Volume 55 — Montana Reports

Dwyer, Judge. Marco Inich was convicted of murder in the first degree, and appeals from the judgment and order denying new trial.

<p> Appeal from, District Court, Custer ' County; Daniel L. O’Hern, Judge. </p> <p>George Yan Laningham:, alias Jack Logan, was convicted of murder, and from the judgment and an order denying new trial he appeals.</p> <p>In a homicide case where all of the circumstances relied upon to prove guilt are not consistent with each other, with the hypothesis of guilt, and inconsistent with any other rational conclusion; or where under the evidence any one of several others might have committed the crime; or where the testimony on the part of the prosecution is inherently improbable and contradicts prior statements of the same state’s witnesses; or where the motive and opportunity are not clearly shown; or where the defendant is not directly connected with the crime by credible testimony; or where the facts generally are involved in mystery and uncertainty,- — which said conditions exist in this case, —the evidence is insufficient to sustain conviction, and on motion a new trial should be granted. (State v. Suitor, 43 Mont. 31, Ann. Cas. 1912C, 230, 114 Pac. 112; People v. Kennedy, 7 Cal. Unrep. 184, 75 Pac. 845; State v. Pagano, 7 Wash. 549, 35 Pac. 387; Pid v. People, 52 Colo. 1, 119 Pac. 687; Lonergan v. State, 111 Wis. 453, 87 N. W. 455; Casey v. State, 20 Neb. 138, 29 N. W. 264; State v. Clouser, 69 Iowa, 313, 28 N. W. 615; People v. Hare, 57 Mich. 505, 24 N. W. 843; People v. Campagna, 240 Ill. 378, 88 N. E. 797; Schusler v. State, 29 Ind. 395; State v. Dipley, 242 Mo. 461, 147 S. W. 111; Hall v. Commonwealth, 149 Ky. 42, 147 S. W. 764; Satterwhite v. State, 77 Tex. Cr. 130, 177 S. W. 959; Perkins v. State (Miss.), 23 South. 579; Tilley v. Commonwealth, 90 Va. 99, 17 S. E. 895; State v. Cremeans, 62 W. Va. 134, 57 S. E. 405.)</p> <p>Where the evidence on which a motion for a new trial is based has been discovered since the trial; is such that it could not have been obtained by reasonable diligence before; is material to the issues involved, and goes to the merits; is not merely cumulative, impeaching or contradictory; is shown by the best evidence of which the case admits; and would probably produce a different result upon retrial, — all of which said conditions exist in this ease, — a new trial should be granted. (State v. Matkins, 45 Mont. 58, 121 Pac. 881; Cahill v. E. B. & A. L. Stone Co., 167 Cal. 126, 138 Pac. 712; People v. Benham, 30 Misc. Rep. 466, 63 N. Y. Supp. 923; State v. Stowe, 3 Wash. 206, 14 L. R. A. 611, 28 Pac. 337; State v. King, 27 Utah, 6, 73 Pac. 1045; State v. Keleher, 74 Kan. 631, 87 Pac. 738; Cantrell v. State, 12 Okl. Cr. 534, 159 Pac. 1092; State v. De Marias, 27 S. D. 303, Ann. Cas. 1913D, 154, 130 N. W. 782; Bailey v. State, 36 Neb. 808, 55 N. W. 241; Myers v. State, 111 Ark. 399, L. R. A. 1915C, 302, 163 S. W. 1177; Cockrell v. State, 71 Tex. Cr. 543, 48 L. R. A. (n. s.) 1001, 160 S. W. 343; Williams v. State, 99 Miss. 274, 54 South. 857; Carr v. State, 106 Ga. 737, 32 S. E. 844, 11 Am. Crim. Rep. 613; Keenan v. People, 104 Ill. 385, 4 Am. Crim. Rep. 434; Dennis v. State, 103 Ind. 142, 2 N. E. 349, 5 Am. Crim. Rep. 469; State v. Naylor, 5 Boyce (Del.), 99, 90 Atl. 880; Anderson v. State, 43 Conn. 514, 21 Am. Rep. 669; Read v. Commonwealth (Va.), 22 Gratt. 924; Hayne’s New Trial and Appeal, sec. 88.),</p> <p>The evidence in a eriminal case need not exclude the possibility of innocence. (United States v. Green, 220 Fed. 973.) Motive need not be proved in order to sustain a conviction of murder. (People v. Owens, 132 Cal. 469, 64 Pac. 770; People v. Weston, 169 Cal. 393, 146 Pac. 871; Shepherd v. People, 19 N. Y. 537, 544; People v. Bennett, 49 N. Y. 138; People v. Minisci, 12 N. Y. St. Rep. 719, 46 Hun, 682; Thurman v. State, 32 Neb. 224, 49 N. W. 338.)</p> <p>Where the truth of the alleged newly discovered evidence is utterly inconsistent with want of knowledge thereof prior to the trial, its showing was held insufficient. (People v. Cesena, 90 Cal. 381, 27 Pac. 300.) Where a witness was produced at the trial, it was held to have been negligence in the party not to have examined him fully. (Arnold v. Slcaggs, 35 Cal. 684; and see People v. Miller, 33 Cal. 99; Smith v. Smith, 119 Cal. 183, 48 Pac. 730, 51 Pac. 183.) Where the alleged newly discovered evidence was so closely related to what the witness had testified to at the trial that it might have been brought out on cross-examination, it is not available as ground for new trial. (People v. Phelan, 123 Cal. 551, 56 Pae. 424.)</p> <p>In Kenway v. Hoffman, 51 Wash. 105, 98 Pac. 98, it was held that where affiants were witnesses at the trial and the new matter was entirely open for investigation then, diligence was wanting, and the evidence cannot be said to be newly discovered.</p> <p>As a general rule, newly discovered • evidence of contradictory statements made by a witness after the trial is not ground for a new trial. (Leyson v. Davis, 17 Mont. 220, 31 L. R. A. 429, 42 Pac. 775; Husted v. Mead, 58 Conn. 55, 19 Atl. 233; Lasseter v. Simpson, 78 Ga. 61, 3 S'. E. 243; Tobin v. People, 101 111. 121; Commonwealth v. Pandóle, Thach. C. C. (Mass.) 500; Sims v. Sims, 12 Hun (N. Y.), 231; Dexter v. Handy, 13 R. I. 474; Johnson v. A. Lefjler Co., 122 Ga. 670, 50 S. E. 488; Chatfteld v. Lathrop, 6 Pick. (Mass.) 417; Duryee v. Dennison, 5 Johns. (N. V.) 248.) If the affidavits offered in support of the application’ are inherently improbable or inconsistent, or are rebutted by counter-affidavits, a new trial will be refused. (29 Cyc. 905.).</p> <p>Evidence of admissions made by the successful party after the trial or of subsequent declarations inconsistent with his testimony on the trial is not cause for setting aside the verdict. (29 Cyc. 907; State v. Anderson, 14 Mont. 541, 37 Pac. 1; Blake v. Rhode Island Go., 32 R. I. 213, Ann. Cas. 1912D, 852, and note, 78 Atl. 834.)</p>

