Volume 51 — Montana Reports

A. Clark, Judge. Michael McDonald and Joseph Bradley were convicted of kidnaping, and appeal from the judgment and from orders denying them new trials.

<p>Administrators — Nonresident Heirs — Revocation of Letters of Administration — Petition— Insufficiency — Discretion — W aiver — Laches—Treaties—Effect.</p> <p>Administrators — Revocation of Letters — Right of Nonresident Heirs.</p> <p>1. Where letters of administration have been granted to any person other than those enumerated in seetion 7447, Revised Codes, anyone of the persons therein named, though a resident of a foreign country, may seek the revocation of such letters and nominate someone to act as administrator.</p> <p>[As to right of person entitled to administer to nominate administrator to exclusion of person next entitled, see notes in Ann. Cas. 1914A, 1014; 22 L. R. A. (n. s.) 1161.]</p> <p>Appeal and Error — Correct Conclusion — Wrong Reason — Affirmance.</p> <p>2. If an order of the district court is warranted by any consideration appearing upon the face of the record, it will be affirmed, though based upon an erroneous reason.</p> <p>Administrators — Revocation of Letters — Insufficiency of Petition.</p> <p>3. Under seetion 7446, Revised Codes, a request for the revocation of letters of administration by one of the persons named in section 7447 must be filed in the district court, and a petition failing to allege the filing of such a request is insufficient.</p> <p>Same — -Revocation of Letters — Discretion.</p> <p>4. A request for the revocation of letters of administration by any person named in section 7447, Revised Codes (other than the surviving husband or wife), is addressed to the sound discretion of the district court, reviewable only in case of a clear abuse thereof.</p> <p>Same — Nomination of Administrator — Waiver.</p> <p>5. The right conferred by section 7447, Revised Codes, to name a person to administer the estate of a decedent, may be waived by refusal or failure to claim the privilege, or by unreasonable delay in claiming it.</p> <p>Same — Laches.</p> <p>6. Where nearly seventeen months after the appointment of an administrator had elapsed before a petition seeking the revocation of his letters and the appointment of the nominee of a nonresident heir was filed, a dismissal of the petition was justified on the ground of unreasonable delay.</p> <p>Treaties — Effect.</p> <p>7. Treaties are, by virtue of Article VI of the United States Constitution, the supreme law of the land, and therefore binding upon state courts.</p> <p>[As to effect of treaties and power to annul by hostile legislation, .see note in 81 Am. Dee. 536.]</p> <p>Administrators — Effect of Treaties.</p> <p>8. Held, under the treaty between the United States and Italy, providing that the respective eonsuls-general, consuls, vice-consuls and consular agents shall enjoy in both countries the rights and privileges granted to the officers of the same grade of the most favored nation, the Italian consular agent for Montana was entitled, in the absence and under the authority of the Italian consul-general, as against the nominee of a nonresident heir, to administer the estate of an Italian subject . dying intestate in Montana.</p>

<p>Public Officers — Official Bonds — Sureties—Liability.</p> <p>1. Where the law defines the duties of a public officer, his sureties are responsible for the faithful performance of sueh duties only, and not for acts not pertaining thereto; hence an action did not lie against the sureties on a county assessor’s bond to recover moneys improperly paid to him as compensation for the collection by him of certain city taxes, a duty imposed by law upon other officers.</p> <p>[As to sureties liable only for official acts, see note in 91 Am. St. Rep. 507. As to liability of surety on bond of public officer for acts wholly outside official duty, see note in Ann. Cas. 1912C, 581.]</p>

\ Miller Smith, Judge. Action by Maggie Martin against tbe Northern Pacific Railway Company. Judgment for tbe plaintiff and defendant appeals. In order to avoid tbe defense of tbe doctrine of the turntable cases, it is necessary to allege that tbe thing which caused the injury was not only a thing peculiarly attractive to children, but also that it was a dangerous machine or other dangerous thing.

<p>Appeal from District Court, Flathead County; J. E. Erickson, Judge.</p> <p>Action by F. W. Keeler against S. L. Green. Judgment for plaintiff and defendant appeals.</p>

Lee McCulloch, Judge. Action by William Irving against the Town of Stevensville, From a judgment for plaintiff and an order denying a new trial defendant appeals.

L. Duncan, Judge. Action by Fritz Koopman and Fred Wissbrod, copartners as Koopman & Wissbrod, against Joseph A. Mansolf and another. From a judgment for plaintiffs, defendants appeal. Appellants’ brief contains no discussion or proposition of law, or citation of authority, pointing out in what essential particular the evidence is entirely lacking or insufficient.

District Court, Missoula County; J. E. Patterson, Judge. Action by tbe R. M. Cobban Realty Company against Edward Donlan and others. Judgment for defendants and plaintiff appeals. It is conceded that it would be possible for the parties to have created the kind of an estate in this timber which respondents assume was created.

