Volume 48 — Montana Reports

Miller Smith, Judge of the First Judicial District, presiding. Action by Paul Michalsky against the Centennial Brewing Company, a corporation, and another. From a judgment for plaintiff and an order denying them a new trial, defendants appeal. If dangers are obvious (and plaintiff so. alleges), -the law charges knowledge. The law does not require warning from the master where the dangers are obvious.

W. Pierson, Judge. Action by O. F. Brown, trustee, against the Erb-Harper-Rigney Company and others to foreclose a chattel mortgage. From an order refusing to appoint a receiver pendente lite, plaintiff appeals.

Original application for mandamus by tbe state, on relation of 'William Lang, against Eobert Furnish and others, commissioners of Custer county. Mr. Chas. 8. Loud, appearing in behalf of the signers of the Wibaux and Ismay petitions for the exclusion of territory from the proposed new county of Fallon, who by order of the district court had been made parties respondent, submitted a brief and argued the cause orally.

R. C. Stewart, Judge. In the Matter of the estate of Martha Roberts, Stephen Roberts, as administrator, filed a petition praying citation against Willard Roberts to compel him to make disclosure of the disposition of goods and chattels belonging to the estate. From an order requiring the disclosure, defendant appeals.

'Appeal from District Court, Teton County; J. B. Leslie, Judge. Proceedings in eminent domain by tbe Great Falls & Teton County Railway Company against E. H. Ganong and others. From an order in defendants’ favor, plaintiff appeals.

B. Leslie, Judge. Condemnation Proceedings by the Great Falls & Teton County Railway Company against E. H. Ganong and others. From certain findings and an order made to condemn land for railroad purposes, defendants appeal.

Miller Smith, a Judge of the First Judicial District, presiding. Action by R. S. Leveridge and another against Tom Hennessy and another. From an order granting a new trial, plaintiffs appeal.

