Volume 56 — Montana Reports

B. Mo Ciernan, Judge. Actions by Peter T. McDermott and wife against tbe American Bonding Company of Baltimore. From the judgment rendered, both parties appeal. The case of Parker v. Bond, 5 Mont. 1, 1 Pac. 209, which was an action on an injunction bond, is in point here. In the case in which the injunction bond had been given, a dissolution of the temporary injunction was procured before the trial of the case on the merits.

Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. Action by William Shinors against Lanra Joslin. From a judgment for defendant and an order denying plaintiff a new trial, he appeals.

Tattan, Judge. Action by Hobart D. My rick against D. C. Peet. Judgment for defendant, and plaintiff appeals from it and an order denying Mm a new trial. We take the position that the monuments which defendant contends are government monuments are a part of a survey of this township which h$s been and is wholly unofficial, void and of no effect, and that by reason of their inclusion in such a survey the particular monuments in dispute are unofficial.

Leutz, Judge. Action by George L. Steinbrenner against tie Minot Auto Company. From a judgment for plaintiff and from an order denying its motion for new trial,(defendant appeals.

C. Smith, Judge. Action by W. E. Knapp against F. M. Andrus. Judgment for plaintiff, and from an order in proceedings supplemental to execution tbe First National Bank of Dillon and T. J. Mulany appeal. We admit that there was a deposit-of the deed in escrow in the bank. Did that transaction amount to a complete divestiture of title by Andrus? Where was the title to this property while Mrs. Armstrong was in possession up to June 15, 1916 ?

Appeals from District Court, Silver Bow County; J. J. Lynch, Judge. Action by Muriel McIntyre, as administratrix of the estate of Fred Lautwe, deceased, against the Northern Pacific Railway Company, and others. From a judgment for defendants, and an order denying her a new trial, plaintiff appeals.

Lee McCulloch, Judge. Action by Lillie M. Kelley against the John R. Daily Company. From a judgment for plaintiff and an order denying its motion for a new trial, defendant appeals.

Lee Word, Judge. Action by the Union Bank & Trust Company against Anton Himmelbauer and wife. From an order of the district court refusing to discharge an attachment, defendants appeal. The amended complaint fails to state a cause of action.

B. Leslie, Judge. • Frank Moran and Jos. J. Burke were convicted of the eonfi- . dence game, and they appeal. Because of the lack of authorities construing section 8684, Revised Codes, and the lack of statute similar to ours, wre are confined to the law of obtaining money under false pretenses to determine what proof is necessary under the information in this case.

C. Spencer, Judge. Ben Kahn was convicted of seditious utterances, and appeals from the judgment and from an order denying his motion for a new trial. The court was without jurisdiction because of the unconstitutionality of the sedition law of the state.

District Court, Lewis and Clarh County; B. Lee Word, Judge. Action by Emma K. Berry against tbe City of Helena. Judgment for defendant, and plaintiff appeals.

<p>District Courts — Change of Place of Trial — Bias and, Prejudice > —Disgualification of Judge — Waiver—Presumptions.</p> <p>Change of Venue — ’Judges—Bias and Prejudice — Waiver.</p> <p>1. Held, that defendant who,' having filed an affidavit charging bias and prejudice on the part of the district judge before whom the cause was pending, moved for a transfer thereof to an adjoining district) assuring the court that a like objection to the judge of the neighboring eourt did not exist, waived his right to disqualify the latter.</p> <p>Same — ’Presumptions.</p> <p>2. Where a litigant at the time he asked for a transfer of his cause to another district indicated that the judge of that district was free from the bias and prejudice imputed to the former, the condition thus set forth will be presumed to continue, under section 7962, subdivision 32, Revised Codes, until the contrary is shown.</p>

<p>Official Bonds — Justices of the Peace — Complaint—Inferences—■ Suretyship — Estoppel—Presumptions.</p> <p>Action on Official Bond — Justices of the Peace — ’Complaint—Sufficiency.</p> <p>1. The complaint in an action on the .bond, of a justice of the peace to recover cash bail deposited with the justice, alleging that on a certain date the justice was by the board of county commissioners duly appointed and thereafter qualified, and "ever since has been and is now a duly appointed, qualified, and acting justice of the peace” of a named township, was sufficient against the objection that it did not show that the justice was ever in fact such.</p> <p>Same — Sureties—Estoppel.</p> <p>2. The obligors on an official bond are estopped to deny the regularity of his election or appointment, or his title to the office.</p> <p>Same — Complaint—Sufficiency.</p> <p>3. Allegation that a justice’ of the peace “qualified by giving bond * * * with E. and J. as sureties upon said bond, and by taking his oath of office” held sufficient as against the objection that it did not show that J. ever executed or delivered any bond as surety for ther officer.</p> <p>Pleading — Inferences.</p> <p>4. If facts are pleaded from which an ultimate fact must result, it is not necessary to specially plead such fact,</p> <p>Same — Official Duty — Presumptions.</p> <p>5. The presumption obtains that the law was obeyed and official duty regularly performed. (Bev. Code's, see. 7962, subds. 15, 33.)</p> <p>Action on Cfffieial Bond — Complaint—Insufficiency.</p> <p>6. In an action against the surety on the bond of a justice of the peace to recover cash bail deposited with him, the complaint was insufficient for failure to allege that such bail came into defendant’s hands during the time the surety was bound under his contract. (Mr. Chief Justice Brantry dissenting.)</p> <p>Same — Sureties—Extent of Liability.</p> <p>7. The sureties on an official bond are not answerable for anything not within the strict letter of their contract.</p> <p>[As to liability of surety on bond of public officer for acts wholly outside official duty, see note in Ann. Cas. 1912C, 581.]</p>

<p>Ejectment —Mortgage Foreclosure — Decree—Collateral Attach —Pleading and Practice — Pleadings—Amendment—Effect— D eniurrer — Confession—D efault.</p> <p>Judgments — Collateral Attack.</p> <p>1. Where the district court had jurisdiction of the subject matter in a mortgage foreclosure suit, as well as of the defendant by reason of personal service of summons and his general appearance in the action, the decree was not open to collateral attack.</p> <p>Pleading and Practice — Default—Piling Amended Complaint- — Effect.</p> <p>2. The effect of filing an amended complaint is to set aside a default on the original pleading.</p> <p>Same — Demurrer—Piling Amended Complaint1 — Effect.</p> <p>3. By filing an amended complaint after interposition of a demurrer to the original one, plaintiff confesses the demurrer.</p> <p>Same — Amendment—Effect on Original Pleadings — Default.</p> <p>4. Upon service and filing of a second amended complaint, the original and first amended pleadings became functus officio, and, under section 6537, Bevised Codes, defendant was required to answer within twenty days after such filing, for failure to do which default was properly entered.</p>

<p>Disbarment proceedings against John A. Gullickson. Accused indefinitely suspended.</p>

Original application for injunction by David Hilger against W. A. Moore, Treasurer of Lewis and Clark County. This ease calls for a construction of sections 1, 11 and 17, and section 15, as amended in 1916, of Article XII, of the Montana Constitution.

