s Equity Jurisprudence, sec. 1407, note; Lyman v. Gedney, 134 111. 390, 29 N. E. 282.)

B. Winston, Judge. John P. Morrison was convicted of rape, and appeals from .the judgment of conviction, and from an order denying him a new trial. The great weight of authority seems to hold that a statute defining rape, as oiir authority defines it, requires that the information should allege that the person upon whom the offense is committed is not the wife of the defendant. (People v. Miles, 9 Cal. App. 312, 101 Pac. 525; Bice v. State, 37 Tex.

Lynch, Judge. Action by Patrick J. Hennessy against Levi E. Holmes and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. Mr. Justice Smith dissenting.

Appeal from District Court, Ravalli County; Michael Donlan, a Judge of the Second Judicial District, presiding. Action by J. J. Grush and another against D. A. Bishop and another. Judgment for defendants, and-plaintiffs appeal.

<p> Appeal from, District Court, Flathead County; J. E. Erickson, Judge. </p> <p>Action by Alma Mattison against William Connerly. Judgment for plaintiff. Defendant appeals.</p>

B. Poindexter, Judge. Action by T. T. Lyon and others against the Dailey Copper Mining and Smelting Company and others. From a judgment for defendants and an order denying plaintiffs a new trial, the latter appeal.

<p>Application for writ of habeas corpus by Maude Jones.</p>

Miller Smith, Judge. Action by Louis Stadler and another to secure an injunction restraining the city of Helena from selling certain real property for delinquent special assessments. Defendant had judgment and plaintiffs appeal.

<p> Appeal from District Court, Lewis and Clark County; J. Miller Smith, Judge. </p> <p>Action by Arthur L. Robinson against F. L. Cole. From a judgment for defendant, plaintiff appeals.</p>

Utter, Judge. Action by Joseph F. Valadon against A. S. Lohman. From a judgment of the district court dismissing an appeal from a judgment in a justice’s court, plaintiff appeals.

Action by the Rea Bros. Sheep Company against Nils Rudi and another, partners as Rudi Bros. From an order granting a preliminary injunction, .defendants appeal. The contentions herein urged on behalf of appellants do not in any manner conflict with or intrude upon the rule announced in Monroe v. Cannon, 24 Mont. 316, 81 Am.

J. Lynch, Judge. Action by A. B. Melzner, administrator of Omer Haddox, deceased, against tbe Northern Pacific Railway Company and another. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The complaint does not state facts sufficient to constitute a cause of action against said defendants, or either of them, and the demurrer thereto should have been sustained.

J. Lynch, Judge. Action by Thomas Haddox against the Northern Pacific Railway Company and another. From a judgment for plaintiff and an order denying a motion for new trial, defendants appeal.

Original application for writ of mandate by the state, on the relation of Francis H. McGowan and another, against J. Lee Sedgwick, county clerk of Chouteau county, to compel respondent to file certain certificates of nominations'for public office, and to print the names of the candidates on the official ballot.

Action by J. H. Shober, Jr., against William M. Blackford, as administrator of the estate of Philip I. Moule, deceased. Held: “In so far as the court held that a recovery may be had upon a quantum, meruit in this character of a case we think there was no error. The rule is well settled that though a contract, to be valid under the statute (Civ.

K. Cheadle, Judge. Action by M. Killeen against the Barnes-King Development Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. That plaintiff assumed the risk incident to his employment, see Fotheringill v. Washoe Copper Co., 43 Mont. 485, 117 Pac. 86; Butler v. Frazee, 211 U. S. 459, 53 L. Ed. 281, 29 Sup. Ct. Rep. 136; Mayor v. Queen City Lumber Co., 64 Wash. 567, 117 Pae. 392.

Miller Smith, Judge. Action by H. J. Herrin against Henry Sieben and another, copartners as Sieben & Grimes. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

Mc-Clernan, Judge. Action by Frank Escallier against the Great Northern Railway Company and another. Judgment for defendants, and plaintiff appeals from it and an order denying him a new trial. May one who is lulled into a feeling of security by the fact that the gates are open and the statutory signals of trains at crossings are not given be charged with contributory negligence, as a matter of law, if he fails to stop, look and listen for danger before making the crossing?