<p> Appeal from District Court, Chotean County; Jno. W. Tat-tan, Judge. </p> <p>Action by Thomas J. 0 ’Hanlon and another against the Ruby Gulch Mining Company. From an order granting a motion for new trial plaintiffs appeal.</p> <p>Before one cotenant can acquire the interest of his eotenant in a mining claim, he must either proceed strictly in accordance with the provisions of section 2324, United States Revised Statutes ( 5 Fed. Stats. Ann. 19, U. S. Comp. Stats. 1901, p. 1426), or he must hold the entire claim adversely for a period of ten years. The relation of co-owners in a mining claim is such that the doing of the annual representation wrork by one inures to the benefit of all. And since Carter did the representing each year down to the time when defendant bought Carter out, the title of plaintiffs to the O’Hanlon one-third interest was as good as Carter’s title to the two-thirds interest. Mere lapse of time, short of the statute of limitations, does not constitute laches. There must be some act or omission of the party to whom laches is sought to be attributed which affects the other party so unfavorably as to render it inequitable to excuse the delay. What would be laches in one case might not constitute such in another. The question is one addressed to the sound discretion of the court, depending upon all of the facts of the particular case. {The Queen of the Pacific, 61 Fed. 213; Babb v. Sullivan, 43 S. C. 436, 21 S. E. 277.) Laches is defined as inexcusable delay in asserting a right. One who acts as soon as possible after learning of his right, or that his right has been invaded, cannot be charged with delay. {Byrne v. Schuyler Electric Mfg. Co., 65 Conn. 336, 28 L. R. A. 304, 31 Atl. 833.) Under the Code of Procedure it is held that laches is an equitable defense, which, unless disclosed by the complaint, must be proved by the answer, and the mere appearance of the lapse of time is not sufficient to raise the issue. {Goaj v. PLavermale, 27 Wash. 390, 67 Pac. 804.)</p> <p>In order to make a notice of forfeiture valid, it must be served upon the co-owners, and our contention is that the administrator of the estate was not a co-owner, but that the heirs of Thomas O’Hanlon, deceased, were the owners of whatever interest he had in said mining claim at the time of his death. {Elder v. Eorseshoe Min. etc. Go., 9 S. D. 636, 62 Am. St. Eep. 895, 70 N. W. 1060; Billings v. Aspen Min. etc. Co., 51 Fed. 338, 2 C. C. A. 252.)</p> <p>Plaintiffs, as the heirs of Thomas O’Hanlon, deceased, had either actual or constructive knowledge of what property their father died seised of. Actual knowledge appears from the testimony, constructive knowledge from the record of the deeds to their father. It was therefore their duty to make inquiry as to the facts relating to their title, if any, and they are charged with notice of the facts which such inquiry would have elicited. This is peculiarly so in cases involving mining property. {Johnston v. Standard Min. Co., 148 U. S. 360, 37 L. Ed. 480, 13 Sup. Ct. Eep. 585, 17 Morr. Min. Eep. 554; Mantle v. Speculator Min. Co., 27 Mont. 473, 71 Pac. 665.) Such inquiry would have disclosed the claim to full ownership, first by Carter, and second by his grantee; that there was a hostile holding to and a repudiation of the former cotenancy; that those persons, respectively, were claiming the property solely, were in exclusive possession of the same, and were expending large sums of money in its development, of which they also had actual knowledge. In addition to this they knew, or should have known, had they made the inquiry, that this was an unpatented mining claim; that the federal statute requires $100 per annum of improvements to be made on such a claim; that they had paid no portion of such sum, nor offered so to do. Further, on inquiry at the county clerk’s office they would have ascertained that it was asserted this claim had been advertised out. As to the duty to inquire, see Eelmoc v. Long, 35 Mont. 139, 88 Pae. 778; Fuller v. Montague, 59 Fed. 212, 8 C. C. A. 100; Hardt v. Eeidweyer, 152 U. S'. 547, 38 L. Ed. 548, 14 Sup. Ct. Rep. 671; Wood v. Carpenter, 101 U. S. 135, 25 L. Ed. 807; Foster v. Mansfield etc. R. Co., 146 U. S. 88, 36 L. Ed. 899, 13 Sup. Ct. Rep. 28.</p> <p>A person claiming an interest in property must be diligent in asserting his rights. “The law helps the vigilant before those who sleep on their rights.” (Rev. Codes, sec. 6195.) Where a delay appears such as in this case, the party must show an excuse therefor, or it is conclusively presumed that none exists. (Kavanaugh v. Flavin, 35 Mont. 133, 88 Pac. 764; Bell v. Hudson, 73 Cal. 285, 2 Am. St. Rep. 791, 14 Pac. 791.) Where the rights of third parties might be affected by the delay, the complainant must make a satisfactory showing or excuse for the delay. (McNeil v. McNeil, 170 Fed. 289, 95 C. C. A. 485; Bower v. Stein, 177 Fed. 673, 101 C. C. A. 299.) Failure to search the records for several years is laches. (Redd v. Brun, 157 Fed. 190, 84 C. C. A. 638.) The owner of lands, who knows that another is in possession improving the property under a deed or contract of sale, may not wait for the whole statutory period to eject the purchaser, regardless of the plaintiff’s laches. (Kessler v. Ensley Co., 123 Fed. 546.)</p> <p>A party claiming an interest in a mining claim may lose the same by abandonment. “Being a question of intent it operates instanter.” (27 Cyc. 596 et seq.) “Lapse of time is persuasive evidence of its existence.” (Note 21.) “The statute of limitations has nothing to do with it.” (Note 22.) “Nor does it involve an estoppel.” (Note 23.) “It need not be specially pleaded, but may be shown under a general denial or general allegation of title.” (Note 24.) “Abandonment may arise from a single or a series of acts continued through a long space of time. It is to be determined by all the circumstances of the case.” (Note 25.) “The statement of a party that he did not intend to abandon the claim is not conclusive.” (Note 35.) An undivided interest may be abandoned. (Black v. Elkhorn Min. Co., 163 U. S. 445, 41 L. Ed. 221, 16 Sup. Ct. Rep. 1101, 18 Morr. Min. Rep. 375. See, also, TrevasMs v. Peard, 111 Cal. 599, 44 Pac. 246, 18 Morr. Min. Rep. 353; Muse v. Arlington Hotel Go., 68 Fed. 637; Harhrader v. Cwi-roll, 76 Fed. 474, 18 Morr. Min. Rep. 474.)</p>