C. Spencer, Judge. Action by George S. Crosby against F. L. Robbins, as executor of the last will of John D. Losekamp, deceased, and another. From a judgment for plaintiff and an order denying them a new trial, defendants appeal. We are unable to find any case where a transaction such as the one here involved is construed as a trust.

C. Spencer, Judge. Action by Nellie B. Asbury, as administratrix of tbe estate of John F. Asbury, deceased, against E. L. Bobbins, as executor of the estate of John D. Losekamp, deceased. From a judgment for plaintiff, and an order denying defendant’s motion for new trial, defendant appeals. .By stipulation of counsel, briefs filed in Crosby v. Bobbins, ante, p. 179, made part of briefs in this cause.

C. Spencer, Judge. Action by Albert S. Hanson against E. L. Robbins, as executor of tbe estate of Jobn D. Losekamp, deceased. From a judgment for plaintiff, and an order denying defendant’s motion for new trial, defendant appeals. By stipulation of counsel, briefs filed in Crosby v. Robbins, ante, p. 179, made part of briefs filed in tbis cause.

<p>Appeal from District Court, Rosebud County; A. C. Spencer, Judge. „</p> <p>Action by O. C. St. John against tbe United States Fidelity & Guaranty Company. From a judgment for plaintiff and an order overruling its motion for new trial, defendant appeals.</p> <p>Where the amount of damages is made an issue by tbe pleadings, the amount of damages recoverable must be submitted to the jury. (Chicago, A. & N. By. Co. v. Whitney, 143 Iowa, 506, 121 N. W. 1043; Lederer v. Morrow, 132 Mo. App. 438, 111 S. W. 902; Salinger v. Western Union Tel. Co., 147 Iowa, 484, 126 N. W. 362, 363; Woodin v. Durfee, 46 Mieh. 424, 9 N. W. 457; Hartv. Charlotte etc. B. B. Co., 33 S. C. 427, 10 L. E. A. 794, 12 S. E. 9; Heller v. Donellan, 45 Misc. Eep. 355, 90 N. T. Supp. 352.)</p> <p>While the rule, supported by many authorities, is to the effect that where evidence of a fact is uncontradicted by positive testimony, the court may assume the fact to be proven and instruct the jury accordingly, all of the authorities agree that although opinion evidence relating to an issue in the case is uncontradieted, the issue must nevertheless be submitted to the jury, as such evidence;, is not controlling and the jury may determine the weight to be attached thereto. (Head v. Hargrave, 105 U. S. 45, 26 L. Ed. 1028; Pritchard v. Hooker etc., 114 Mo. App. 605, 90 S. W. 415; Fowled. Parsons, 160 Iowa, 454, 45 L. E. A. (n. s.) 181, 141 N. W. 1049; 3 Chamberlayne on Evidence, sec. 2552.) This rule has without exception been applied in eases where the question of the reasonableness of an attorney’s fee was involved. {Head v. Hargrave, supra; Zimmer v. Kilborn, 165 Cal. 523, Ann. Cas. 1914D, 368, Í32 Pac. 1026; see, also, Davis v. School District, 84 Neb. 858, 122 N. W. 38; Jetter v. Zeller, 119 App. Div. 179, 104 N. T. Supp. 229; Olson v. Gjertsen, 42 Minn. 407, 44 N. W. 306.) Whether the expenses claimed to have been incurred by'respondent were necessary, judicious and reasonable was for the jury to determine. (8 E. C. L., “Damages, ” see. 59 ; Massena Savings Bank v. Garside, 151 Iowa, 168, 130 N. W. 918, 919; Tyler v. Safford, 31 Kan. 608, 3 Pae. 333; secs. 6679, 6680, Eev. Codes.)i</p> <p>The court, in directing the jury to return a verdict for respondent for $931.92, arrived at this amount by adding items that were testified to only by respondent himself. The fact that respondent was an interested witness in itself prevented his testimony from being necessarily conclusive and therefore required the submission of the ease to the jury. {Sonnenthiel v. Christian Moerling Brewing Go., 172 U. S. 401, 43 L. Ed. 492,19 Sup. Ct. Rep. 233; Missouri K. & T. By. Co.'v. Murphy, 59 Kan. 774, 52 Pac. 863; National Bank of Commerce v. Drewry, 70 Wash. 577,127 Pac. 102; Gosline v. Dryfoos, 45 Wash. 396, 88 Pac. 634; Yickey v. Interborough Rapid Transit Co., 126 App. Div. 781, 111 N. Y. Supp. 205; St. Louis etc. By. Co. v. Thompson (Tex. Civ.), 103 S. W. 684.)</p> <p>The various items for traveling expenses for plaintiff and his counsel were not proper elements of damage. “Every litigant necessarily incurs some expenses beyond the fees of his witnesses and of the officers, of the court. But for these personal expenses and his time he cannot recover compensation, for it would open the door to great abuses, and would often result in oppression. ’ ’ (Smith v. American Bonding Co., 160 N. C. 574, 76 S. E. 481; Craddock v. Goodwin, 54 Tex. 578; State v. Blackman, 51 Mo. 319.)</p> <p>This action sounds in contract and not in tort. In other words, the action is for damages for a breach of contract, and for a definite sum of money; definite in that it is for the actual disbursements and expenses of respondent, and which were incurred by him in relieving himself of the attachment.</p> <p>In the case of Nielsen v. Albert Lea, 87 Minn. 285, 91 N.. W. 1113, an action was instituted upon an injunction bond, and in the course of the opinion the court said: “It is unnecessary to consider this part of the pleading as it is clearly irrelevant and has no bearing upon the real cause pleaded, which is one on contract for the recovery of damages growing out of the issuing of the writ of injunction.” The above 'ease is in point in view of the fact that this court has recognized no distinction between the rules of law applicable to suits on injunction bonds and suits on attachment bonds. (Plymouth Gold Min. Co. v. United States E. & G. Co., 35 Mont. 23, 10 Ann. Cas. 951, 88 Pac. 565.)</p> <p>Had the amount of plaintiff’s damage been submitted to the jury, under the state of the record, but one verdict'could have been returned, and this being the ease, the question became one of law for the court, and not one of fact for the jury. (38 Cyc. 1571; Helena National Bank v. Rocky Mountain Tel. Co., 20 Mont. 379, 63 Am. St. Rep. 628, 51 Pac. 829; Boe v. Lynch, 20 Mont. 80, 49 Pac. 381; Bean v. Missoula Lumber Co., 40 Mont. 31, 104 Pac. 869; Tague v. John Gaplice Go., 28 Mont. 51, 72 Pac. 297.)</p> <p>At the close of all the evidence in the case counsel for appellant moved the court to strike from the record the testimony as to certain of respondent’s expenditures. This motion was equivalent to a demurrer to the evidence as to such expenditures. It is a rule of law that the defendant having demurred to the evidence, and thereafter the plaintiff having moved for a directed verdict, the whole issue becomes a question of law for the court, and each of the parties having waived their right to a jury trial, thereby have submitted the case to the court upon the question of law. (Patty v. Salem Flouring Mills Go., 53 Or. 350, 96 Pae. 1106, 98 Pae. 521, 100 Pac. 298.) This case lays down the rule that under the conditions therein presented, a defendant who moves for a nonsuit and, upon such motion being denied, rests his ease without producing evidence, if he desires to have the case submitted to the jury, he must so request; and in the absence of such a request the whole question is one of law for the court.</p> <p>The respondent claimed and recovered as his actual damages traveling expenses for himself and his counsel; hotel bills, telegraph and telephone charges, attorneys’ fees, and certain items of interest. These are all proper items of recovery. (Thornton-Thomas Mercantile Co. v. Bretherton, 32 Mont. 80, 80 Pac. 10; Plymouth Gold Mining Co. v. United States F. & G. Go., supra; Greek v. McManus, 13 Mont. 152, 32 Pae. 675; Frahm v. Walton, 130 Cal. 396, 62 Pae. 618; Belmont Mining & M. Go. v. Gostigan, 21 Colo. 465, 42 Pac. 650; Williams v. Ballinger, 125 Iowa, 410, 101 N. W. 139; Seattle Crockery Go. v. Haley, 6 Wash. 302, 36 Am. St. Rep. 156, 33 Pac. 650; note to Lindberg y. Howard, 8 Ann. Cas. 712; 22 Cye. 1053-1058.)</p>