Action by Margaret Hannon against Thomas B. Hannon, administrator of the estate of George W. Hannon, deceased, and others. From a judgment sustaining a demurrer to defendants’ answer, they appeal. The question in controversy in this ease is, Does section 3719 of the Revised Codes provide the only way in law or equity by which a widow may be barred of her dower?

Action by the First National Bank of Thermopolis against S. W. Gebo, in which the State Savings Bank of Butte, Montana, intervened, and applied for an order discharging a writ of attachment. Plaintiff thereupon applied to amend, and its motion being overruled and the attachment discharged, he appeals. Did the court below err in sustaining respondent’s motion to discharge the writ of attachment?

M. Clements, Judge. Action by J. C. Somerville and others against the St. Lonis Mining and Milling Company of Montana. From an order denying an injunction, plaintiffs appeal. By virtue of this statement in the certificate of incorporation and the statement in the certificate of stock issued, that the stock should be nonassessable, a contract was entered into between the corporation and each stockholder that no assessment would be levied upon the stock issued to him.

<p>Personal Injuries — Bailroad Employees — Interstate Commerce— Federal Employer’s Liability Act — Proper Party Plaintiff— C omplaint — Insufficiency.</p> <p>Personal Injuries — Interstate Commerce — Federal Employer’s Liability Act —Applicability.</p> <p>1. Plaintiff administrator having alleged in his complaint that when his intestate was injured he was in the employment of defendant railway company in interstate c.ommerce, his right of recovery was determinable by the provisions of the Federal Employer’s Liability Act (35 Stats, at Large, 65, as amended by 36 Stats, at Large, 291), the state laws covering the same field being impliedly superseded by such Act.</p> <p>Same — Proper Party Plaintiff.</p> <p>2. Under section 9 of the Federal Employer’s Liability Act, providing that the right of action given by the Act to one suffering injury shall survive to his or her personal representative for the benefit of certain named beneficiaries, the proper party plaintiff is the personal representative of decedent.</p> <p>Same — Beneficiaries—Complaint.</p> <p>3. In an action, under the Federal Employer’s Liability Act, brought by the personal representative of one injured while employed by a common carrier in interstate commerce, the complaint must allege, and the proof show, that there are in existence persons answering the description of the beneficiaries named in the statute.</p>

<p>Attorneys — Disbarment—Evidence—Insufficiency — Referees — Findings — G onclusiveness.</p> <p>Attorneys — Disbarment—Evidence—Insufficiency.</p> <p>1. Evidence, though showing conduct highly censurable from a moral or ethical standpoint’, held, insufficient to warrant the disbarment of an attorney on charges of malpractice in his profession and crimes involving moral turpitude.</p> <p>Same — -Referee—Findings—Conclusiveness.</p> <p>2. The rule that the supreme- eourt will not interfere with findings of the district court based upon conflicting evidence applies in the ease of findings made by a referee appointed to take the testimony in a disbarment proceeding and make and report findings of fact and conclusions of law.</p>

Appeal' from District Court, Cascade County'; J. B. Leslie, Judge. Action by R. S. Ford to enjoin tbe City of Great Falls. From a judgment for defendant, plaintiff appeals.

'Appeal from District Court, Meagher County; E. K. Cheadle, Judge. Action by William T. Ford and another against L. H. Drake, Sr., and another. From a judgment in favor of plaintiffs and an order denying them a new trial, defendants appeal.

Lee McCulloch, Judge. Petition by Charles Searles for a retail liquor dealer’s license at Florence, Ravalli county. From a judgment affirming the action of the board of county commissioners in denying such license, the petitioner appeals. Citing: Perry v. City Council of Salt Lake City, 7 Utah, 143, 11 L. R. A. 446, 25 Pac. 739, 998; Crowley v. Christensen, 137 U. S. 86, 34 L. Ed. 620,11 Sup. Ct.

Utter, Judge. Isadoee Willette was convicted of the crime of grand larceny, and appeals from the judgment of conviction and an order denying him a new trial.

Utter, Judge. Ira M. Booth was convicted of the crime of grand larceny, and appeals from the judgment and an order denying his motion for a new trial.