<p> Appeal from District Court, Missoula Countyj J. E. Patterson, Judge. </p> <p>Action by 3EL C. B. Colvill against Edwin Fox. Judgment for defendant and plaintiff appeals.</p> <p>Citing State v. Derry, 171 Ind. 18, 131 Am. St. Rep. 237, 85 N. E. 765; CaMfomia Reduction Co. y. Sanitary Reduction Works, 126 Fed. 29, 61 C. C. A. 91; Cownoley. y. Union Sewer Pipe Co., 184 U. S. 540, 46 L. Ed. 679, 22 Sup. Ct. Rep. 431; Toledo W. & W. Ry. Co. y. City of Jacksonville, 67 111. 37, 16 Am. Rep. 611; Beebe y. State, 6 Ind. 501, 63 Am. Dec. 391; Chicago etc. Ry. Co. y. State, Ml Neb. 549, 53 Am. St. Rep. 557, 41 L. R. A. 481, 66 N. W. 624; Eidge y. City of Bessemer, 164 Ala. 599, 26 B. R. A. (n. s.) 394, 51 South. 246; Los Angeles County y. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217, 59 Pac. 202.</p> <p>That the destruction of fruit determined by an inspector to be infected is not the taking of property for a public use without due compensation, contrary to Article III, section 14, of the Constitution of Montana, see Commonwealth y. Alger, 7 Cush. (Mass.) 53; Livingston y. Ellis County, 30 Tex. Cíy. App. 19, 68 S. W. 723; Chambers y. Gilbert, 17 Tex. Cíy. App. 106, 42 S. W. 630.</p> <p>Nor is such a destruction of property a taking thereof without due process of law, (Newark etc, Ry. Co, y, Kunt, 50 N. J. L. 308, 12 Atl. 697; Train v. Boston Disinfecting Go,, 144 Mass. 523, 59 Am. Rep. 113, 11 N. E. 929; Weil v. Schultz, 33 How. Pr. (N. Y.) 7; Leach v. Elwood, 3 111. App. 453; State v. City of Topeka, 36 Kan. 76, 59 Am. Rep. 529,12 Pac. 310; Butt-field v. Stranahan, 192 U. S. 470, 48 L. Ed. 525, 24 Sup. Ct. Rep. 349.) The exercise of the police power is not dependent upon notice or judicial determination previous to a destruction thereunder. (City of Salem v. Eastern B. B. Co., 98 Mass. 431, 96 Am. Dec. 650; Newark, etc: By. Co', v. Sunt, supra; Surocco v. Geary, 3 Cal. 69, 58 Am. Dec. 385.)</p> <p>Acts conferring such power as that exercised by respondent upon boards and executive officers are universally upheld. {Hymes v. Aydelott, 26 Ind. 431; State v. Griffin, 69 N. H. 1, 76 Am. St. Rep. 139, 41 D. R. A. 177, 39 Atl. 260; State v. Noy.es, 30 N. H. 279; Walker v. Towle, 156 Ind. 639, 53 L. R. A. 749, 59 N. E. 20; Blue v. Beach, 155 Ind. 121, 80 Am. St. Rep. 195, 50 L. R. A. 64, 56 N. E. 89.)</p> <p>The mere fact that property when put to one use may be harmless, or even useful, does not prohibit the legislature from declaring some other use which is harmful a nuisance; and when property may thus be used to the injury of the property of others, courts uphold the validity of legislation reasonably intended to prevent such injury. (Fwi’num’s Petition, 51 N. H. 376; Bacon v. Walker, 204 U. S. 311, 51 L. Ed. 499, 27 Sup. Ct. Rep. 289; Capital City Dairy Co. v. Ohio, 183 U. S. 238, 46 L. Ed. 171, 22 Sup. Ct. Rep. 120; McCray v. United States, 195 U. S. 27, 1 Ann. Cas. 561, 49 L. Ed. 78, 24 Sup. Ct. Rep. 769.)</p>

Miller Smith, Judge. Action by Homer G-. Murpby, as assignee, against Anna E. Nett. Judgment for defendant and plaintiff appeals. Defendant requested the bank not to turn over the money to Weisner, and the bank in good faith, relying- upon her implied promise to indemnify and save it harmless from all damage by reason of its compliance with her request, refused to comply with Weisner’s demand.