<p>Malicious Prosecution — Trial—Theory of Case — Erroneous Instructions.</p> <p>1. In au action for malicious prosecution in wrongfully suing out attachments and procuring a receivership, instructions upon the measure of damages for a wrongful conversion, at variance with the theory upon which the action had been instituted and tried and an issue not presented by the pleadings, was reversible error.</p> <p>[As to right of action for malicious attachment, see note in 93 Am. St. Eep. 463.]</p>

<p>District Court — Judges—Costs—Original Proceedings in Supreme Court — Personal Liability.</p> <p>Judges — Personal Liability — Damages—Erroneous Judicial Act.</p> <p>1. A judicial officer cannot be ield liable for damages in a civil suit for any act of Ms in that capacity though grossly erroneous (or prompted by corrupt or malicious motives), if he had jurisdiction of the subject matter and of the person whose rights were affected by the particular proceeding.</p> <p>Same — When Civilly Liable.</p> <p>2. A judicial officer who aets in a matter not colorably within his jurisdiction is civilly liable for the consequences of his acts.</p> <p>[As to personal liability of judge for acts of his done outside of or in excess of jurisdiction, see note in 137 Am. St. Rep. 53.]</p> <p>Same — Erroneous Decision — Costs—Personal Liability.</p> <p>3. Held, that refusal of a change of venue asked for because of the relationship of the presiding judge to defendant in the action, though clearly erroneous (Rev. Codes, see. 6315, subd. 2.), was not so far without jurisdiction as to render him personally liable for costs incurred by plaintiff in Ms proceeding by writ of supervisory control to compel transfer of the action.</p> <p>Same — Costs—Original Proceedings.</p> <p>4. Relator in an application to the supreme court for writ of supervisory control running to the district court is entitled to Ms costs, upon a judgment in Ms favor.</p> <p>Same — Original Proceedings Against District Court — Costs—Liability.</p> <p>5. Senible: In view of section 7177, Revised Codes, which contemplates that, whenever a public officer sues or is being sued in Ms official capacity, he cannot be held personally responsible for the costs, but that the state or subdivision thereof represented by him shall bear the burden, it would seem that the county represented by respondent judge in a special proceeding before the supreme court (writ of supervisory control), is properly chargeable with the costs upon judgment in favor of relator.</p>

<p>Injunction — Pleading and Practice — Complaint—Inferences— Conclusions — Demurrer.</p> <p>Pleading — Meaning of Written Instruments — Inferences—Demurrer.</p> <p>1. A meaning not fairly deducible from the terms of an instrument set up in a complaint cannot be inferred; and averments that the writing has a different meaning from what its plain terms import are' vulnerable to attack by demurrer.</p> <p>Same — Injunction—Violation of Contract — Complaint—Insufficiency.</p> <p>2. In a suit for an injunction to restrain the violation of a contract for the exclusive right to exhibit motion-piethre films, the complaint held subject to attack by general demurrer in not disclosing that plaintiff was a party to the instrument or entitled to sue as an undisclosed principal.</p> <p>Same — Conclusions—Demurrer.</p> <p>3. An allegation in the complaint for an injunction that the contract, a violation of which was sought to be restrained, was made with A. for the express use and benefit of plaintiff corporation .whose^name did not appear in the contract, was a conclusion which raised no issue of fact.</p> <p>Same — Complaint—Insufficiency—Demurrer—Presumptions.</p> <p>4. Where attaek is made upon the complaint for want. of substantial allegations, courts should indulge the presumption, as against the pleader, that he has stated his cause of aetion as strongly, as he can, and construe it accordingly.</p> <p>Same — Complaint'—When Defective.</p> <p>5. Under Revised Codes, section 6532, requiring a complaint to contain a statement of the facts constituting the cause of aetion in ordinary and eoneise language, a complaint which leaves to surmise and conjecture the course of proof that will be offered in support of it, and obliges the court, as well as the opposing party, to accept the pleader’s bare statement, is defective.</p>

<p>Proceeding for the disbarment of R. O. Lunke, an attorney.</p>

J. H. Slothoaver and others were convicted of grand larceny, and from the judgment of conviction and from an order denying them a new trial, they appeal

<p>Appeal from District Court, Chouteau County; John W. Tattan, Judge.</p> <p>Action by William H. Green against John A. Wiederhold. From an order setting aside a default judgment, plaintiff appeals.</p>

<p>Sedition — Information—Insufficiency.</p> <p>1. Held, that the information alleging that defendant, in vile and vulgar language, voiced his opinion in a saloon, that the Industrial Workers of the World, of which organization he was an officer, would win the case of United States v. Haywood et al., then on trial in Illinois, was insufficient to charge sedition as defined by Chapter 11, Laws Extraordinary Session of 1918.</p> <p>[As to denial of knowledge or information, see note in 133 Am. St. Rep. 106.]</p>

Original proceeding in mandamus by the State, on the relation of Albert Anderson, against the District Court of the Seventh Judicial District in and for the County of Dawson and C. C. Hurley, Judge thereof.