McClernan, Judge. Action by Mrs. G. Phillips against the Butte Jockey Club and Pair Association to recover damages for personal injuries. Prom a judgment for plaintiff and an order denying it a new trial, defendant appeals.

Original application by G-us J. Kobl for writ of mandate to compel the district court of Silver Bow county and one of its judges to enter an order dismissing a certain cause. Held: had a right to have it settled by Judge Lindsay, the retiring judge.

Pierson, Judge. Action by James A. Walsb against Omar Hoskins and others. From a judgment for defendants, plaintiff appeals. The language of section 6422, Bevised Codes, is a copy of section 66, Code of Civil Procedure, of New York, and the court of that state, after quoting the section, said in Peri v. New York G. By.

B. C. Stewart, Judge of the Ninth Judicial District, presiding. Action by the Washoe Copper Company against Edward Hickey, administrator of the estate of Michael A. Hickey, deceased, and others. From a judgment in favor of plaintiff, defendants appeal.

B. Leslie, Judge. Action by James Lenaban against M. B. Casey to obtain a decree dissolving a partnership existing between them and an adjustment of the partnership affairs. Plaintiff appeals from a judgment in favor of defendant and an order denying his motion for a new trial.

J. Lynch, Judge. Action in claim and delivery by the City of Butte against Chas. P. Nevin to recover possession of a copy of a report relative to the city’s financial affairs, etc. From a judgment for defendant, plaintiff city appeals. Replevin will lie for the recovery of parish records. (Stebbins v. Jennings, 10 Pick. (Mass.) 172; Sawyer v. Baldwin, 11 Pick.

Original application for writ of mandate, by the American Smelting and Refining Company and another, to compel the district court of Lewis and Clark county, and J. Miller Smith, one of its judges, to… Held: without a single exception, so far as we have been able to find, that a judgment of dismissal or of nonsuit is not upon the merits, and is, therefore, not a bar to another suit. (23 Cyc. 1137, note 38; 6 Ency. of PI. & Pr. 993; Andrews et al. v. School Dist.

Action by H. G. Potter against R. T. Furnish and others, as the board of county commissioners of Custer County, to enjoin three bond issues aggregating $170,000, to secure funds for the construction of bridges. From a judgment for defendants, plaintiff appeals.

J. Lynch, Judge. Action by Edwin Gleason against the Missouri River Power Company and another to recover damages for personal injuries. Plaintiff had judgment, and from it and an order denying them a new trial, defendants appeal. Where the appellate court is in the same position as the jury to pass upon the facts, and the facts show the jury’s findings to have been impossible or based upon speculation, the cause will be reversed.

Utter, Judge. Action by R. O. Lunke against Peter Egeland and Jens Norgaard. Plaintiff appeals from an order dissolving a temporary injunction.

B. Leslie, Judge. Action by Lars Vasby against the United States Gypsum Company and Chas. Okerman, its foreman, to recover damages sustained by plaintiff in the course of his employment. Plaintiff had judgment for $10,500, and defendants appeal from it and an order denying them a new trial. This action is based upon the allegation that the defendant, Charles Okerman, ordered the plaintiff to work in a dangerous place in the mine, where the plaintiff was hurt.

Original application for writ of supervisory control, by Ludwig Nipp, to review and set aside an order of the district court of Fergus county, made on application for habeas corpus, awarding to Mary Nipp, relator’s divorced wife, the custody of their minor son.

Pierson, Judge. Action by Yellowstone County against the First Trust & Savings Bank, of Billings, Montana, and S. G. Reynolds, receiver, to have certain county funds deposited in defendant bank declared a trust fund and entitled to preference in the distribution of its assets. Judgment for defendants, and plaintiff county appeals therefrom.

J. Lynch, Judge. Action by J. P. Emerson against the Butte Electric Bailway Company and J. B. Wharton. From a judgment in favor of plaintiff the railway company appeals.

. Lee McCullough, Judge. A. C. Thomas, convicted of the crime of grand larceny, appealed from the judgment and an order denying him a new trial.

Rattan, Judge. Martin Nicholas was convicted of the crime of rape and appeals from the judgment of conviction.

Rattan, Judge. Action by John Raas against U. S. G. Sharp and Fred. Runyan. Judgment in favor of plaintiff, and defendants appeal from it and an order denying them a new trial.