<p> Appeal from District Court, Sheridan County; Frank N. Titter, Judge. </p> <p>Action by the Duluth Brewing & Malting Company against Barney Allen. From an order discharging an attachment, plaintiff appeals.</p> <p>The “summons is not vitiated by the mere fact that it is entitled the court of the ‘Third District Minnesota’ instead of ‘Fourth District, State of Minnesota,’ for such error is purely, technical, and could not affect the substantial rights of the defendant.” (Hanna v. Bussell, 12 Minn. 80; see, also, Nix v. Gilmer, 5 Okl. 740, 50 Pac. 131; American Oil Cloth Co. v, Slonov, 59 Misc. Rep. 218, 110 N. Y. Supp. 289; Galveston, H. & S. A. By. Co. v. Coker (Tex. Civ..App.), 135 S. W. 179; Crane v. Brannan, 3 Cal. 192.)</p> <p>The defect in the summons was cured by the complaint. (Bradey v. Mueller, 22,S. D. 534, 118 N. W. 1035; Williams v. Williams, 221 111. 541, 77 N. E. 928; First National Bank v. Busk, 64 Or. 35, 44 L. R. A. (n. s.) 138, 127 Pae. 780, 129 Pae. 121.) In the foregoing case, not only was the summons defective in that the name of the county was left blank, but it was also defective in stating the amount sued for, which was distinctly one of the requirements of the Oregon statutes. (See, also, Bohinson v. Peru, Plow etc. Co., 1 Okl. 140, 31 Pae. 988; Galveston, H. & S. A. By. Co. v. Coker (Tex. Civ. App.), 135 S. W. 179; Higley v. Pollock, 21 Nev. 198, 27 Pac. 895, 897j Brown v. Eaton, 37 How. Pr. (N. Y.) 325.^</p> <p>While it is advisable in the issuance of the summons that the statute should be literally complied with, a departure therefrom cannot be held to be prejudicial to the proceeding under it, especially where, as in the case at bar, the defendant has not been prejudiced. The provisions of the statute should be construed with a view to carry into effect its object and to promote justice and not to harass litigants and the court by frivolous objections where the substantial rights of the parties are in no manner affected. (Bewick v. Muir, 83 Cal. 368, 23 Pae. 389; Clark v. Palmer, 90 Cal. 504, 27 Pac. 375.)</p>

Miller Smith, Judge. Action by A. M. Holter Hardware Company against the Western Mortgage & Warranty Title Company and others. Judgment for plaintiff and defendants appeal from it and an order denying their motion for a new trial.

B. Leslie, Judge. W. E. Dodd was convicted of practicing medicine without a license. From the judgment and order denying a new trial he appeals. Legislation which discriminates between persons in allowing different privileges to one not given to another under the same conditions, or subjecting one person to different restrictions than are allowed to another in the same class, is invalid.

J. Lynch, Judge. Action by John M. Evans, Jr., administrator of Gene Bare, against the Oregon Short Line Railroad Company. From a judgment for plaintiff and an order denying it a new trial, defendant appeals. Under sections 6788 and 7190, Revised Codes, the granting of the last extension of time to prepare and serve the bill of exceptions was a nullity, and the court lost jurisdiction of the cause for the purpose of settling a bill of exceptions.

M. Clements, a Judge of the First Judicial District, presiding. Action by Joseph F. Conway, Jr., a minor, by Joseph F. Conway, Sr., his guardian ad litem, against the Monidah Trust, a corporation, and another. From a judgment for plaintiff and an order denying them a new trial, defendants appeal. The witness McCarthy was called as an expert, and defendants were entitled to the widest latitude in his -cross-examination for the purpose of testing his qualifications.

<p>Escheat — Recovery of Property — Statutes—Constitution—Payment of State Funds — Appropriation Necessary — Estoppel— Res Adjudicata.</p> <p>Res Adjudicata — Test of Plea — Estoppel.</p> <p>1. The true test of the plea once adjudicated is identity of issues; hence where in a second proceeding to recover an escheated estate the same relief as that demanded in the former one was sought, but by virtue of a statute enacted since the first judgment was rendered, the conditions had changed and the issues were different, petitioner was not estopped to prosecute the new proceeding.</p> <p>Legislature — Powers—Constitution.</p> <p>2. In so far as the state or United States constitutions offer no restrictions, the state legislature has plenary law-making power.</p> <p>Escheat — Statute—Constitutionality—Retrospective Legislation.</p> <p>3. Held, that Chapter 132, Laws of 1913, providing for the recovery of eseheated property, is not retrospective within the meaning of that term as used in section 13, Article XV of the Constitution.</p> <p>Same — Prerequisites.</p> <p>4. Property cannot be declared escheated unless the owner died intestate and without heirs.</p> <p>[As to what is and proceedings to perfect escheat, see note in 29 Am. Dee. 232.]</p> <p>Same — Interest of State in Property.</p> <p>5. Where, at the time an estate was declared eseheated and ordered distributed to the state, a son of the decedent was living, the order of the court did not devest him of any interest in the property, but the state held the proceeds as an involuntary trustee for the use and benefit of the heir.</p> <p>Rights and Remedies — Power of Legislature.</p> <p>6. Whenever there is a right, even though imperfect, the Constitution does not prohibit the legislature from giving a remedy.</p> <p>Retrospective Legislation.</p> <p>7. While the state is forbidden, under section 13, Article XV, of the Constitution, to impose upon its municipal subdivisions a liability in respect to a transaction or consideration already passed, it may impose such liability upon itself.</p> <p>[As to retrospective statutes, when valid, see notes in 6 Am. Dee. 730; 10 Am. Dec. 131; 111 Am. St. Rep. 455.]</p> <p>Escheat — Payment of State Eunds — Appropriation Prerequisite — Constitution.</p> <p>8. Where a judgment ordered the state auditor to draw his warrant on the treasurer for the payment of money held as eseheated property, although the legislature had not made an appropriation for that purpose, it was invalid as in direct conflict with section 34, Article V, and section 10, Article XII, of the Constitution.</p>

'Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. Action by William Johnson against the Butte Alex Scott Copper Company. From a judgment for plaintiff, defendant appeals. The special findings override the general verdict. Those upon the question of knowledge of plaintiff are absolute and convincing, are within the issues, and fully borne out by the evidence. Such findings should not have been disregarded.

<p>Justices’ Courts — Certiorari—Affidavit—Sufficiency—Attachment — Jurisdiction.</p> <p>Certiorari — Affidavit—Sufficiency.</p> <p>1. While the affidavit necessary to be filed in support of an application for a writ of review must set forth the facts which show that the inferior court has acted without or in excess of jurisdiction, one which, with the records incorporated in it, discloses want of jurisdiction is sufficient notwithstanding the formal conclusion that it did so act.</p> <p>Attachment — Justices’ Courts — Discharge—Showing Necessary.</p> <p>2. Under section 6656, Revised Codes, to justify a justice of the peace in discharging an attachment on the ground that the debt was secured, defendant had the burden of showing that it was secured by a mortgage or lien upon real or personal property or a pledge of personal property, security of any other kind or class being excluded.</p> <p>Same — Discharge—Security—What does not Constitute.</p> <p>3. Where personalty is sold under an agreement that title shall remain in the seller until the purchase price is paid, possession being delivered to the prospective purchaser upon giving his note for the amount thereof, the seller did not have a mortgage, pledge or lien to secure its claim against the purchaser, within the meaning of section 6656 above, so as to destroy its right to a writ of attachment in an action on the note.</p> <p>[As to sale conditional upon the final payment of the purchase price, see notes in 37 Am. Rep. 664; 40 Am. Rep. 21.]</p> <p>Same — Discharge—Want of Jurisdiction — Certiorari.</p> <p>4. Where the aetion in whieh a writ of attachment was issued belonged to the class in whieh it could issue and the regularity of the proceedings to obtain it were not attacked, the justice of the peace issuing it had no jurisdiction to discharge it, and his order doing so was subjeet of correction upon certiorari proceedings.</p> <p>[As to questions reviewable upon certiorari, see note in 40 Am. St. Bep. 291. As to writ of certiorari, when issues and what reviewable upon, see note in 12 Am. Dee. 531.]</p>

C. Burley, Judge. Action by Estella Mennell against H. R. Wells, as sheriff of Custer County. From a judgment for defendant, plaintiff appeals. It is a rule of statutory construction recognized in practically every jurisdiction that exemption statutes will be liberally construed. (18 Cyc. 1380, 1381; Ferguson v. Speith, 13 Mont. 487, 40 Am.

Matthews, Judge. Action by O. C. Newman against John Dunleavy and Anthony Dunleavy, copartners doing business as Dunleavy Bros. From a judgment for defendants, plaintiff appeals.

Oskar Karri was convicted of grand larceny as bailee, and appeals from the judgment of conviction and an order deny-' ing Mm a new trial. The transaction between defendant and Browne & Flannigan was not a bailment, but more in the nature of the loan of money to be used by the borrower, and repaid to the lender in other money equivalent in hind and amount.

<p>■ Appeal from District Court, Missoula County; John E. Patterson, Judge.</p> <p>Suit by Patrick Joyce against George McDonald and others. From a decree for plaintiff, defendants David Morris and C. E. Gilbert appealed.</p>

Ayers, Judge. Action by the Great Northern Railway Company against Orzella D. Benjamin and others. From a judgment for plaintiff and an order denying him a new trial, defendant John O. Gilkerson appeals. The matter of quotient verdict was carefully and thoroughly considered by the supreme court of this state in the case of Gordon v. Trevarthan, 13 Mont. 387, 40 Am. St. Rep. 452, 34 Pac. 185.

C. Hurley, Judge. election contest by Wilbert W Cadle against tbe Town of Baker. From, a judgment of dismissal, plaintiff appeals. It is conceded that contest proceedings will not lie under tbe general law for tbe contest of county seat elections, and that this contest can be sustained only upon tbe ground that tbe initiative measure known as tbe Corrupt Practices Act gives tbe right.

Original application by the State, on the relation of J. B. Poindexter, attorney general, for writ of supervisory control, against the district court of the first judicial district in and for the county of Lewis and Clark, and J. M. Clements, a judge thereof. Order annulled.