<p> Appeal from District Court, Fergus County; Boy E. Ayers, Judge. </p> <p>Suit by Louis E. Barrick against John R. Porter. From a decree for plaintiff, defendant appeals.</p>

W. Pierson, Judge. Action by Dora Kansier against the city of Billings. Judgment for defendant, and plaintiff appeals from it and an order denying her a new trial. It was error to permit respondent to show by certain witnesses that they had no difficulty themselves in using the sidewalk where the injuries took place, or to state whether they observed anyone else having any difficulty in the use of it, and in what manner they used the sidewalk.

<p>Railroads — Fires on Right of Way — Statutory Liability — Pleadings and Practice — Complaint—Defenses—Origin of Fire — ■ Aciionab le Negligence — Evidence—Trial—Nonsuit—Instructions — General Verdict.</p> <p>Railroads — Fire on Right of Way — Statutory Liability — Complaint—Contents.</p> <p>1. In an action to recover damages, under section 4310, Revised Codes, for the destruction of property by fire communicated to it through combustible material permitted by a railway company to accumulate on its right of way, a prima facie case of negligence is established by showing that defendant permitted the accumulation of such material on its right of way; but' to enable plaintiff to recover, he must show also that the property was destroyed by fire emanating from the operation of the railroad, and that the combustible material was an agency through which the fire was communicated to the property destroyed.</p> <p>On admissibility of evidence of other fires, in case of railroad fires, see note in 32 L. R. A. (n. s.) 1146.</p> <p>On duty and obligation of railroad company to guard against setting out fire's, see note in 9 L. R. A. 750.</p> <p>Negligence — When Actionable.</p> <p>2. Negligence gives rise to a cause of aetion only when it is a proximate cause of injury.</p> <p>Railroads — Fire on Eight of Way — Damages—What not a Defense.</p> <p>3. The fact that defendant railway company may have exercised the highest degree of care in equipping and operating it's locomotives is no defense in an action of the nature of the above (par. 1) if it permitted combustible material to accumulate on its right of way and thus become an active ageney in communicating fire, which escaped from a locomotive used in the operation of its road to adjacent property.</p> <p>Same — Prima Facie Case of Negligence — -How Overeóme.</p> <p>4. A prima facie case of ne'gligenee established by plaintiff in an action brought under section 4310, Eevised Codes, may be overcome by evidence that the railway company exercised reasonable care to keep it's right of way free from combustible material.</p> <p>Same — Nonsuit—Failure to Stand upon Motion — Effect.</p> <p>5. By failing to stand upon its motion for nonsuit, defendant assumed the risk of aiding plaintiff’s case by its own evidence, and where the defect in the latt'er’s case is so cured, error cannot be predicated upon the court’s refusal to grant the motion.</p> <p>Same — Negligence—Provable by Circumstantial Evidence.</p> <p>fi. The presence of combustible material on a railroad’s right of way, and the communication of fire from a locomotive through the agency of such material to adjacent property, may be established by circumstantial evidence.</p> <p>Same — Origin of Fire — Circumstantial Evidence.</p> <p>7. The origin of fire may be established by inferences drawn from slight circumstantial evidence.</p> <p>Trial — Striking Answer of Witness — When Motion Too Late.</p> <p>8. After a question has been answered by a witness, a motion to strike the answer is too late.</p> <p>Bailroads — Fires on Eight of Way — Evidence of Other Fires — -Admissibility.</p> <p>9. Evidence that fires other than the one made the basis of an action against a railroad company under section 4310, Eevised Codes, had been set on its right of way in the same neighborhood, about the same time, by other locomotives operated by it, was competent as fending to prove that it had permitted combustible material to accumulate on the right of way.</p> <p>Trial — Evidence Admissible if Competent upon Any Issue.</p> <p>10. If evidence was competent upon any issue raised by the pleadings; its introduction was proper, though it may have been incompetent as proof of any other fact.</p> <p>Same — Erroneous Instructions Favorable t'o Appellant — Harmless Error.</p> <p>11. Error in giving instructions which were inapplicable to the faets, but more favorable to appellant than to respondent, was harmless.</p> <p>Railroads — Fire on Right of Way — Instruction—Harmless Error.</p> <p>12. The evidence having shown that there' was only one locomotive of defendant upon a certain track upon which the fire started whieh destroyed plaintiff’s building, an instruction which referred to any locomotive of the company as the agency through which the fire was permitted to eseape could not have prejudicially affected the rights of defendant in’the eyes of the jury.</p> <p>Trial — Charge to Jury — To be Yiewed as a Whole.</p> <p>13. The charge to the jury is to be considered as a whole and the several instructions reconciled, if possible.</p> <p>Same — Defenses—Effect of General Yerdict.</p> <p>14. The several defenses interposed by defendant railway company having been properly submitted to the jury, its general verdict was, in effect, a finding against it upon each of them.</p> <p>[As 'to validity of law imposing duty to equip locomotive engines with spark-arresters and making communication of fire prima fade evidence of negligence, see note in 62 Am. St. Rep. 171.]</p>

Lee Word, Judge. Action by George Henry Eate against the American Smelting & Eefining Company. From a judgment for plaintiff and from an order denying its motion for new trial, defendant appeals. While there may be some conflict of authority upon the question of the validity of an assignment, of wages to be earned in the future, we think that the great weight of respectable authority upholds the validity of such assignment.

B. Winston, Judge. , Action by William Daniels against tbe Granite Bi-Metallic Consolidated Mining Company. From a judgment for plaintiff, and from an order denying its motion for new trial, defendant appeals. Citing: Walsh v. Pennsylvania Coal Co., 231 Pa. 518, 80 Atl. 1053; Morrison v. Lee, 13 L. R. A. (n. s.) 650, 113 N. W. 1025; Fox v. Warner-Quinlan Asphalt Co., 38 L. R. A. (n. s.) 395, 97 N. E. 497; Whaley v. Coleman, 113 Mo. App. 594, 89 S. W. 119; Smith v. Thos.