<p>Etisband and Wife — Alienation of Affections — Bight of Action —Defenses—Punitive Damages — Evidence — Admissibility— Sufficiency.</p> <p>.Husband and Wife — Alienation of Affections — Right of Action.</p> <p>1. A wife eaiinot maintain an aetion for the alienation of the affections of the husband if it appears that the latter voluntarily bestowed them on defendant, she having done nothing wrongful to win them.</p> <p>[As to wife’s right to sue for alienation of husband’s affections, see notes in 28 Am. St. Rep. 217; 46 Am. St. Rep, 472.]</p> <p>Same — Defenses.</p> <p>2. The fact that husband and wife had quarreled frequently does not bar the latter from recovery in an action for damages for alienation of the husband’s affections.</p> <p>Same — Domestic Trouble — Evidence—Admissibility.</p> <p>3. Evidence of domestic trouble between husband and wife may properly be considered by the jury in mitigation of damages sought in an action for the alienation of the husband’s affections.</p> <p>Same — Defenses.</p> <p>4. Estrangement between husband and wife is no defense in an action for alienation of affections, inasmuch as the wife had a right to rely upon the possibility of reconciliation so long as the relationship of husband and wife had not been, severed.</p> <p>On the question of effect of faet that husband or wife of plaintiff in aetion for alienation of affections was the active and aggressive party, see notes in 16 L. R. A. (n. s.) 742; 43 L. R. A. (n. s.j 332,</p> <p>Same — Evidence—Sufficiency.</p> <p>5. Evidence in an action for the alienation of affections held sufficient to sustain the jury’s finding that defendant was the procuring cause of the estrangement between plaintiff and her husband.</p> <p>Same — -Appeal—Conflicting Evidence — Review.</p> <p>6. Whore the evidence is in sharp conflict and that of plaintiff does not appear so inherently improbable that it cannot be true, a verdict for plaintiff will not be disturbed.</p> <p>Same — Punitive Damages — Malice—Jury Question.</p> <p>7. Punitive damages may be awarded in an action for the alienation of a husband’s affections, even though the evidence furnishes no basis for a finding of malice, since malice may be implied from the conduct of defendant in causing the wrong complained of, its existence being a question for the jury.</p>

<p> Appeal from District Court, Meagher County; John A, Matthews, Judge. </p> <p>Action by Sam W. Teagarden against R. M. Calkins, Jr., and F. P. Marrs, as administrator of the estate of A. C. Graves, deceased. From judgment for plaintiff and an order denying him new trial, plaintiff appeals.</p>

<p>Real Estate Brokers — Commission—Failure to Conclude Sale— Abstract of Title — Duty of Seller.</p> <p>Real Estate Brokers — Furnishing Abstract of Title — Duty of Seller.</p> <p>1. Defendant listed with plaintiff, a real estate dealer, a town lot for sale on a commission basis, the former agreeing, among other things, to furnish an abstract of title to date of sale. The abstract thus furnished showed two apparent defects in the title, both easily correctible by reference to the original records. Plaintiff found a buyer and demanded of defendant that she correct the abstract and make good the title. Held, that the demand to make good the title did not exact of defendant an impossibility not required by the contract.</p> <p>Same — Failure to Conclude Sale — Commission.</p> <p>2. A real estate broker with whom property is listed for sale on a commission basis is the seller’s agent for the purpose of effecting— not defeating — a sale; henee where a broker after discovering a supposed (but not real) defect in the abstract of title advised a prospective purchaser not to buy, after refusal of the owner to correct the abstract at her expense, was not entitled to recover his commission.</p> <p>[As to when a broker becomes entitled to a commission, see note in 28 Am. St. Rep. 546.]</p> <p>On the right of real estate broker to commissions where sale fails because of defects in employer’s title, see note in 43 L. R. A. 609.</p>