Ayers, Judge of the Tenth Judicial District, presiding. Action by. the Inter-State Lumber Company, a corporation, against the Western Mortgage & Warranty Title Company, a corporation, and another. Judgment for plaintiff and defend•ants appealed from it and an order denying a new trial.

Original application for writ of supervisory control by tbe State on the relation of John A. Coleman, against tbe district court of tbe tenth judicial district in and for tbe county of Fergus and Roy B. Ayers, Judge thereof. Motion to quash sustained and proceeding dismissed.

<p>Application by John A. Coleman for writ of habeas corpus.</p>

L. Crum, a Judge of the Thirteenth Judicial District, presiding. Action by D. F. Smith against John P. Barnes and another. Judgment for defendant Barnes; motion for new trial denied, and plaintiff appeals.

<p>At chambers.</p> <p>Original application of C. J. Collins for writ of habeas corpus. Conditional order of release.</p>

Original application by the State, on relation of J. A. Sherman, for a writ of review directed to the District Court of the Fifteenth Judicial District in and for the County of Eosebud, and others.

<p>Chattel Mortgages — Renewal—Single Debt — Several Notes— Statutory Provisions — Subsequent Encumbrancers.</p> <p> Appeal from District Court, Custer County; C. C. Hurley, Judge. </p> <p>Action by the First National Bank of Miles City, a corporation, against W. C. Marshall and the Commercial State Bank of Miles City. From a judgment for defendant bank, plaintiff appeals.</p> <p>As we view the language of sections 5762 and 5763, Revised Codes, it became necessary for the Commercial State Bank, in order to maintain and sustain the validity of its mortgage lien as against the plaintiff, a subsequent mortgagee of Marshall, to file an affidavit of renewal as provided by section 5763, within sixty days after the six months note for $7,670 became due, and upon its failure to do so it lost its mortgage lien so far as the payment of that note was concerned, as against this appellant. We concede that there is a conflict of authorities on the question presented but we submit that giving the language of the statute its ordinary construction and meaning, the position for which the appellant here contends should be sustained, in support of which we cite the following authorities: Main v. Alexander, 9 Ark. 112, 47 Am. Dec. 732; Watkins v. Wassell, 15 Ark. 73; Hannah v. Carrington, 18 Ark. 85; Wright v. Graham, 42 Ark. 140; Ely v. Carnley, 19 N. Y. 496; Steele v. Benham, 84 N. Y. 634; Porter v. Parmley, 52 N. Y. 187; Marsden v. Cornell, 62 N. Y. 215, 219.</p> <p>The general rule of law is that unless the language of the instrument expresses a contrary intention, the failure to pay the first installment of the mortgage constitutes a breach of the condition of the mortgage, and in the event such default in payment is made, it is optional with the mortgagee whether he will take possession then or wait until the maturity of the other installments. (7 Cye. 82; Chapin v. Whitsett, 3 Colo. 315; Wilson v. Rountree, 72 111. 570; McConnell v. Scott, 67 111. 274; Wheeler & Wilson Mfg. Co. v. Howard, 28 Fed. 741; Marseilles Mfg. Co. v. Rockford Plow Co., 26 111. App. 198.) The same general rule is announced in 5 Am. & Eng. Ency. of Law (2d ed.), p. 1002. It is our contention that, under the general rule above, the respondent had the right to exercise its option and wait until the maturity of the whole debt secured by the mortgage before he was required to take possession thereunder or institute an action for its foreclosure.</p> <p>We have carefully examined all of the cases cited by the appellant in his brief, with the exception of the cases reported in 15, 18 and 42 Arkansas Reports, which are not available to us. We do not find a single one of the eases cited by plaintiff which we have examined in which the point under discussion was involved or decided. In four of these cases the rights of attaching creditors and judgment creditors were involved, and in the other case the rights of.a bona fide purchaser was the particular question involved in that case.</p> <p>The appellant bank was not a subsequent encumbrancer within the purview of these statutory provisions, and was not in a position to successfully attack the priority of respondent’s mortgage. (First State Bank v. King & McCants, 37 Okl. 744, 47 L. R. A. (n. s.) 668, 133 Pac. 30; Howard v. First National ■Bank, 44 Kan. 549, 10 L. R. A. 537, 24 Pac. 983; Meech v. Tatchin, 14 N. Y. 71; Casner v. Crawford, 4 Kan. App. 687, 46 Pac. 41; Arlington Mill & Elevator Co. v. Yates, 57 Neb. 286, 77 N. "W. 677; Huber Mfg. Co. v. Sweny, 57 Ohio St. 169, 48 N. E. 879; Walter A. Wood Mowing & Reaping Machine Co. v. Lee, 4 S. D. 495, 57 N. W. 238; Wells, Fargo & Co. v. Alturas Commercial Co., 6 Idaho, 506, 56 Pac. 165; Goodwin v. Bayerle, 18 Misc. Rep. 62, 41 N. Y. Supp. 20; Smiths. Simper, 15 Ohio C. O. 375; Marsden v. Cornell, 62 N. Y. 215; Schnavely v. Bishop, 8 Kan. App. 301, 55 Pac. 667.)</p>