<p>Contracts—Interpretation—Payment Out of Special Fund— Nature of Liability;—Appeal—Briefs—Assignments of Error —Waiver.</p> <p>Appeal—Briefs—Assignments of Error—Waiver.</p> <p>1. Assignments of error not argued in appellant’s brief will be treated as waived.</p> <p>Contracts—Payment Out of Special Fund—Nature of Liability.</p> <p>2. Held, under the rules prescribed by the Codes for the interpretation of contracts, that by a writing which provided that a loan to a corporation should be repaid monthly “out of the first. earnings of its business, after deducting running expenses,” it was not intended to create a general liability on the part of the company to be paid after a reasonable time, but to make the indebtedness payable out of a special fund consisting of the net proceeds as rapidly as they accumulated.</p> <p>Same—When Interpretation Unnecessary.</p> <p>3. Where the words employed in a written contract are clear,'certain and unambiguous, interpretation may not be resorted to to ascertain its meaning.</p> <p>Same—Interpretation—Province of Courts.</p> <p>4. It is the province of courts to interpret contracts which are open to interpretation, not to'make new ones for the parties or to alter or amend those which they themselves have made.</p>

Lee McCulloch, Judge. Action by John Gauss against Louise C. Tramp, as administratrix with will annexed of Olive Ahrens, deceased. From a judgment for plaintiff, defendant appeals. By the provisions of section 7532, Revised Codes, the presentation of a claim against the estate is a condition precedent to the maintenance of the action; and by section 7525 a presentation of it within the time limited in the notice is a prerequisite to recovery.

<p> Quieting Title—Cities mid Towns—Streets mid Alleys—Prescription—Burden of Proof—Evidence—Adverse Use—Insufficiency—Statutes. </p> <p>Cities and Towns—Streets and Alleys—Prescription—Burden of Proof.</p> <p>1. Defendant city, asserting title to real property by reason of a right acquired through adverse use, had the burden of establishing, by direct or circumstantial evidence, every element necessary to constitute its alleged claim, one of which elements was the fixing of a definite date at which the statute of limitations began to run.</p> <p>Same—Adverse Use—Evidence.</p> <p>2. Where the only evidence tending to show the date at which defendant city assumed to exereise control over land, title to which it asserted under the doctrine of prescription, by the construction of a ditch thereon, was to the effect that the work had been done in June or July of a certain year and that it required two or three days to complete it, the only rational conclusion dedueible therefrom was that it was not done until the last two or three days of July; held, therefore, that the statute was not put in motion until July 28 of that year.</p> <p>[As to the establishment of highways by prescription, see note in 57 Am. St. Kep. 744.]</p> <p>Same—Adverse Use—Insufficiency.</p> <p>3. Under section 1340, Revised Codes (sec. 2603, Pol. Code, 1895), the mere use of land by the public as a street for the statutory period, not coupled with an assumption of jurisdiction over it by the city authorities, was insufficient to clothe the city with title by prescription.</p> <p>Same—Public Highways—Definition— Statutes.</p> <p>4. Obiter: By section 1337, Revised Codes (see. 2600, Pol. Code 1895), those roads only are declared to be public highways which had been established by the public authorities or were recognized by them and used generally by the public, or which had become such by prescription or adverse use, at the time of its enactment.</p> <p>Same—Streets and Alleys—Control—Statutes.</p> <p>5. Held, that though sections 1337 and 1340, Revised Codes, are parts of an Act relating in terms to county roads (Laws 1903, Chap. 44), the legislature in providing in the former that not only roads, but also streets, alleys, etc., should be deemed public highways, and in the latter that no highway as thus defined should be vacated otherwise than as provided therein, and no route of travel should thereafter become a highway by mere use not coupled with a declaration to that effect by the county commissioners, impliedly ordained that use of a strip of land within the limits of a city or town for street or alley purposes should not be deemed adverse until assumption of jurisdiction over it by the city authorities; held, further, that by naming, in the latter section, the board of county commissioners only as the agency through which roads, streets, etc., may be established or vacated, it was not intended to invest the board with, and deprive the city authorities of, control over streets, alleys, etc. (See, also, opinion on motion'for rehearing.)</p>