J. Lynch, Judge. Action by Eva Kirk against the Montana Transfer Company and another. From a judgment for plaintiff and from an order denying it a new trial, the defendant company appeals.

Ayers, Judge. Action by Mary M. Smith against Sadie Hoffman. Judgment, for defendant. Plaintiff appeals from the judgment and an order denying her a new trial. The contentions of plaintiff as to the principles of law applicable, are as follows: The deed (Exhibit A) and the memorandum relating to and limiting its terms and effect, must be construed as one instrument.

<p> Appeal from District Court, Chouteau County; John W. Tattan, Judge. </p> <p>Action by the Rogers-Templeton Lumber Company against W. D. Welch, doing business under the firm name and style of W. D. Welch & Co., and others. From a judgment in its favor for only part of the relief demanded, plaintiff appeals.</p>

<p> Appeal from District Court, Richland County; C. C. Hurley, ■Judge. </p> <p>Action by Ebby McKim against C. J. Beiseker. From a judgment for plaintiff, and from an order overruling his motion for a new trial, defendant appeals.</p> <p>The court erred in excluding evidence as to the general reputation of Mrs. McKim for virtue and chastity. (8 Am. & Eng. Ency. of Law, 2d ed., 270, 271; 21 Cyc. 1629; 3 Ency. of Evidence, 796; 1 Greenleaf on Evidence, 16th ed., 46, 47; Jones on Evidence [1896], sec. 151; 10 R. C. L. p. 948, sec. 118.) Passing from text-books to decisions of courts bearing directly on the question under consideration, we find that the courts uniformly hold that this character of evidence is admissible and competent in a case of this kind. (Smith v. Hockenberry, 146 Mich. 7, 117 Am. St. Rep. 615, 10 Ann. Cas. 60, 109 N. W. 23; Ward v. Thompson, 146 Wis. 376,131 N. W. 1006; Stumm v. Hummel, 39 Iowa, 478; Foulks v. Archer, 31 N. J. L. 58; Hardy v. Bach, 173 111. App. 123; Glouser v. Clapper, 59 Ind. 548; Harter v. Grill, 33 Barb. (N. Y.) 283; Harrison v. Price, 22 Ind. 165; Vaughn v. Clarkson (R. I.), 34 Atl. 989; Grose v. Butledge, 81 111. 266; Sanborn v. Neilson, 4 N. H. 501.) The cases cited practically cover all of the cases decided in the United States touching this point.</p> <p>The objection that, testimony is incompetent and immaterial does not raise the question that the evidence is inadmissible under the pleadings. (Merrick v. Hill, 77 Hun, 30, 28 N. Y. Supp. 237; Le Mesnager v. Hamilton, 101 Cal. 532, 40 Am. St. Rep. 81, 35 Pac. 1054; Claflin v. New York Standard Watch Co., 7 Misc. Rep. 668, 28 N. Y. Supp. 42; Rush v. French, 1 Ariz. 99, 25 Pae. 816; Crocker v. Carpenter, 98 Cal. 418, 33 Pac. 271; Howland v. Oakland Consol. St. Ry. Co., 110 Cal. 513, 42 Pac. 983.)</p> <p>Under the common law in actions other than libel and slander, matter in mitigation of damages could not be specifically pleaded, but evidence for that purpose was admissible under the general issue. (8 R. C. L. 618, 619; 5 Ency. of PL & Pr. 618; Harrison v. Price, 22 Ind. 65; Harter v. Crill, supra.) Under the rule as laid down in Forrester v. Butte etc. Min Co., 11 Mont. 544, 55 Pac. 229, 353, it would appear that while the rules of pleading have been largely changed and altered by ^Code provisions, in the absence of a specific provision, the general principles of the common law as to the admission of evidence under the pleading as to justification, excuse and matter of mitigation of damages would prevail. (8 R. C. L. 619; Creighton v. Board of Water- Comomrs., 143 N. C. 171, 10 Ann. Cas. 218, 55 S. E. 511.)</p> <p>However, under the provisions of section 6550, Revised Codes, permissive in character, it is clear that matter going only in' mitigation of damages may be pleaded. Conceding, for the sake of argument, that section 6550 is mandatory, and that mitigating circumstances intended solely to reduce damages should be pleaded, still we contend that the excluded evidence- was competent without being pleaded. In an action for damages for criminal conversation, where the husband is seeking redress by the action itself, there is involved the character of the spouse. It is true that the presumption is that the character is good. Without this presumption as bearing on the damages recoverable, evidence as to character would be competent. Even with that presumption, the plaintiff in the presentation of his case in chief could have introduced evidence showing the good character of his wife, and showing, likewise, that their domestic relations were pleasant. This being true, this evidence on the part of the defendant would be competent under the general denial, and the authorities so hold. (13 R. C. L. 1495, sec. 546; 8 Am. & E'ng. Eney. of Law, 271; 21 Cye. 1632; 5 Eney. of PI. & Pr. 618; Candrian v. Miller, 98 Wis. 164, 73 N. W. 1004; Hardwick v. Hardwick, 130 Iowa, 230, 1Q6 N. W. 639; Bailey v, Bailey, 94 Iowa, 598, 63 N. W. 341.)</p> <p>' Evidence of the reputation of plaintiff’s wife, being in mitigation of damages, is a partial defense which must be pleaded; therefore, not having been pleaded, such evidence was properly excluded. (Rev. Codes, see. 6550; Webb v. Nickerson, 11 Or. 382, 4 Pac. 1126; Fitzsimmons v. City Fire Ins. Co., 18 Wis. 234, 246, 86 Am. Dec. 761; Davenport etc. Coke Co. v. Davenport, 15 Iowa, 6; Ward v. Polk, 70 Ind. 309; Reynolds v. Roudabush, 59 Ind. 483; Peck v. Parchen, 52 Iowa, 46, 2 N. W. 597; McMahan v. Spinning, 51 Ind. 187.)</p> <p>The courts have universally held, even in the absence of any statutory definition that an action for criminal conversation or an action for seduction is an action for injury to the person or for personal injury, and is also an injury to the property rights of the wronged husband. The highest authority, the supreme court of the United States so holds in Tinker v. Col-well, 193 U. S. 473, 48 L. Ed. 754, 24 Sup. Ct. Rep. 505. (See, also, Bennett v. Bennett, 116: N. Y. 584, 6 L. R. A. 553, 23 N. E. 17.) That seduction has been uniformly held to be an action for personal injuries, see Garrison v. Burden, 40 Ala. 513; Hutcherson v. Durden, 113 Ga. 987, 54 L. R. A. 811, 39 S. E. 495; Steinberg v. Lasker, 50 How. Pr. (N. Y.) 432; Hood v. Sudderth, 111 N. C. 215, 16 S. E. 397; May v. Wilson, 164 Mich. 26, Ann. Cas. 1912B, 654, 128 N. W. 1084; Davis v. Boyett, 120 Ga. 649, 102 Am. St. Rep. 118, 1 Ann. Cas. 386, 66 L. R. A. 258, 48 S. E. 185.</p> <p>The purpose of the requirement that partial defenses be pleaded was to give notice to the plaintiff of the character of the evidence which would be adduced against him. (McKyring v. Bull, 16 N. Y. 297, 69 Am. Dec. 696.) In regard to the McKyring Case, it appears that the court made its decision after thorough examination and discussion of the common-law authorities. Indeed that ease is an enlightening monograph on the phases of common-law pleading there involved. No better illustration of the wisdom and justice of requiring the pleading of such matter as the defendant sought to prove in this case can be found than the case at bar, which came to trial at a point far distant from that where the cause of action arose, and where witnesses to the plaintiff’s wife’s reputation could not be found. If such evidence was admissible at all, it was but just that the plaintiff should he advised by the defendant’s pleading that the' latter expected to adduce such evidence so that if the plaintiff desired to bring witnesses to contradict those of defendant he might do s6. The issue of the plaintiff’s wife’s character was entirely outside of any element which the plaintiff could be expected to be prepared to prove in support of the allegations of his complaint and of his cause of action, and therefore if such a defense was permissible, he should have been advised of it. (.Billings v. Albright, 66 App. Div. 239, 73 N. Y. Supp. 22; Strode v. Russell, 148 App. Div. 483,132 N. Y. Supp. 968; Allen v. Besecker, 55 Misc. Rep. 366, 105 N. Y. Supp. 416; see, also, Cole v. Beyland, 67 N. Y. Supp. 1024; Ladwig v. Heyer, 136 Iowa, 196, 113 N. W. 767; Baldwin v. Boulware, 79 Mo. App. 5; Williams Printing Co. v. Saunders, 113 Ya. 156, Ann. Cas. 1913E, 693, 73 S. E. 472; Upchurch v. Robertson, 127 N. C. 127, 37 S. E. 157; Hacker v.Heiney, 111 Wis. 313, 87 N. W. 249; 5 Ency. of PL & Pr. 618; Phillips on Code Pleading, 396, 397.)</p> <p>The evidence was not admissible even if pleaded. (State v. Reinheimcr, 109 Iowa, 624, 80 N. W. 669; State v. Prizer, 49 Iowa, 531, 31 Am. Rep. 155; State v. Shem, 32 Iowa, 88.) In Robinson v. Burton, 5 Harr. (Del.) 335, it was held thftt in a parent’s action for seduction of a daughter it was improper to admit evidence of the general reputation of the seduced daughter, and that the true way of proving unchaste character was by proving her specific acts of unchastity. '</p>