<p> Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge. </p> <p>Action by the City of Butte against Nellie McKay. From an order taxing costs, plaintiff appeals.</p>

J. Lynch, Judge. Action by Hannah A. Blackburn, and another against the State of Montana and another. From an order of the district court fixing the value of an estate for inheritance tax purposes, plaintiffs appeal. From an examination of sections 7724, 7509-7511, and 7546, Revised Codes, it appears that the widow’s right to her family allowance is in no manner dependent upon the provisions of the will, if there be a will.

Miller Smith, Judge. Action by C. H. Fortman against John Leggerini. From a judgment for plaintiff and an order denying a new trial, defendant appeals. Reversed and remanded, with, directions. The facts in evidence bring this suit •within the case of McGowan Com. Go. v. Midland Coal etc. Co., 41 Mont. 211, 108 Pac. 655. We respectfully submit that the evidence presented brings it squarely within the case of Meldrum v. Kenefick, 15 S. D. 370, 89 N. W. 863.

Miller, Judge. Action by the Standard Sewing-Machine Company against B. S. Smith and others. From an adverse judgment and an order denying it a new trial, plaintiff appeals.

M. Clements, Judge. O. F. Guerin, charged with the commission of the infamous crime against nature, interposed a general demurrer, which was sustained. The state appealed. Citing Uonselman v. People, 168 111. 172, 48 N. E. 304; Kelly v. People, 192 111. 119, 85 Am. St. Rep. 323, 61 N. E. 425; Means v. State, 125 Wis. 650,104 N. W. 815; State v. McGruder, 125 Iowa, 741, 101 N. W. 646; Commonwealth v. Dill, 160 Mass. 536, 36 N. E. 472. In Prindle v. State, 31 Tex.

J. Lynch, Judge. Action by Mrs. Frank Murray against the City of Butte. From a judgment for plaintiff and an order denying it a new trial, defendant city appeals.

B. Poindexter, Judge. Action by tbe Mountain Electric Company against the Northern Valley Mining Company. From a judgment in favor of plaintiff and an order denying it a new trial, defendant appeals.

B. Poindexter, Judge. Action by Rickard Ellinghouse against tbe Ajax Livestock Company. From a judgment for defendant, and an order denying him a new trial, plaintiff appeals. What acts of a servant are within the course of his employment must be determined by general and broad principles of law in each particular case. No hard-and-fast rule can be laid down.

H. Ewing, Judge. Action by Annie C. Morebouse and others against Edward T. Bynum and others. Prom an order vacating a default against defendants Lewis D. Matheson and Lee Bayliss, plaintiffs appeal.

Original application by the State on the relation of Jos. J. Carroll, for writ of supervisory control to set aside an order of District Court of the First Judicial District, J. M. Clements, Judge presiding, made on June 16, 1915.

Miller Smith, Judge. Action by William A. Peek against tbe Northern Pacific Bail-way Company, M. M. Fowler, Fred Kennedy and others. From a judgment for plaintiff, the defendants named appeal. Messrs. Gunn, Basch & Hall, for Appellants, submitted a brief, as well as one in reply to that of Bespondent; Mr. Carl Basch argued the cause orally. The plaintiff failed to make a case entitling him to any recovery.

Original application for writ of prohibition by the State, on relation of the Bitter Boot Valley Irrigation Company, against the District Court of the Fourth Judicial District in and for the County of Bavalli and the Judge thereof.

Original application for writ of review by the State, on relation of the Bitter Root Valley Irrigation Company, against the District Court of the Fourth Judieial District in and for the County of Ravalli and the Judge thereof. Orders complained of annulled.

Supervisory control by tbe State, on tbe relation of Con Man-nix, against tbe District Court of the Fourteenth Judicial District in and for tbe county of Broadwater and others.

Patterson, Judge. Mandamus by the state on relation of P. J. McDonald against Andy Getehell, as mayor of the city of Missoula, and others. From a judgment ordering the writ to issue and an order denying them a new trial, defendants appeal.

J. Lynch, Judge. Action by Mary Busb, executrix, against Charles A. Baker. From an -order granting defendant’s motion for new trial, plaintiff appeals. The action for unlawful detainer does not abate by reason of the fact that the tenant surrenders possession of the premises during the pendency thereof.

Original application by tbe State on tbe relation of John N. Tbelen, for writ of supervisory control to annul a judgment of contempt against relator by tbe District Court of tbe Twelfth Judicial District in and for tbe County of Cbouteau, and John .W. Tattan, Judge thereof.