<p> Appeal from District Court, Park Comity; Albert P. Stark, Judge. </p> <p>Election contest by W. E. Brown against Victor W. Foster. Judgment for the contestant, and the contestee appeals.</p>

B. C. Stewart, Judge. Action by Alexander Westlake against the Keating Gold Mining Company and another. Plaintiff appeals from the judgment of nonsuit. The evidence showed that at the time of the explosion there was a quantity in excess of 4,000 pounds of dynamite on this level stored near the shaft and in the thawer in plain violation of this statute. This in itself constituted negligence. (Cameron v. EenyomCormell Com. Co., 22 Mont. 312, 74 Am.

McCleman, Judge. Action by Charles W. Mosher against Sutton’s New Theater Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The master need exercise only ordinary care to provide the servant with a reasonably safe place to work. (Fearon v. Mullins, 35 Mont. 232, 88 Pae. 794; Leary v. Anaconda Copper Min. Co., 36 Mont. 157, 92 Pae. 477; Longpre v. Big Blackfoot Mill.

<p> Appeal from District Court, Ravalli County; R. Lee McCulloch, Judge. </p> <p>Action by Fred Reynolds against Horace Smith. From a judgment for plaintiff, defendant appeals.</p>

Geo. W. Pierson, Judge. Action by John Dahmer against the Northern Pacific Bail-way Company and Michael McDonough. Plaintiff had judgment, and defendants appeal from it and an order denying them a new trial. .

C. Webster, Judge. Action by Thady Lizott against the Big Blackfoot Milling Company. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.

B. Winston, Judge of the Third Judicial District, presiding. Action by the Western Mining Supply Company against A. B. Melzner, as administrator of John J. Quinn, deceased, and others. From an order denying plaintiff’s motion for a new trial, plaintiff appeals.

In the matter of the estate of Gideon E. Blackburn, deceased. Petition by Hannah A. Blackburn for the removal of Chas. A. Blackburn, as administrator of said estate. From an order dismissing the proceeding, petitioner appeals. The contention of appellant briefly is that section 7450, Be-vised Codes, carries its own interpretation. It is neither ambiguous nor uncertain.

C. Webster, Judge. Action by Ambrose McFarland against J. J. Welch. Judgment for plaintiff and defendant appeals from it and an order denying him a new trial.

B. C. Stewart, Judge. Action by Joseph B. Wine against the Northern Pacific Bail-way Company. From an adverse judgment and order, defendant appeals. The waters of the Missouri river, which were backed up by the lower gorge and held on the lowland, to the west of defendant’s embankment, formed a continuous body with the Missouri river, and were a part thereof, and governed by the rule of law announced in the case of Fordham v. Northern Pacific B. Co., 30 Mont. 421, 104 Am.

W. Tat-tan, Judge. Action by Henry Cuerth and. wife against John Arbogast. From a judgment for plaintiffs and an order denying a new trial defendant appeals.

C. Webster, Judge. Action by the Anaconda Copper Mining Company against Charles Thomas. Judgment on the pleadings in favor of defendant; defendant appeals from an order denying a motion to vacate and set aside the judgment.

'Appeal from District Court, Missoula County; F. C. Webster, Judge. Action by Angelo De Sandro against tbe Missoula Light & Water Company and another. From a judgment for plaintiff, and from an order denying a new trial, the defendant company appeals.

Lynch,' Judge. Action by Flora Maronen and. others against the Anaconda Copper Mining Company. From a judgment for defendant and an order denying a motion for new trial, plaintiffs appeal. The complaint in this ease states a cause of action in favor of the plaintiffs and against the defendant. The action is based upon section 8536 of the Revised Codes. A violation of the provisions of the section is a wrongful and unlawful act. It is a crime.