<p>Husband and Wife — Separate Maintenance — Complaint—Sufficiency — “Willful Desertion”■ — Decree—Common Law.</p> <p>Separate Maintenance — Willful Desertion — Complaint—Sufficiency.</p> <p>1. Complaint in an aetion for separate maintenance held sufficient' to state a cause of action under section 3653, Revised Codes, providing that if the husband selects a place or mode of living which the wife deems unreasonable and grossly unfit, it is desertion on the part of t'he husband from the time her reasonable objections are made known to him.</p> <p>Pleading — Complaint—Construction—Sufficiency.</p> <p>2. In determining whether a complaint states a cause of aetion or entitles plaintiff to any relief, matters of form are to be disregarded, as well- as irrelevant and redundant allegations, and if fróm any view plaintiff is entitled to relief the pleading will be sustained.</p> <p>Separate Maintenance — “Willful Desertion” — What Constitutes.</p> <p>3. Where the husband by cruelty or threats of bodily harm drives the wife from the home or fails to provide a suitable place for her to live in, his conduct in either case constitutes willful desertion, furnishing a cause for absolute divorce or separate inaintenanee on that ground.</p> <p>[As to what constitutes willful desertion, see note in 119 Am. St. Rep. 626.] .</p> <p>Same — Aetion, Time for Commencing — Statutes.</p> <p>4. Held, that an action for separate maintenance on.the ground of willful desertion may be commenced at any time after the desertion occurs, and that section 3656, Revised Codes, which requires that willful desertion must' continue for the space of one year before it is a ground for absolute divorce, has no application to an aetion for maintenance. '</p> <p>Same — Decree—Limit of Power of Court — Periodical Allowances.</p> <p>5. Held, that in an action for separate maintenance the district court is without power to make a decree divesting the husband of title to all his property and setting such title over to the wife, its authority in the matter of making prowsion for the support and maintenance of the wife and minor children being limited to a decree for periodical allowances, subject to change or discontinuance, as the circumstances may require.</p> <p>Common Law — Abrogation by Statute.</p> <p>6. In Montana there is no common law in any case where the law is declared by statute.</p> <p>Separate Maintenance — Decree—Limit of Power of Court.</p> <p>7. The decree in an aetion for separate maintenance does not alter the marital status of the parties, cannot effect a division of property, settle or determine the property rights of either, or change the course of inheritance.</p> <p>Same — Decree—How Enforced.</p> <p>8. A judgment in an action for separate maintenance becomes a lien upon the property of the husband and may be enforced by execution as in an action at law.</p> <p>Same — Decree—Provision for Children by Former Marriage.</p> <p>9. In an action for separate maintenance the court cannot, under section 3754, Revised Codes, make provision for the children of plaintiff by a former marriage.</p>

H. Ewing, Judge. Action by the Fifty Associates Company of Great Falls against John C. Quigley. From a judgment for and from an order denying a new trial, defendant appeals. The respondent is not a holder in due course as defined by section 5900 of the Revised Codes, because at the -time that the note was negotiated to the respondent it had notice that the maker of it had not received the consideration agreed upon or any consideration at all.

Original application for mandamus by tbe State of Montana ' on relation of E. Koefod, against the Board of County Commissioners of Hill County, Montana, and Abe Crosson and others, members thereof, J. O. Berglin et al., interveners.

<p>Appeal from District .Court, Cascade Countyj J. B. Leslie, Judge.</p> <p>. Action by tbe First State Bank of Shelby against the Bottineau County' Bank and another. Judgment of dismissal, and ■plaintiff appeals.</p>

Ayers, Judge. Action by Sara A. Crawford against Allen Pierse and another, copartners doing business under the name and style of Pierse & Poetter. From an order setting aside a default, plaintiff appeals.