<p> Appeal from District Court, Yellowstone County; A, C. Spencer, Judge. </p> <p>Action by the Enterprise Sheet Metal Works against Robert E. Schendel. From a judgment for plaintiff and an order denying a new trial, defendant appeals.</p> <p>One who signs, as defendant did, a subscription paper by which he agrees to take stock in a corporation thereafter to be formed, may withdraw his subscription at any time before the corporation is formed. So-called subscriptions to the capital stock of a corporation not yet formed are merely offers to subscribe. (Deschamps v. Loiselle, 50 Mont. 565, 148 Pac. 335, 337; Bryant’s Pond Steam Mill Co.' v. Felt, 87 Me. 234, 47 Am. St. Rep. 323, 33 L. R. A. 593, 32 Atl. 888; Planters’ <& M. Ind. Packet Co. v. Webb, 156 Ala. 551, 16 Ann. Cas. 529, 46 South. 977, 978; Hudson B. E. Go. v. Toiver, 156 Mass. 82, 32 Am. St. Eep. 434, 30 N. E. 465; Midland, City Hotel Go. v. Gibson, 11 G-a. App. 829, 76 S. E. 600.) Notice of withdrawal may be given to another subscriber prominent in the enterprise or who is in charge of subscription paper. (Planters’ & M. Ind. Packet Go. v. Webb, 156 Ala. 551, 16 Ann. Cas. 529, 46 South. 977; Hudson B. E. Co. v. Tower, 161 Mass. 10, 42 Am. St. Eep. 379, 36 N. E. 680.) If the offer be not withdrawn, it will ripen into a binding contract when the corporation comes into being and accepts it. (1 Thompson on Corporations, secs. 521, 543.)</p> <p>It is held that when the subscription paper specifics the amount of the capital stock of the proposed corporation [and this one does], subscription of the full capital is a condition precedent to liability of any of the signers. (Salem Mill Dam Gorp. v. Bopes, 23 Mass. (6 Pick.) 23; Livesey v. Omaha Hotel Go., 5 Neb. 50; Stearns v. Sopris, 4 Colo. App. 191, 35 Pac. 281; Atlantic Cotton Mills v. Abbott, 9 Cush. (Mass.) 423; Santa Cruz B. B. Go. v. Schwartz, 53 Cal. 106; Bockland etc. Co. v. Sewall, 78 Me. 167, 3 Atl. 181.)</p> <p>When the articles of incorporation are required to state the amount of capital stock and the number of shares into which it is divided, and our law so requires, full subscription of the amount of the capital stock is a condition precedent to liability of any subscriber. (Morgan v. Landstreet, 109 Md. 558, 130 Am. St. Eep. 531, 16 Ann. Cas. 1247, 72 Atl. 399; Haskell v. Worthington, 94 Mo. 560, 7 S. W. 481; International F. & E. Go. v. Walker, 88 Mich. 62, 49 N. W. 1086; Exposition etc. Go. v. Canal St. etc. Go., 42 La. Ann. 370, 7 South. 627; Temple v. Lemon, 112 111. 51, 1 N. E. 268.)</p> <p>Waiver must be pleaded, and knowledge, being an essential element thereof, must be averred. (Seebach v. Kuhn, 9 Cal. App. 485, 99 Pac. 723; List & Son Co. v. Chase, 80 Ohio St. 42, 17 Ann. Cas. 61, 88 N. E. 120; Symms-Powers Go. v. Kennedy, 33 S. D. 355, 146 N. W. 570; J. I. Case Thresher M. Co. v. Loomis, 31 N. D. 27, 153 N. W. 479; Poheim v. Meyers, 9 Cal. App. 31, 98 Pac. 65.)</p> <p>Respondent does not concede appellant’s contention that subscription to the full amount of the capital stock is such an implied condition precedent, but even though such contention should prevail, yet this requirement is satisfied by an allegation that the corporation was “duly incorporated.” (McKay v. Elwood, 12 Wash. 579, 41 Pac. 619; Milivaulcee Brick etc. Co. v. Schoknecht, 108 Wis. 457, 84 N. W. 838; Inter-Mountain Puib. Co. v. Jack, 5 Mont. 568, 6 Pac. 20.)</p> <p>The promise to pay is absolute and is not in any sense dependent upon the full amount of the capital stock being subscribed. It must be presumed that the defendant knew the law relative to the organization of corporations as set forth in the statutes of the state, and that the subscription agreement must be construed in the light of the fact that the corporation could be organized and commence business with any portion of the capital stock having been subscribed. Such being the ease, the subscription agreement must be construed as an absolute promise to pay upon the demand of the treasurer after the organization of the company, even though the full amount of the capital stock had not been subscribed, so long as no such condition was expressly attached to the promise to pay. (See West v. Crawford, 80 Cal. 19, 21 Pac. 1123.)</p> <p>Where the statute authorizes the organization of a corporation upon subscription of less than the whole amount of the proposed capital stock, the rule requiring the subscription of the whole amount does not apply. (Schloss v. Montgomery Trade Co., 87 Ala. 411, 6 South. 360; San Bernardino Inv. Co. v. Merrill, 108 Cal. 490, 41 Pac. 487; Auburn Opera House etc. Assn. v. Hill, 3 Cal. Unrep. 839, 32 Pac. 587; Lincoln Shoe Mfg. Co. v. Sheldon, 44 Neb. 279, 62 N. W. 480; Astoria etc. R. Co. v. Hill, 20 Or. 177, 25 Pac. 379; Port Edwards etc. R. Co. v. Arpin, 80 Wis. 214, 49 N. W. 828; Milwaukee Brick etc. Go. v. Schoknecht, 108 Wis. 457, 84 N. W. 838.)</p> <p>“The acceptance of the stock and the payment of the assessment thereon is a waiver of the objection that otherwise might have been urged upon the ground that all the shares had not been taken, if such was the fact.” (Inter-Mountain Pub. Go. v. Jack, supra.)</p>

<p> Appeal from District Court, Madison County; J. B. Poindexter, Judge. </p> <p>Action by Lucy K. Maynard against George S. Watkins and others. From the decree, plaintiff appeals.</p>

<p> Appeal from District Court, Broadwater Cou-nty; John A. Matthews, Judge. </p> <p>Suit by William Walsh against Harry G. Kleinsehmidt and others to quiet title to a mining claim. From the judgment for defendants, and from an order denying a new trial, plaintiff appeals;</p>

Lentz, Judge. Suit by Della T. Wrigbt against Jonn J. Flynn and others, county commissioners and clerk and recorder of Missoula county. Judgment dismissing the complaint, and plaintiff appeals. Cause submitted on briefs of Counsel.