Action by T. N. Howell against Wallace Bent and others. Judgment for defendants, and plaintiff appeals from it and an order denying a new trial.

Lynch, Judge. Action by A. A. Grorud against J. P. Lossl and. others. From a judgment for plaintiff and an order denying a new trial, defendants appeal. The issue in this case is whether or not the defendants maliciously and without probable cause caused the arrest or prosecution of the plaintiff.

Stark, Judge. Action by the Northern Pacific Railway Company against Fred J. Mjelde, Treasurer of Park County. From a judgment for defendant, plaintiff appeals. . The question for decision is whether the coal, which is the property of the plaintiff by virtue of the exception or reservation contained in the deed, is subject to taxation.

Lynch, Judge. Action by Martin Gilmore and others against M. R. Ostronich. From a judgment for plaintiffs and an order denying him a new trial defendant appeals.

K. Cheadle, Judge. Action by John P. Barnes against D. F. Smith and another. From a judgment for defendants, plaintiff appeals.

Ayers, Judge of the Eourth Judicial District, presiding. Proceedings in mandamus by tbe state, on relation of W. W. Hillis, against Stephen Sullivan, as treasurer of Lewis and Clark county. From a judgment directing the issuance of a peremptory writ and an order denying a new trial, defendant appeals. Citing the following authorities dealing with the extent and character of the powers granted to each of the several departments of government: State ex rel.

Miller Smith, Judge. Action by G. W. Smith against Henry Zimmer. Judgment for plaintiff, and defendant appeals from it and an order denying his motion for new trial.

R. C. Stewart, Judge of the Ninth Judicial District, presiding. Action by A. W. Goldsmith, as executor of the last will and testament of Henry L. Frank, deceased, against James A. Murray. Judgment for defendant. ■ From an order denying his motion for a new trial, plaintiff appeals.

Duncan, Judge. Action by Thomas N. Marlowe against the Michigan Stove Company. Judgment in a justice’s court for plaintiff, and, from an order of the district court dismissing its appeal, defendant appeals.

Original application by the state, at the relation of C. A. Gravely, for a writ of mandate to compel S. V. Stewart, governor, and others, as members of the state board of land commissioners, and Sidney Miller, as register of state lands, to confirm a sale of state school lands and perform certain other acts with reference thereto.

'Appeal from District Court, Powell County; W. B. C. Stewart, Judge of the Ninth Judicial District, presiding. Held: therefore, that the prisoner was entitled to credit upon the basis of the statute under which he was sentenced. Normally, any and every natural person, irrespective of his public or private character or his personal status, is liable in an action for false imprisonment whenever such person appears to have unlawfully detained another.

Miller Smith, Judge. Action by T. M. Brown, alias Tom Sontag, against the Independent Publishing Company, to recover damages on account of certain libelous statements in its newspaper. From a judgment for defendant, plaintiff appeals.

Webster, Judge. 3. L. Chevigny was convicted of tbe crime of arson and appeals from the judgment and an order denying his motion for a new trial.

Lynch, Judge. Action by the Butte Water Company against the city of Butte. From a judgment for plaintiff, defendant appeals.

'Appeal from District Court, Silver Bow County; Michael Donlan, Judge. Suit by Louis Kaufman against tbe city of Butte and its street commissioner. Decree for defendants. Plaintiff appeals from an order denying bis motion for a new trial. Tbe plat of tbe Central addition was erroneously admitted. It does not disclose tbe width of Oregon avenue. (See. 2031, Fifth Div., Comp.

Original application for mandamus by the state, on the relation of A. R. Jacobs against the district court of the fifth judicial district, for Beaverhead county, and W. A. Clark, a judge thereof.

Lee Mc-Culloch, Judge. •Action by Edward Donlan against Lewis Arnold and wife. Judgment for defendants, and plaintiff appeals. Appellant contends tbat there was an oral contract entered into between the parties to this action, whereby the defendants, in consideration of plaintiff’s promise to pay $500, agreed to extend the time within which the plaintiff could remove his timber for one year.