Original application by the State at the relation of Frank Galles, for writ of mandate to compel the board of county commissioners of Hill County, Montana, to exercise authority conferred upon it by a favorable vote of the electors of said county to incur additional indebtedness under the .provisions of Chapter 8, Laws of the Extraordinary Session of 1919.

C. Spencer, Judges. George T. Riggs was convicted of murder. From a judgment imposing the death penalty and an order denying a new trial, he appeals. A hypothetical question must assume the truth of the evidence of which it is composed and upon which it is based. (8 Ency. of Evidence, 620, 621; 11 R. O. L. 581; Jones v. Chicago etc. By.

<p>Mechanics’ Liens — Foreclosure—Parties—Improvements—Constructive Notice• — -Equity—Sale of Property — Distribution of Proceeds — Estoppel—Waiver—Default Judgment — Clerk of District Court — Dismissal of Actions.</p> <p>Default Judgment — Entry by. Clerk — Ministerial Act.</p> <p>1. The clerk of the district court, in entering judgment by default, as provided in section 6719, subdivision 1, Revised Codes, acts ministerially, not judicially.</p> <p>Same — When Judgment a Nullity.</p> <p>2. Whether the aetion in tvhieh, upon application of plaintiff, the clerk of the district court is required to enter judgment upon default of defendant, is one upon contract for the recovery of money or damages only, the clerk must determine from the allegations of the complaint alone, and if it is not such, the judgment he may enter is a nullity and may be set aside.</p> <p>Same — Mechanic’s Lien — Foreclosure.</p> <p>3. An aetion for the foreclosure of a mechanic’s- lien is not one on contract for the recovery of money or damages only; hence the clerk of the district court ig without jurisdiction to enter a judgment by default in such an action.</p> <p>Void Judgment — Duty of Court to Cancel Entry.</p> <p>4. When a void judgment is called to the attention of the court in which it was entered, it must purge its records of the nullity by canceling the entry.</p> <p>Mechanic’s Lien — Void Default Judgment — Waiver—Estoppel.</p> <p>5. A vdid judgment by default in an aetion to foreclose a mechanic’s lien which made no reference to the lien referred to in the complaint did not constitute a waiver or estoppel against plaintiff of his cause of action.</p> <p>Dismissal of Action — Neglect to Enter Judgment — Rule.</p> <p>6. To warrant dismissal of an aetion after verdict or final dismissal, under section 6715, Revised Codes, if demand for entry of judgment be not made for more than six months, failure of the party entitled to judgment to demand its entry must have been due to negligence on his part.</p> <p>Mechanic’s Lien — Proper and Necessary Parties.</p> <p>7. In an action for the foreclosure of a mechanic’s lien all persons holding interests or liens subsequent to the inception of plaintiff’s rights are proper and necessary parties defendant.</p> <p>[As to necessary or proper parties to aetion to foreclose mechanic’s lien, see note in Ann. Cas. 1918B, 3.]i</p> <p>Dismissal of Action — Negleet to Enter Default Judgment.</p> <p>8. Held, under the above rule (par. 6), that failure of plaintiff ip. an action to foreclose a mechanic’s lien to proceed to valid judgment within six months after default of one of several defendants did not, in view of the circumstances presented^ constitute neglect on his part so as to compel dismissal of the aetion, nor bar further proceedings as to the other defendants.</p> <p>Mechanic’s Lien — Improvements—Constructive Notice.</p> <p>9. One who acquires an interest in property during the time improvements are being placed thereon will be held to have had constructive notice that work had been and was being done thereon.</p> <p>Same — Extent of Lien — Case at Bar.</p> <p>1(>. P. purchased a lot from D. on installments; after repair work on a building situated on the lot had started, B. advanced $220 to P. with which to pay the last installment due to D. D. thereupon gave deed to B., P. being also indebted to B. in an additional amount of $600. B. then conveyed to P., the amount to be paid by the latter, being the aggregate of the sum advanced to D. and the amount of $600 owing by P. Held, in an aetion to foreclose a mechanic’s lien for work done on the building, that it was at least the interest P. had at the time the work was commenced, which was bound by the lien, not a less interest caused by the transactions to whieh the lien claimant was not a party.</p> <p>Same — Equitable -Powers of Court — Sale of Property — Distribution of Proceeds.</p> <p>11. In an action seeking the foreclosure of a mechanic’s lien, the court under its equity powers may deeree whatever is necessary to protect the rights of all persons interested; and where an adjustment of the equities is difficult and a partition may not be effected without injury, a sale of the entire property may be had and the proceeds of sale applied to the benefit of the respective claimants in the order of their priority.</p>

Original application for mandamus, by the State on the relation of the Attorney General, to compel the State Board ,of Equalization to make certain assessments of property of the Montana Power Company, the Great Falls Power Company, and other companies of the same nature, in accordance with the provisions-of section 1, Chapter 48, and section 6, Chapter 49, of the Laws of 1919.

Original application by the State, on the relation of Chas. C. Esgar, Sheriff, for writ of supervisory control against the District Court of the Ninth Judicial District in and for the County of Gallatin, and Ben B. Law, Judge thereof.

Original application for writ of supervisory control' by the State, on the relation of John K. O’Rourke, Sheriff, against the District Court of Second Judicial District in and for the County of Silver Bow, and Edwin M. Lamb, a Judge thereof. Causé submitted on argument in cause numberéd 4,465, State ex rel. Esgar v. District Court et al'., ante, p. 464.

Original application by tbe State on the relation of Liza Williams for writ of supervisory control against the District Court of the Second Judicial District in and for Silver Bow County, and E. M. Lamb, a Judge thereof, praying for an annulment of an order granting motion for change of place of trial.

Dwyer, Judge. Nellie Sullivan was declared elected to the office oi county” auditor of Silver Bow County, and Ludwig Rose, her competitor, instituted a contest. From a judgment dismissing the contest, the contestant appeals. We contend that by judicial construction the word “elector” should be substituted for the words “male person” in section 3101 of the Revised Codes. If that is not done, that section is unconstitutional.

Appeals from, District Court of Lewis and Clarke County; W. H. Doorman, Judge. Alphonse Guie was convicted of the crime of burglary, and appeals from tbe judgment of conviction and from an order refusing him a new trial.

C. Smith, Judge. Harry Peter Wole was convicted of tbe crime of sedition' and appeals from tbe judgment.

Appeals from District Court, Silver Bow County; E. M. Lamb, Judge. Action by George Wesley Davis against the estate of Theah Jane Davis, deceased, and another. From a judgment for defendants and an order denying a new trial, plaintiff appeals.