Consolidated appeals from District Court, Silver Bow County, in the Second Judicial District; B. Lee Word, a Judge of the First District, presiding. Proceedings in tbe estate of Rachael E. 'Williams, deceased, wherein Andrew J. Davis, special administrator, presented his final account, to which Sibyl Scott, as administratrix of Rachael E. Williams and Dorothy Alice Williams, a minor, by her guardian, Sibyl Scott, objected.

District Court, Lewis and Clark County; R. Lee Word, Judge. Action by the Equitable ■ Life Assurance Society of the United States, a corporation, and others, against H. L. Hart, State Treasurer, and R. G. Poland, State Auditor. Judgment for defendants, and plaintiffs appeal.

<p> 'Appeal from District Court, Musselshell County; A. C. Spencer, Judge. </p> <p>Action by May Trumper, Superintendent of Public Instruction, and others, constituting the Public School Teachers’ Retirement Salary Fund Board, against School District No. 55 of Musselshell County, Montana, and O. R. MeVay, Clerk. Judgment for plaintiffs, and defendants appeal.</p> <p>Citing: State v. Rogers, 87 Minn. 130, 58 L. R. A. 663, 91 N. W. 430; Hibbard y. State, 65 Ohio St. 574, 58 L. R. A. 654, 64 N. E. 109; 35 Cyc. 1108; People v. Baynes, 198 N. Y. 539, 92 N. E. 1097; 15 Cyc. 578; Billings Sugar Co. v. Fish, 40 Mont. 256, 20 Ann. Cas. 264, 26 L. R. A. (n. s.) 973, .106 Pac. 565; Cunningham v. Northwestern Imp. Co., 44 Mont. 180, 203, 119 Pac. 554, 1 N. C. C. A. 720; Colvill v. Fox, 51 Mont. 72, 79, 149 Pac. 496; State v. Policemen’s Pension Fund, 121 Wis. 44, 98 N. W. 954; 12 C. J. 1020; People v. Coler, 173 N. Y. 103, 65 N. E. 956.</p>

C. - Smith, Judge. Benjamin Mullins was convicted of grand larceny, and from the judgment and an order denying his motion for new trial, he appeals. The evidence,tended to show wrongful conduct of defendant after the theft, rather than participation in the theft.

District Court, Yellowstone County; A. C. Spencer, Judge. Action by the State, on the relation of the City of Billings, against the Billings Gas Company. Judgment for defendant, and the city appeals.

Ayers, Judge. Action by J. M. Eby against the City of Lewistown. Judgment for plaintiff, and defendant appeals. Compensatory damages in a case like this mean the difference in the fair market value of the property before and after the change in grade, unless such difference is more than it would cost to place the property back in the same relative position with respect to the new grade that it occupied with respect to the grade as it existed just prior to the change.

'Appeal from District Court, Cascade Cownty; J. B. Leslie, Judge. Action by James L. Stillwell against A. L. Rankin. From an order granting an injunction pendente lite, defendant appeals. Unless the complaint states a cause of action, the order of the court below' enjoining the transfer or assignment of the notes in question can find no justification.

J. Lynch, Judge. Action by Robert Markinovich against the Northern Pacific Railway Company, a corporation, and J. L. Wester. Held: responsible. (4 Labatt on Master & Servant, par. 1528; Dwir v. New York etc. Steamiship Co., 204 N. T. 341, 40 L. R. A. (n. s.) 918, 97 N. E. 711; Worlds v. Georgia B. Co., 99 Ga. 283, 25 S. E. 646; Hilton v. Fitchburg B. Co., 73 N. II. 116, 68 L. R. A. 428, 59 Atl. 625; Dill v. Marmon, 164 Ind. 507, 69 L. R. A. 163, 73 N. E. 67.)…

Ayers, Judge. Action by tbe First State Bank of Hilger against H. H. Lang. Judgment for plaintiff, and from an order denying bim a new trial, defendant appeals. The contentions of appellant are: First. That the note, made the basis of this action, was regularly discharged. Second. That if the note was not regularly discharged in the first instance,. the action of the cashier was ratified by long acquiescence and by the bringing of suit on the obligation.

Original application for writ of mandamus by the State, on i;he relation of D. E. Brown, against the District Court of the Tenth Judicial District in and for the County of Fergus, and She Judge thereof.

B. Winston, Judge. Action by the Chicago, Milwaukee & St. Paul Railway Company, a corporation, against A. J. Murray, • County Treasurer of Granite County, Montana. Judgment for defendant, and plaintiff appeals.

<p>Taxation — Railroads — Block-signal System — By Whom Taxable.</p> <p>1. Held, that a block-signal system which is located on the roadbed of a transcontinental railroad and attached to the rails in such a manner as to be operated automatically by passing trains is assessable by the state board of equalization and not by any county assessor.</p>

McClernan, Judge. Action by M. J. Cavanaugh against the Corbin Copper Company, a corporation, and others. From a judgment for plaintiff, and an order denying its motion for a new trial, the Copper Company appeals. To reach the minerals beneath the surface a miner must pass from the surface downward; otherwise, he cannot reach or work the mines beneath. This1 necessity gives the owner of the minerals rights reasonably requisite.

Duncan, Judge. Frank C. Hale was accused of a felony, and from tbe judgment and an order denying him a new trial, he appeals. Cause submitted on briefs of Counsel.