Action by Frank A. Leitner and another, copartners, doing business as Leitner & McCoy, against R. D. Currier. From an order granting a new trial plaintiffs appeal.

<p>Personal Injuries—Master and Servant—Proximate Cause— Tools and Appliances—Duty of Master—Causal Connection Between Injuries and Negligence—Evidence—Insufficiency— New Trial Order—Affirmance.</p> <p>Appeal—New Trial Order—Affirmance-, When.</p> <p>1. Where an order granting a new trial is general in terms, it will be affirmed if it may be justified upon any of the grounds assigned in the notice of intention to move for a new trial, regardless of the reasons given by the court for its ruling.</p> <p>Personal Injuries—Negligence-—-Proximate Cause.</p> <p>2. It is only such negligent acts as bear a direct, proximate and causal relation to an injury that give a cause ef aetion.</p> <p>[As to doetrine of proximate and remote causes, see note in 36 Am. St. Rep. 807.]</p> <p>Same.</p> <p>3. The “proximate cause” of an injury is that which, in a natural and continuous sequence, unbroken by any new, independent cause, produces the injury, and without which the injury would not have occurred.</p> <p>Same—Causal Connection Between Injury and Negligence.</p> <p>4. Before negligence can become' the basis of recovery in a personal injury aetion, a causal connection must be shown between it and the injury complained of.</p> <p>Same—Proximate Cause—Proof.</p> <p>5. While the efficient cause of a personal injury may be preved by indirect evidence, the circumstances must be such as to tend affirmatively to show it, to the exclusion of any theory inconsistent therewith.</p> <p>Same—Master and Servant—Tools and Appliances—Duty of Master.</p> <p>6. An employer is not an insurer, and is not required to’ select the safest appliances nor the best method for their operation, but only to furnish the appliances in general use for the same purpose, and operated in the same way, by reasonably prudent and careful men under like circumstances.</p> <p>Same—Causal Connection Between Injury and Negligence—Evidence—Insufficiency.</p> <p>7. Where the only ground of negligence, among others, alleged by plaintiff, a machinist’s helper, and sustained by the evidence, which bore a causal connection with his personal injury, was the careless removal of a block of wood from in front of a drive-wheel about to be placed on a lathe, and not defendant company’s failure to 'supply reasonably safe and suitable appliances for doing the work, a verdict for plaintiff under an instruction that defendant should be held liable if the injury was proximately caused by a want of safe and suitable appliances, was properly set aside and a new trial granted.</p>

M. Clements, a Judge of the First Judicial District, presiding. Action by S. H. Conrow against Franz Huffine and others. Decree for defendants, and plaintiff appeals. After diligent search and study we have been unable to find any specific declaration of this court as to the duty of water in any given instance.

Lee McCulloch, Judge. Action by Mrs. A. C. Vanderpool against Elizabeth A. G-. Vanderpool, as executrix of Samuel L. Vanderpool, deceased. Judgment for plaintiff, and defendant appeals from it and an order denying her a new trial.

Stark, Judge. Peter Harper was informed against for aiding a woman in obtaining transportation from Minnesota to Montana for an immoral purpose. A demurrer having been sustained to the information and defendant discharged, the state appeals. As contended by defendant below, it has even been held that Congress has'plenary power over the subject of interstate commerce and that laws enacted by it are supreme. (McCulloch v. Maryland, 4 Wheat. (XJ.

Miller Smith, Judge. Suit by John Ringling against the Smith River Development Company. Judgment for plaintiff, and defendant appeals. The agreements between plaintiff and defendant effected and constituted liens and mortgages on real property, to wit, on interests in real estate and the district court in and for Lewis and Clark county had no jurisdiction of the action. Exhibit “A” (the Catlin contract) is a bilateral contract.

Original applications for writs of prohibition to the district court of the twelfth judicial district and John W. Tattan, a judge thereof, by John Hackshaw, and by G. C. Ihmsen and others, as members of the’ board of county commissioners of Chouteau county.