Appeals from District Court of Yellowstone County; A. C. Spencer, Judge. Action by Jacob C. Koemer against the Northern Pacific Railway Company. The court directed a verdict for defendant, and from the judgment and an order denying his motion for new trial, plaintiff appeals. The defendant pleaded as one of its defenses that it had made settlement with and paid to plaintiff the sum of $1,250 in full settlement of his claim for the injuries complained of in this action.

Appeals from District Court, Fergus Comity; Roy E. Ayers, Judge. Action by France's d’Antremont against Margaret McDonald. Held: “Under our statute words which impute to a woman a want of chastity are slanderous and actionable per se.” (See. 46, Civil Code.) This decision is repeated in the same language in Hitchcock v. .Caruthers, 82 Cal. 523, 23 Pac. 48, and affirmed again in Preston v. Frey, 91 Cal. 107, 27 Pac. 533. In Haub v. Friermufh, 1 Cal.

Duncan/Judge. Proceedings by tbe State of Montana, on tbe relation of A. J. Bishop, against William Keating, as state auditor, to compel the defendant to allow a balance of his claim for damages for loss of tubercular cattle killed by order of the Livestock Sanitary Board. From a judgment directing a peremptory writ to issue, the auditor appeals.

Lee Mc-Culloch,, Judge. Action by the Anaconda Copper Mining Company against Ravalli County and H. L. Hart, its treasurer, to recover taxes paid under protest. From a judgment for defendants, plaintiff appeals. It has been uniformly held that want of statutory notice of an addition to a tax list, or increase in valuation, is waived by appealing for relief or protesting to the board of equalization on learning that the addition or increase in valuation has been made.

Appeals from District Court of Silver Bow County; Eckuin M. Lamb, Judge. Action by Yictoria Hall, as administratrix of tbe estate of Albert Hall, deceased, against the Northern Pacific Railway Company and W. H. Nokes. Yerdiet and judgment for plaintiff for $25,000. Defendants appeal from it and an order denying their motion for a new trial.

Appeals from- District Court of Richland County; C. C. Hurley, Judge. Action by J. C. Johnson against Henry Erickson and others. From a judgment refusing to decree the foreclosure of a materialman’s lien, and from orders overruling plaintiff’s motion for leave to amend the complaint and to set aside the judgment on the ground that it had been prematurely entered, plaintiff appeals.

<p>Mortgages — Foreclos'iire—Promissory Notes — Fraud — Pleading Insufficiency — Offer of Proof — Proper Rejection.</p> <p>Mortgages — -Foreclosure—Promissory. Notes — Fraud—Insufficient Pleading.</p> <p>1. An answer in on action on a promissory note, to the,effect that at the time the note and the mortgage securing it, were' executed and delivered, the mortgagee made certain false represen! ai ions which operated as an inducement to defendants to execute the documents and without which /they would not have been executed, was insufficient to allege fraud.</p> <p>Fraud — Pleading—Neeessary Allegations.</p> <p>2. To charge fraud, the pleading must allege that the guilty party made a false representation, intending that the defrauded one should aot upon it, and that the latter believed and acted upon it to his damage.</p> <p>[As to necessity and sufficiency of allegation of scienter in action, for false representations, see note in 16 Ann. Cas. 646.]</p> <p>Same — Trial Practice — Offer of Proof — Proper Rejection.</p> <p>3. Defendants’ allegation of fraud having been insufficient, an offer of proof in support of it was irrelevant and properly rejected.</p> <p>Trial Practice — Offer of Proof — Rejection—When Proper.</p> <p>4. Where an offer of proof contains relevant and irrelevant matter, the court may exclude the entire offer, it not being its duty to separate the admissible from the inadmissible evidence.</p> <p>Same — Duty of Party Making Offer of Proof.</p> <p>5. The party making an offer of proof must be prepared to show that he ’has the means of proving, or attempt to prove, the facts recited in it, or must make an affirmative showing that the offer is made in good faith.</p> <p>Same — Contents—Conclusions Insufficient.</p> <p>6. An offer of proof must contain the faets necessary to sustain the contention in support of which it is made; a statement of conclusions being insufficient.</p>

Appeals from- District Court of Meagher County; John A. Matthews, Judge. Action by William Dalgarno against H. Holloway. Judgment for plaintiff. Defendant appeals from the judgment and from an order denying him a new trial.

Appeals from District Court of Sanders County; B. Lee McCulloch, Judge. J. D. Bratton and J. G. Montgomery, convicted of the crime of obtaining property by false pretenses, appeal from the judgment of conviction and from an prder overruling their motion for a new trial.

J. Lynch, Judge. Action by. Michael Sullivan against John W. Marshall. From a judgment for plaintiff, defendant appeals. The complaint pleads a novation, and the burden of proof is upon the plaintiff to prove the same by a preponderance of the evidence. (Brown v. Coffee, 17 Cal.

H. Doorman, Judge. Mandamus proceedings by the State on the relation of William Cutts against H. L. Hart, as state treasurer, to compel payment of a warrant issued to relator in payment of mileage and per diem as member of tbe bouse of representatives pursuant to appointment to fill a vacancy caused by death.

Original application by tbe State, on tbe relation of William Zosel, to review an order of the District Court of Powell County, and Geo. B. Winston, tbe judge thereof, adjudging relator guilty of contempt and imposing a fine.

Appeals from the District Cou/rt of Silver Bow County; John B. McClernan, Judge. Action by John Lindsay against John P. Hogan, as administrator of tbe estate of George A. Griggs, deceased. From a judgment for defendant and an order denying him a new trial, plaintiff appeals.

Appeal from District Court of Valley Countyj John Surly, Judge. George Popa was convicted of murder in the second degree and appeals from the judgment of conviction.

Original application for writ of supervisory control, by the State on the relation of Zarella D. Robison, to annul an order of the District Court of Beaverhead County, W. H. Poorman, a Judge of the First Judicial District in and for the County of Lewis and Clark, presiding, vacating an order made by-George B. Winston, of the Third Judicial District, Judge presiding, allowing relatrix temporary alimony and attorneys’ fees. •

Appeals from. District Court of Dawson County in the Seventh Judicial District; A. C. Spencer, a Judge of the Thirteenth District, presiding. R. L. Wyman was convicted of tbe crime of sedition and appeals from the judgment and an order denying his motion for a new trial. The state had no power to pass the law under which this prosecution is instituted.

<p> 'Appeal from District Court of Yellowstone Comity; Geo. W. Pierson, Judge. </p>

<p>Original application for writ of supervisory control directed to Geo. W. Huffaker, as sheriff of Lewis and Clark County, and A J. Lemkie, Justice of the Peace.</p>

<p>Original application for injunction.</p>