Dun-cam, Judge. Action by R. 0. Sherris, an infant, by W. C. Sherris, his guardian ad litem, against the Northern Pacific Railway Company and another. Judgment for defendants and plaintiff appeals.

<p>lAttorneys — Disbarment—Deceiving Court — Owing False Testimony — Defenses.</p> <p>Attorneys — Disbarment—Deceiving Court — False Testimony.</p> <p>1. Held, that an attorney who testified at a. divorce proceeding that the defendant was insane at the time he entered into the marriage contract, although he had himself advised the marriage and know that he was competent, was guilty of an attempt to deceive the trial court and merits disbarment.</p> <p>Same — Deceiving Court — False Testimony — Defenses.</p> <p>2. Where an attorney is shown to have knowingly and willfully testified falsely to aid a litigant in attempting to establish a baseless claim, the fact that the trial court did. not believe but rejected his testimony is no defense in a proceeding for his disbarment under a charge that he attempted to deceive the court.</p> <p>[As to disbarment of attorneys, causes and proceedings therefor, and the power of courts to disbar, see note in 95 Am. Dec. 333; 45 Am. St. Rep. 71.]</p> <p>*Resigned October 25, 1918.</p> <p>tAppointed November 14, 1918, to serve unexpired term of Associate Justice Sydney Sanner.</p>

<p> Appeal from, District Court, Silver Bow County; J. J. Lynch,, Judge. </p> <p>Suit by Colem'an J. Allen and others against' the City of Butte. From a judgment dismissing the complaint, plaintiffs appeal.</p>

<p>Appeal from District Court, Silver Bow County; J. J. Lynch, Judge.</p> <p>Action by Mary E. Boyle and others against the City of Butte. From a judgment for defendant, plaintiffs appeal.</p>

Lee Word, a Judge of the First District, presiding. Action by J. R. Silver against Mary A. Ealdns, as executrix of tbe last will and testament of John Eabins, deceased. From a judgment for .plaintiff and an order denying new trial, defendant appeals.

J. Lynch, Judge. Action by A. C. Baum against the Northern Pacific Railway Company, a corporation, in which Sophia Sathre intervened. From a judgment for plaintiff and from an order denying a new trial, intervener appeals.

Utter, Judge. Action by Ruth Jones against W. F. Shannon and wife. Judgment for plaintiff. Defendants appeal from an order denying them a new trial.

W. Pier-son, Judge. Action by Levi T. Lee against Thomas E. Laughery. Judgment for plaintiff. From an order denying him a new trial, defendant appeals.

C. Spencer, Judge. Action by Mary A. Wilcox against Helen Schissler and another to foreclose mortgage. From a judgment for defendants and denial of a new trial, plaintiff appeals. The evidence shows that the plaintiff took no part whatever in any false or fraudulent representations made by Eugene F. Gateley, and no hint is suggested that the plaintiff had any knowledge that any false representations were being made.

M. Clements, Judge. Action by Richard Cruse and'others, administrators with the will annexed of the estate of Thomas Cruse, deceased, against B. Fischl, Treasurer of Lewis and Clark County. Judgment for defendant and plaintiffs appeal.

P. Stark, Judge of the Sixth District, presiding. Action by A. S. Ainsworth against John F. McKay, as County Clerk and Recorder in and for the County of Sanders, State of Montana, and others. Judgment for plaintiff, and defendants appeal.

A. Thompson, Judge. Suit by J. E. Leary against C. T. Young and others, as County Commissioners, and L. G. Kienck, as Clerk of Lincoln County. Plaintiff appeals from a judgment for defendants and an order denying a new trial. Cause submitted on briefs of Counsel.

Ayers, Judge. Action by the J. I. Case Threshing Machine Company against R. E. Hamilton and another. From an order granting plaintiff’s motion for new trial, defendants appeal.

<p> Appeal from District Court, Fergus County; Boy E. Ayers, Judge. </p> <p>Action by John. Matti against the Chicago, Milwaukee & St. Paul Railway Company. Judgment of nonsuit. Plaintiff appeals from an order denying him a new trial.</p>

A. Thompson, Judge. Action by Emil B. Bjorneby and another, doing business under the firm name and style of Bjorneby Brothers, against the Minneapolis Threshing Machine Company. Judgment for plaintiffs. Defendant appeals.

District Court, Sill County; W. B. Rhoades,’ Judge. Action by W. H. Wheeler against Margaret McIntyre for injunction. From a judgment for plaintiff, defendant appeals. The rule is that equity will not interpose to restrain the mere violation of a municipal ordinance at the instance of an individual.

<p>Attorney and Client — Retention of Funds — Disbarment—Suspension.</p> <p>Attorney and Client — Retention of Funds — Disbarment or Suspension.</p> <p>1. Where an attorney admits his guilt of professional misconduct consisting of failure for some thirty-one months to account to his client for moneys collected in satisfaction of judgments procured in the latter’s favor, the supreme court must, under sections 6418 and 6420 of the Revised Codes, either disbar him permanently or suspend him for a limited period, according to the gravity of the offense.</p> <p>On the question of disbarment or suspension of attorney for withholding client’s money or property, see note in 19 L. R. A. (n. s.) 414.</p> <p>[As to disbarment of attorneys, causes and proceedings therefor, and the power of courts t'o disbar, see notes in 95 Am. Dec. 333; 45 Am. St. Rep. 71.]</p> <p>Same — Suspension.</p> <p>2. Held, in view of extenuating circumstances exceptional in their nature, and the faet that accused had made full payment to his client of the moneys due him with interest, since commencement of disbarment proceedings against him, that suspension for a period of ninety days is sufficient punishment for the offense referred to above.</p>

Law, Judge. Action by Ike De Young against Frank L. Benepe. From a judgment in favor of plaintiff, and an order denying him a new trial, defendant appeals.