<p>Default Judgment—Vacation—Appeal from Order—Record— Insufficiency.</p> <p>1. On appeal from an order setting aside a default judgment, the papers actually used as the basis of the order must he embodied in a •bill of exceptions certified by (the trial judge, copies certified by the clerk or attorneys being insufficient.</p>

TJtter, Judge. Action by Susie Snyder against the town of Chinook. Judgment for plaintiff, from which, and from an order denying a new trial, defendant appeals. A person has a right to assume that the street was in a reasonably safe condition, or, if not, that the town would warn of the danger.

'Appeal from District Cemrt, Bienne County; Frank N. Utter, Judge. Action by James Kirk against ’W. T. Smith. Judgment for plaintiff, and defendant appeals. Before the plaintiff can recover any sum for the care of the 500 sheep claimed to have been found by him, he must prove what care he gave the identical sheep taken into his care.

Utter, Judge. Action by tbe American Livestock & Loan Company against tbe Great Northern Railway Company. From a judgment for plaintiff, defendant appeals.

M. Clements, Judge. William Jones, convicted of murder in the first degree, appeals from the judgment and an order denying his motion for a new trial. Refusal to permit counsel for the defendant to cross-examine the witness Davis, by requiring such witness to indicate upon counsel the manner in which the first shots exchanged between defendant and deceased were fired, was error.

From an order granting the petition of Annie B. Huston to administer upon tbe estate of Eobert G. Huston, deceased, and revoking special letters therefor granted to J. L. Carroll, the latter appeals.

B. Winston, Judge. Action by Ida D. Scott against A. W. Waggoner and others. From a judgment for plaintiff, and an order granting a new trial, defendants appeal. If the 'counterclaim, as pleaded by the defendants, arose out of the transaction set forth in the complaint, as the foundation of the plaintiff’s claim, then the court erred in sustaining plaintiff’s motion for a new trial. The lease was the transaction which was the very foundation stone of plaintiff’s claim.

District Court, Silver Bow County; John B. Mc-Clernan, Judge. Held: “Our conclusion, then, is that the provision of our constitution does not deprive the courts of their power to grant new trials in a libel suit on the ground that the verdict is excessive, or for any other recognized legal ground.” (Cook v. Globe Printing Co., 227 Mo. 471, 127 S. W. 332.) And further, the court, notwithstanding the…

Appeal from District Court, Silver Bow County; J. B. Poindexter, a Judge of the Fifth Judicial District, presiding. ’Action by Matthew T. Canning against Max Pried. Judgment for plaintiff. Appeal by defendant from an order denying a new trial.

M. Clements, Judge of the First Judicial District, presiding. Action by the Manhattan Company, a corporation, against J. F. White. Plaintiff appeals from the judgment and from an order overruling its motion for new trial.

Lynch, Judge. Action by Minnie J. De Celles against James S. Casey and Frank A. Shoemaker. From a judgment in favor of plaintiff and from an order denying a new trial, defendant Casey appeals.

Lee McCulloch, Judge. Action by J. E. Shoudy against P. H. and Julia K. Beeser. From a judgment for plaintiff and an order denying their motion for a new trial, defendants appeal.

B. Poindexter, Judge. Action by John W. Lyon against the United States Fidelity & Guaranty Company. Judgment for plaintiff. Defendant appeals from it and an order denying it a new trial.

Stark, Judge of the Sixth Judicial District, presiding. Petition for the creation of an irrigation district. From an order dismissing tbe petition for insufficiency, petitioners appeal. We are aware that it is settled in this state that the fees of a witness attending at the request of the party and testifying, together with his mileage, may be taxed by the party calling him against the unsuccessful party.

Original application by tbe state, on relation of tbe City of Butte, for writ of prohibition forbidding tbe District Court in and for Silver Bow County, and Hon. Jeremiah J. Lynch, a judge thereof, from further entertaining jurisdiction of proceedings for the assessment of damages to a property owner resulting from the grading of a street.

Original application for writ of mandate against the district court in and for Broadwater County, and Hon. Ben B. Law, Judge presiding.