B. Law, Judge. Action by Julius Lehrkind against Ed. McDonnell. Judgment for plaintiff, from which, as well as from an order denying his motion for a new trial, he appeals. Relief will not be afforded on the ground of mistake where defendant’s liability or other trouble, is the result of his want of proper diligence, and usually only in the case of fraud.

M. Clements, Judge. Certiorari by the State of Montana, on tbe relation of Joe Eagye, against J. H. Bawden and others, as the board of county commissioners of Richland county, to review an order calling a local option election. From a judgment quashing the writ, relator appeals.

Matthews, Judge. Suit by Harry Riley against Jacob Blacker and others. From an adverse judgment and an order refusing a new trial, certain defendants appeal. When a complainant seeks the aid of a court of equity, it is incumbent upon him to state in his complaint every fact, clearly and definitely, that is necessary to entitle him to relief, and if he omits essential facts, or states such facts therein as show that he is not entitled to relief, it is fatal to his action.

O’Hern, Judge. Action by M. W. Milligan against the City of Miles City and certain of its officers. From an order denying their motion for dissolution of an injunction pendente lite, defendants appeal.

H. F. Taylor was convicted of obtaining money by false pretenses, and appeals from the judgment and from an order denying his motion for a new trial.

O’Kern, Judge. Paul S. Jones was convicted of violating the White Slave Law, and appeals from the judgment and an order denying his motion for a new trial. While there are exceptions to the general rule that on a prosecution for a particular crime, evidence of offenses other than that for which the defendant is on trial is not admissible, yet the exceptions limit the evidence to those instances where it tends to prove: 1. Motive; 2. Intent; 3.

Miller Smith, Judge. Suit by George W. Hartnett and others against the St. Louis Mining & Milling Company of Montana and others. From an order refusing to appoint a receiver, plaintiffs appeal. Stockholders in a corporation have the right to insist that all stockholders be treated alike.

Ulysses Papp was convicted of an assault in the second degree, his motion for a new trial was overruled, and he appeals from the judgment and an order denying his motion for a new trial.

L. Duncan, Judge. Action by Phoebe Finley against School District No. 1 of Missoula County, Montana. Judgment for plaintiff. From an order denying her a new trial, plaintiff appeals. At the outset it is to be noted that plaintiff was employed by the year — not by the month. This is the position assumed by defendant in its answer; this is what the written contract recites; and this is what the minutes of the board of trustees of defendant shows.

Mc-Clernan, Judge. Action by William Bartb and another against Hnie Pock and others. From a judgment for plaintiffs, defendants Largey and others appeal. Liability on Donated Stock.

C. Hurley, Judge. Action by the Flathead County State Bank against Myrtle M. Ingham, as executrix of the estate of C. B. Ingham, deceased. From a judgment in favor of defendant, and from an order denying it a new trial, plaintiff appealed. Where persons associate themselves together in business under certain requisite conditions, a partnership may be formed whether the parties had in mind the legal consequences or not.

Lynch, Judge. Action by tbe Anaconda Copper Mining Company against the Pilot-Butte Mining Company. From an order granting to plaintiff an injunction pendente lite, the defendant appeals.

Mc-Glernan, Judge. Proceedings by Joseph A. Bush and others to determine their heirship to an estate claimed by the state under an escheat for want of heirs.

McClernan, Judge. Action by A. B. Melzner, as administrator of the estate of Albert Page, deceased, against the Chicago, Milwaukee & St. Paul Railway Company and another. Judgment for plaintiff. Defendants appeal from the judgment and an order denying them a new trial. Under any view of the case, the plaintiff must fail, because of the fatal failure of proof.

Original application for writ of certiorari by the state on the relation of W. D. Smotherman to annul an order of the District Court of Blaine County made in the case of Smotherman v. Ghrisitansen, pending therein.

W. Pierson, Judge. D. H. Harris was convicted of statutory rape, and appeals from the judgment of conviction and an order denying his motion for a new trial.

Original application for writ of probibition by the state on the relation of Thaddeus S. Lane to stay proceedings in the cause of Hall v. Lane, pending in the district court of Silver Bow County.

Appeal, from District Court, Fergus County, Tenth Judicial District; J. B. Leslie, a Judge of the Eighth Judicial District, presiding. Action by Robert E. Hamilton against Robert S. and Mary A. Hamilton. Judgment for plaintiff. Defendants appeal from it and an order denying them a new trial. Plaintiff is not entitled to be allowed to redeem.

In the matter of the application of Floyd Lewis for a writ of habeas corpus. Writ granted, but complainant committed for resentence.

B. Winston, Judge. Action by the First National Bank of Missoula against the Cottonwood Land Company, W. R. Glasscock and the Union Bank & Trust Company, as executor of the estate of James T. Manning, deceased. From a judgment sustaining the demurrer of the executor, plaintiff appeals. An action against a director under section 3850, Revised Codes, as amended, does not abate upon his death.