L. Crum, Judge. Action by Ida Babcock and others against J. B. Gregg. From a judgment for plaintiff and an order denying them a ne.w trial, plaintiffs appeal. It is settled law that in 1910, and immediately prior to the ditch change, the appellants, in so far as lots 1 and 2, block 4, Ryegate, are concerned, had title only to the portions thereof actually then traversed by their ditch.

<p>Original application for writ of certiorari by the State, on the relation of John J. McHatton, against the District Court of the Second Judicial District in and for the County of Silver Bow, and John V. Dwyer, a Judge thereof, to have annulled an order of said court setting aside a final decree settling account of relator as guardian, etc.</p> <p>Mere clerical errors, errors of form or mistakes in drafting a decree as distinguished from judicial errors may be corrected on petition or motion, but the court having once pronounced a final order or decree and the same having been correctly entered, the court is without any power or authority to set aside, revise or correct the same on its own motion. (Egan v. Egan, 90 Cal. 15, 27 Pac. 22 ; First Nat. Bank v. Husy, 110 Cal. 69, 42 Pac. 476, 478.) When the court entered the decree of settlement of the final account, it had no further jurisdiction over the subject matter. (Howell v. Howell, 104 Cal. 45, 43 Am. St. Rep. 70, 37 Pac. 770; O’Brien v. O’Bñen, 124 Cal. 422, 57 Pac. 225; Brackett v. Banegas (Banegas v. Brackett), 99 Cal. 623, 34 Pae. 344.) The rendition of a judgment is a judicial act. Its entry upon the record is merely ministerial. (Grim v. Kessing, 89 Cal. 478, 23 Am. St. Rep. 491, 26 Pac. 1074; Byrne v. Hoag, 116 Cal. 1, 47 Pac. 775; Brackett v. Banegas (Banegas v. Brackett), 99 Cal. 623, 34 Pac. 344.)</p> <p>Courts have the power at all times to amend judgment so that the' record will contain the actual decision of the court. Where the clerk fails to enter judgment as pronounced, the court has the power to correct the matter and order the proper entry to be made; the court can correct a judicial error in its judgment, but this can only be done through motion for a new trial or by appeal. (Canadian etc. Trust Co. v. Clarita Land, etc. Co., 140 Cal. 672, 74 Pae. 301.) In the case at bar it was not an attempt on the part of the court to correct a clerical misprision. The decree as entered was the decree intended by the court, but upon further consideration the court thought that a different decree should have been entered, and therefore purports on its own motion to vacate the original decree and set the matter for hearing anew. This cannot be done. (In. re Potter’s Estate, 141 Cal. 424, 75 Pac. 850.) A final decree distributing an estate cannot be changed or modified except by appeal. (In re Garraud’s Estate, 36 Cal. 277.) The surrogate had no general revisory power on the ground that it erred as to the law or decided erroneously upon the facts, such revisory power being vested in the appellate court. (Campbell v. Thatcher, 54 Barb. (N. Y.) 382; Harvey’s Heirs v. Wait, 10 Or. 117.) In the ease at bar the action of the court was without due and legal notice or hearing. Until notice is given the court has no jurisdiction in any case to proceed to judgment. (Younger v. Superior Court, 136 Cal. 682, 69 Pac. 485; Mc-Clatchy v. Superior Court, 119 Cal. 413, 39 L. R. A. 691, 51 Pac. 696.)</p> <p>The court cannot upon a change of mind alter or modify the judgment or vary the rights of the parties as fixed by the original decision. (23 Cyc. 868; 15 C. J. 975; Bouldin v. Jennings, 92 Ark. 299, 122 S. W. 639; Karrick v. Wetmore, 210 Mass. 578, 97 N. E. 92; Heinits v. Darmstadt, 140 App. Div. 252, 125 N. Y. Supp. 109.)</p> <p>“The authority of a court to amend its record is to make it speak the truth, but not to make it speak what it did not speak or ought to have spoken.” (Liddell v. Landau, 87 Ark. 438, 112 S. W. 1085; Tucker v. Hawkins, 72 Ark. 21, 77 S. W. 902.)</p>

<p>Supervisory Control — Change of Venue — Insurance—Contracts —Place of Performance — Burden of Proof — Payment—Evidence — C onclusions.</p> <p>Contracts — Payment—.Statute.</p> <p>1. Where a contract is silent as to the place of payment, the law imports into and makes a part of it by implication a provision that the debtor must, in order to perform his obligation, pay or tender payment to the creditor where the latter may then reside or conduct business or be found. (Rev. Codes, secs. 4932, 4933.)</p> <p>Same — Venue—Residence.</p> <p>la. The residence of plaintiff at the time it commenced suit against defendant surety company fixed the rights of the parties in respect . of the place of trial in so far as residence was the controlling factor, its residence at any subsequent time being immaterial.</p> <p>Contracts — Insurance—Place of Payment — Change'of Venue.</p> <p>2. Meld, on supervisory control, under the rule above that where a contract of indemnity did not designate any specific place for payment in ease of loss to the insured, defendant company was required to make payment at the place of business or residence of the insured, and that therefore the county wherein such placa was situate was the place of trial of an action by the insured to recover for loss sustained, and a motion for change of venue to the county of defendant surety company’s residence was properly denied.</p> <p>For authorities discussing the general rule that parol evidence is not admissible to vary, add to or alter a written contract, see note in 17 L. R. A. 270.</p> <p>Same — Change of Venue — Domestic Corporations — Residence.</p> <p>3. When the question arises in an action in -which a domestic corporation is a party, whether or not a change of venue shall be had, the principal place of business of the corporation is its residence.</p> <p>Same — Change of Venue — Burden of Proof.</p> <p>4. The burden of showing that a place other than the residence of plaintiff was agreed upon as the place where payment should be made under a contract of indemnity, was upon defendant company on its motion for a change of venue to the county of its residence.</p> <p>[As to change of venue, see note in 74 Am. Dec. 241.]</p> <p>Change of Venue — Affidavits—Conclusions.</p> <p>5. Statements in affidavits filed by defendant' indemnity company in support of its motion for a change of venue, to the effect that the contract of indemnity sued upon was to be performed by making payment at' its home office, held legal conclusions and without evidentiary value.</p>

Lee Mc-Culloch, Judge. Mandamus against H. T. Wilkinson, Mayor, and others, as commissioners of the City of Missoula, to compel reinstatement of relator as a policeman. From a judgment dismissing the proceeding, relator appeals.