Action by E. A. Arnold against the city of Miles City, its mayor, clerk and council, for the purpose of enjoining the sale of certain bonds to secure funds with which to construct a bridge. Judgment for defendants, from which plaintiff appeals.

K. Cheadle, Judge of the Tenth Judicial District, presiding. Action by Nelson Spaulding against Leonard Stone and others to determine the respective rights of the parties in the use of the water flowing in Spaulding brook. Plaintiff appeals from the decree and from an order denying his motion for a new trial. Mr. Justice Holloway dissents.

Original application, by the state, on the relation of Bessie Goodman, for writ of mandate to compel J. Miller Smith, one of the judges of the district court in and for Lewis and Clark county, to recognize an affidavit disqualifying him from further acting in a probate proceeding and order a transfer thereof to department one of said court.

Action by George W. Myers against Henry Bender. From a judgment for plaintiff and an order denying bim a new trial, defendant appeals.

Action by William Rairden against W. A. Hedrick. Judgment for defendant, and plaintiff appeals from it and an order denying him a new trial.

'Action by Henry Lackman against Edgar Simpson and others, partners, doing business under the firm name of Simpson Brothers. Held: that this was a waiver of the requirements, and plaintiff could recover on the contract without showing that they had stacked the remainder of the lumber. A party who sues on a special contract to recover compensation alleged to be due on its performance must show performance on his part, the burden of proof being on the plaintiff.

M. Clements, Judge. Action by Lewis Penwell against C. M. Flickinger and W. R. Strong, copartners doing business under the firm name and style of Flickinger & Strong. From a judgment in favor of plaintiff, defendants appeal. A voluntary payment of the debt of another by a third person, not subsequently ratified, cannot be made the basis of an action against the original debtor to recover the amount so voluntarily paid.

J. Lynch, Judge. Action by Mary Bush, as executrix of the estate of Mary Miller, deceased, against Charles A. Baker. From a judgment of dismissal of an appeal from a justice’s court, defendant appeals. The statute requiring the justification of sureties is directory and for the benefit of the respondent. (Morin v. Wells, 30 Mont. 76, 75 Pae. 688; State v. District Court, 22 Mont. 449, 74 Am.

Action by Mary O’Malley against John O’Malley to recover her alleged dower interest in certain real estate. Judgment for defendant. From an order denying her motion for a new trial, she appeals. Our position is that the decree of divorce after seisin did not take away or destroy the dower right of plaintiff.

Miller Smith, Judge. Action by Matilde Hollenback against the Stone & Webster Engineering Corporation, and I. H. Gohrmley, its… Held: “A company maintaining electrical wires over which a high voltage of electricity is conveyed, rendering them highly dangerous to others, is under the duty of using the necessary care and prudence at places where others may have the right to go, either for work, business or pleasure, to prevent injury.” (See, also, Thomas v. Wheeling…

B. C. Stewart, Judge. Action by Frank Lokowich, and others,- to enjoin the city of Helena from diverting the waters of Beaver creek from the watershed of said stream. From a judgment of dismissal and from an order overruling a motion for a new trial, plaintiffs appeal.

Lee Mc-Culloch, Judge. Action by W. D. Lovell against C. C. Willis. From an order setting aside a default and permitting defendant to answer, plaintiff appeals. Mr. Justice Holloway dissenting.

E. Erickson, Judge. Action by William M. Ridpath against August and Retha Heller to recover for the breach of a warranty against encumbrances. From a judgment in favor of plaintiff and an order overruling their motion for a new trial, defendants appeal.

B. Leslie, Judge. I. J. Murphy, convicted of the crime of grand larceny, appealed from the judgment and an order denying him a new trial. . Where conviction is sought upon circumstantial evidence, all the circumstances proved must be consistent with each other, and with the hypothesis that the accused is guilty, and at the same time inconsistent with any other rational hypothesis. {State v. Suitor, 43 Mont. 31, Ann.

'Appeal from District Court, Valley County; Frank N. Utter, Judge. Action by Peter Marrón to recover damages from defendant Great Northern Railway Company for the destruction of property caused by fires started by the negligent operation of its locomotives. From a judgment in favor of plaintiff, defendant appeals.