<p>Cities a/nd Towns — Constitution—Indebtedness—Extension of Limit — Illegality—Appeal and Error.</p> <p>Cities and- Towns — Extension of Indebtedness — Illegality.</p> <p>1. Where a city had authorized an issue of bonds for sower purposes which fully exhausted the three per cent constitutional limit, it was without power to subsequently issue further bonds for the construction of a lighting plant by having recourse to the device of classing the first issue within the extended ten per cent limit — which may be resorted to only for the procurement of a sewerage system or a water supply — a large enough margin being thus created within the three per cent limit to accommodate the later issue.</p> <p>Appeal and Error — Questions reviewable.</p> <p>2. Where a question of the nature of the above is presented by the record and its solution is decisive of the ease, it will be determined on appeal, even though it is not apparent that the district court considered or determined it.</p>

'Appeal from District Court, Fergus County; Boy E. Ayers, Judge. Action by Mary A. Marcellus against Frank B. Wrigbt and others. From a judgment sustaining a demurrer and dismissing the complaint, plaintiff appeals.

E. Erickson, Judge. Action by J. C. Alexander, as administrator of tbe estate of John P. Hall, deceased, against the Great Northern Railway Company. From a judgment in plaintiff’s favor and from an order denying its motion for a new trial, defendant appeals. This is not a case of interstate commerce. The federal Act requires that two facts must exist before a case will come within its provisions.

<p>Master and Servant — Railroads — Negligence — Federal Employers’ Liability Act — Last Clear Chance Doctrine — New Matter — Reply — Contributory Negligence — Witnesses—Impeachment — Verdict — Informality — Waives--Complaint —Amendment.</p> <p>Pleading and Practice — Complaint—Amendment During Trial.</p> <p>1. Where an amendment to the complaint permitted to be made during trial did not change the pleading in any essential particular, appellant could not have been prejudiced by the court’s action, and hence was not in position to complain.</p> <p>Railroads — Negligence—Last 'Clear Chance — Complaint—Sufficiency.</p> <p>2. While the complaint in an aetion against a railway company to recover damages for negligently running over one of its employees, based upon the theory of the last clear chance doctrine, was indefinite, in that it charged discovery of the peril of deceased or the duty to discover it in the alternative, it was sufficient, in the absence of a special demurrer, to state a cause of action.</p> <p>Same — Pleading and Practice — Reply—New Matter.</p> <p>3. Failure of plaintiff to reply to an averment in defendant’s answer to the effeet that deeedent stepped upon the track immediately in front of the locomotive where his presence could not be discovered in time to avoid striking him, held not to have amounted to an admission that his death was the result of his own negligence or of an unavoidable accident, since sueh allegation did not constitute new matter whieh required a reply.</p> <p>Same — Last dear Chance Doctrine — Contributory Negligence.</p> <p>4. Where an action is tried on the last clear chance theory, contributory negligence on the part of the injured person was conceded, and -offered instructions on the subject were properly refused.</p> <p>Same — Witnesses—Impeachment—Prerequisites.</p> <p>5. Before a witness can be impeached by showing that at other times he made statements inconsistent with his testimony, such statements must, under section 8025, Revised Codes, be related to him, with the circumstances of time, place and persons present.</p> <p>Same — Last dear Chance Doetrine — Contributory Negligence — Evidence.</p> <p>6. Inasmuch as contributory negligence of deeedent was not an issue in an action based upon the last clear chance doetrine, evidence that he had been warned in ample time to avoid- injury was immaterial.</p> <p>[As to concurrent negligence of plaintiff as defeating recovery under last clear chanee doetrine, see note in Ann.. Gas. 1912B, 888.]</p> <p>Same — Federal Employers’ Liability Act — Yerdict—Informality-—Waiver.</p> <p>7. Informality of the verdict in an action brought under the Federal Employers’ Liability Aet, in failing to apportion the amount awarded between the surviving widow and child of the decedent, cannot be raised for the first time on appeal; by not objecting to instructions advising the jury that a verdict in favor of plaintiff administrator should be expressed- in a lump sum, the defect was waived.</p> <p>Same — Discovery of Decedent’s Peril- — -Circumstantial Evidence.</p> <p>8. That deeedent was actually discovered by defendant’s employee in charge of the locomotive which ran over and killed decedent in time to avoid the accident, could properly be established by circumstantial evidence.</p>

W. Pierson, Judge. Action by tbe Yellowstone National Bank, a corporation, against John McCullough, and others. Decree for plaintiff, and the defendants John McCullough and M. B. Dutton appeal. The record discloses that McCullough was adjudicated a bankrupt on April 19, 1912. In all cases of estoppel it is necessary for the party relying upon it to show that by reason of the facts constituting it, he has been misled to his injury.