Smith, Judge. D. E. Tate, convicted of the crime of rape, appeals from the judgment and from the order denying his motion for a new trial.

B. Rhoades, Judge. Ova Brower, convicted of burglary in the first degree, appeals from the judgment of conviction and an order denying his motion for a new trial.

Lee Mc-Culloch, Judge. Application by the State on the relation of H. G-. D. Hall for writ of certiorari to annul an order of the board of commissioners of Missoula County, creating a new school district out of District No. 28. From the judgment refusing the writ and dismissing the proceeding, relator appeals. The petition was insufficient to confer jurisdiction on the board of school trustees of School District No. 28.

Law, Judge of the Ninth District, Presiding. Action by Annie Matoole against Jerry B. Sullivan. Judgment for- plaintiff, and defendant appeals from it and an order denying Mm a new trial. There was a variance and failure of proof.

McClernan, a Judge of the Second District, Presiding. Action by Paul P. Roberts against Clarence C. Sinnott, .judgment for plaintiff, and from it and an order denying Ms motion for a new trial, defendant appeals.

<p>Original application for writ of mandate by the State on the relation of Park Smith, against A. J. Duncan, County Clerk and Eecorder of the County of Lewis and Clark.</p>

<p>Special Elections — Primary Election Law — Construction — Nomination of Candidates — Mandamus.</p> <p>Special Elections — Primary Election Law- — Nominations—How Made.</p> <p>1. Held, that since the Primary Election Law (Laws 1913, p. 570), is made applicable only to general elections, fails to provide for the nomination of candidates to be voted for at special elections, and does not repeal prior statutes on the latter subject, sections 521 and 524, Revised Codes, are still in force, and therefor nominations of candidates to be voted for at special elections must be made pursuant to- the provisions of either section 521 or 524.</p> <p>Same — 'County Clerk — Mandamus.</p> <p>2. Held, on application for writ of mandate, that where a large number of qualified electors joined under the provisions of section 524, Revised Codes, in a certificate nominating a candidate for state senator to be voted for at a special election and presented same to the county clerk for filing, it was that officer’s duty to file it, under paragraph 1 above.</p>

J. Lynch, Judge. Action by Barnard Realty Company against tie City of Butte. Prom a decree for defendant and an order denying its motion for new trial, -plaintiff appeals.

■Appeal from District Court, Meagher County; John A. Matthews, Judge. Suit by Emma M. Lowry and others against Frank C. Carrier. From a judgment for plaintiff and an order denying a new trial, tbe defendant appeals.

Ayers, Judge. Action by the Power Mercantile Company against the Moore Mercantile Company and Firmin Tulloek, as Sheriff of Fergus County. From an order refusing to grant a temporary injunction, plaintiff appeals. The question before the court is the priority between the rights of the Power Mercantile Company and of the chattel mortgagee, Moore Mercantile Company.

Lee Word, Judge. Action by Laura T. Read, individually and as executrix of the will of Francis S. Read, deceased, against Lewis and Clark County. From a judgment for plaintiff, defendant appeals.

'Appeal from District Court, Lewis and Clark County; J. M. Clements, Judge. Action by I. S. Moreland against the Monarch Mining & Milling Company, a corporation, wherein the Central State Bank of White Sulphur Springs intervened. From a judgment dismissing the complaint in intervention, and from a subsequent one for plaintiff for the amount claimed in his complaint, intervener appeals.

P. Jones, Judge. Action for divorce by Walter 0. Lee against Mayme Lee. From an order allowing defendant temporary alimony, suit money and counsel fees, plaintiff appeals.

<p> Appeal from District Court, Missoula County; ‘Theo. Lentz, Judge. </p> <p>Injunction suit by Benjamin Bown against Kathryn Somers, otherwise known as Kathryn Caufield, or as Kathryn Bown. From an order denying the injunction plaintiff appeals.</p>

Lentz, Judge. Alex Kuum was convicted of murder in the second degree, and from the judgment and an order denying a new trial he appeals. In the absence of any evidence aside from the shooting, assuming defendant fired the shot, there are only three possible conclusions, — intentional killing, negligent killing, accidental or unintentional killing.

K. Ewing, Judge. Action by Lee Dennis, Treasurer of Cascade County, Montana, against the First National Bank of Great Falls, Montana, for and on behalf of its stockholders. From a judgment for defendant, plaintiff appeals. The provisions of Chapter 31, Laws of 1915, apply to all banks or banking corporations within the state, so that there is no question of discrimination against national banks as such. (Illinois Nat.

Leonard De Kalb, a Judge of the Tenth District, presiding. Action by the Interior Securities Company, a .corporation, against Donald Campbell, as receiver, and others, for specific performance. The Cartersville Irrigated Land Company filed cross-complaint. Judgment dismissing both complaints. Consolidated appeals from judgment and from order overruling motion for new trial.

Mandamus. Original application by the State on the relation of Charles Boulware to compel George P. Porter, State Auditor, to issue a warrant to relator as compensation for services performed by him as a member of the house of representatives.

L. Crum,, Judge. Action by the Citizens’ State Bank of Roundup against Ernest E. Snelling. From a judgment for plaintiff and an order denying him a new trial, defendant appeals. The case should not have been taken from the jury unless it appeared as a matter of law that no verdict could have been rendered for the appellant from any view which could reasonably be drawn from the evidence. {Cain v. Gold Mt. Min. Co., 27 Mont. 529, 71 Pac. 1004; McCabe v. Montana Centred By.

Ayers, Judge. Action by J. L. McKeen and another against John Brooks. From a judgment for defendant, and an order denying them a new trial, plaintiffs appeal. A sale of itself does not operate to terminate a tenancy. It does not matter to the tenant where the fee-simple title is vested. This rule of law has been established since feudal times. During the feudal times a sale terminated the tenancy if the tenant so desired.

B. Leslie, Judge. Action by Byron De Forrest, as trustee in bankruptcy, of George Wilson, bankrupt, against the Crane & Ordway Company. Judgment for plaintiff. There is no evidence that the bankrupt “made a transfer.” While the Bankruptcy Act provides that a payment may be a transfer, it still is required that the bankrupt himself should make the payment. (Remington on Bankruptcy, 2d ed., sec. 1329).

J. Lynch, Judge. The Centennial Brewing Company was convicted of a violation of the prohibition law, in selling malt liquor containing less than two per cent of alcohol, and appeals from the judgment… Held: that rearrangement of clauses or parts of sentences is justifiable under the most common circumstances, and is especially justifiable in order that the statute may not be read contrary to its plain purpose and general public policy.

. A. Thompson, Judge of the. Eleventh District, presiding. Theodore E. Schoenborn was convicted of a felony. From an order granting him a new trial, the state appeals.

J. Lynch, Judge. Action by Murty Shea against the North-Butte Mining Company, a corporation, and Norman Braly. Judgment for defendants dismissing the action. Plaintiff appeals. The method of election provided for in our Workmen’s Compensation Act is wholly unobjectionable, and like methods have been repeatedly affirmed by the courts.

B. Winston, Judge. Action by Agnes Haydon against Marie Normandin, as executrix of the last will and testament of Peter Normandin, deceased. Judgment for plaintiff. Defendant appeals. If a statute creates a new right of action (as does section 6462, Revised Codes), it cannot possibly apply to actions accruing before its enactment. (Keeley v. Great Northern Ry.

Dwyer, Judge. Prosecution by the State against Lutey Bros., a corporation, for a misdemeanor committed in the violation of the Trading Stamp Act. From a judgment of conviction, defendant appeals. If the facts as shown by the agreed statement do not bring the transaction in question within the wording of this statute as written, then the conviction of appellant must be reversed.

From a judgment of conviction, defendant appeals. Cause submitted on briefs filed and oral argument made by Counsel in State v. Lutey Bros., ante, p. 545.

Lamb, Judge. Action by Lutey Bros., a corporation, against Joseph R. Jackson, as county attorney of Silver Bow County, and certain other county officers, for an injunction to restrain defendants from further proceeding in a cause pending in another department of the same court. Injunction granted. Defendants appeal from an order denying a motion to dissolve it.

Original application by the State, on the relation of Jim Prato and Anton Giacomo, for certiorari to the District Court of Silver Bow County, and J. J. Lynch, a judge thereof, to annul certain orders made in a proceeding brought under Chapter 143, Laws of 1917.

TJtter, Judge, Action by Nellie Roy against tbe Estate of Mamie King, deceased, and W. A. Wheeler, administrator. Judgment dismissing the action. Plaintiff appeals. The declaration of a decedent is always admissible in evidence against his pecuniary interest. This is not only the law of the state of Montana, it seems to be the law everywhere. (Sec. 7870, Rev. Codes; Stoddard v. Newháll, 1 Cal. App. Ill, 112, 81 Pac. 666; 9 Am. & Eng.

District Court of Bighorn, County; A. C. Spencer, Judge. Action by J. W. Johnston against the City of Hardin, A. L. Mitchell, Mayor, and others, to restrain defendants from proceeding with certain public improvements. Judgment for plaintiff. Defendants appeal from the judgment and from an arder refusing to dissolve a temporary injunction.

Ayers, Judge. Action by Otis S. Lisb against W. F. Martin and others. Judgment for defendants. From an order granting plaintiff a new trial, they appeal. Cause submitted on briefs of Counsel.

L. Crum, Judge. Action by W. H. Glendenning and J. C. Gregg, copartners doing business under the firm name of Glendenning & Gregg, against D..W. Slayton, L. Lehfeldt, Martin Johnson, A. C. Bayers et al., copartners doing business under the firm name and style of Bank of Ryegate. Judgment for plaintiffs. Defendants appeal from an order denying their motion for a new trial.

E. Ewing, a Judge of the Eighth District, presiding. Action for divorce, by Howard Tobey Weed against Eva Marie Weed. Decree for plaintiff. He appeals from an order denying his motion to strike defendant’s affidavit filed in support of her motion for a modification of the decree.

Original application for writ of review, .by the State on the relation of William Gr. Smith, against the District Court of Fergus County, and Roy E. Ayers, a Judge thereof, to annul an order striking its decree in the divorce proceeding of Wm. G. Smith v. Myrtle D. Smith from the files and continuing the ease for further hearing.

Original application for writ of supervisory control against the District Court of Chouteau County and John W. Tattan, Judge thereof. On return day, February 10, 1919, respondents did not appear; relatrix presented her proof, and the cause was submitted for judgment and decision.

Original applications for writ of mandate to compel respondent, as clerk of the city of Butte, Montana, to place the names of relators in the above-entitled proceedings upon the official ballot and the voting machines to -be used in the municipal election to be held in said city on the seventh day of April, 1919.