Volume 57 — Montana Reports

Appeals from District Court of Fergus County; Boy E. Ayersf Judge. Action by tbe Wright Land & Investment Company against Peter Even and others. Judgment for plaintiff, and defendants appeal from it and an order overruling their motion for a new trial. The law upon the question presented is as stated in Munroe v. Taylor, 191 Mass. 483, 78 N. E. 106.

Lee McCulloch, Judge. Action by Rolla B. Smith against the Northern Pacific Railway Company. Plaintiff had judgment. Defendant appeals.

Law, Judge. Proceedings in eminent domain by the Gallatin Valley Electric Eailway, a corporation, against Matthias Neible and Susan B. Clark. From the judgment in favor of defendants and an order denying plaintiff a new trial, plaintiff appeals.

Tattan, Judge. Action by the Farmers ’ Co-operative Association against C. C. and Eglantine L. Roper from an order setting aside defendants’ default, plaintiff appeals. “Courts in the transaction of business cannot be expected to consult the convenience of litigants and wait upon the private business affairs of counsel.” (Butte Butchering Co. v. Clarke, 19 Mont. 306, 48 Pac. 303; Storer v. Graham, 43 Mont. 344, 116 Pac. 1011; City of Helena v. Brule, 15 Mont. 429, 39 Pac.…

C. Smith, a Judge of the Fifth District, presiding. Action by Minnie Hansen, as executrix of tbe estate of Rasmus Hansen, deceased, against Huie Pock. Judgment for plaintiff. Defendant appeals from it and an order denying a new trial.

J. Lynch, Judge. Action by Joseph Jonosky, as administrator of the estate of Chester Jonosky, deceased, against the Northern Pacific Eailway Company. Judgment fur plaintiff. Held: in accordance with the rule in the Mason Case, that this question was properly for the jury, and in some of these cases the children injured or killed were much older than Chester Jonosky. (Northern Pacific R. Co. v. Chervenak, 203 Fed. 884, 122 C. C. A. 178; Texas & N. O. R. Co. v. McLeod, 62 Tex.

Appeal from District Court of Granite County; Geo. B. Winston, Judge. Action by Charles Brange against D. T. Bowen. Judgment for plaintiff. Defendant appeals from it and an order denying him a new trial.

<p> Appeal from District Court of Silver Bow County; J. J. Lynch, Judge. </p> <p>Action by Steven Pearce against the Metropolitan Life Insurance Company. Judgment for plaintiff. Defendant appeals.</p>

J. lynch, Judge. Action by E. N. Harwood against ■ Sibyl Scott, as administratrix of the estate of Rachel E. Williams, deceased. Verdict for plaintiff, who appeals from that part of the judgment which dismisses the first of his three causes of action. Must a claim against an estate, presented to the executor or administrator for allowance, state all material facts whereby the obligation embraced therein was created and exists?

Lee Word, Judge. Action by tbe Helena Light & Railway Company against the Northern Pacific Railway Company. Judgment for defendant. Plaintiff appeals. The promises in the contract in controversy are mutual and dependent.

Law, Judge. Action by William W. Wylie and another against the Wylie Permanent Camping Company. Judgment for plaintiffs. Defendants appeal from it and an order overruling their motion for new trial.

Dwyer, Judge. Proceeding under the Search and Seizure Act, Chapter 143, Laws of 1917, instituted by the state against John D. Kelly, et al., and certain intoxicating liquors, From the judgment and an… Held: as being insufficient to sustain a conviction for illegal liquor selling. (Moore v. State, 14 Okl. Cr. 292, 170 Pac. 519; Buchanan v. State, 4 Okl. Cr. 645, 36 L. R. A. (n. s.) 83, 84 and note, 112 Pac. 32; Reed v. State, 3 Okl.

Dwyer, Judge. Proceeding by the State against Andrew T. Malarky and certain intoxicating liquors, under the Enforcement Act (Chap. 143, Laws 1917). Judgment for defendant. The state appeals. All the law requires is that a sufficient description be given in a search-warrant, so' that the premises desired to be searched may be identified and located.

<p>Intoxicating Liquors — Enforcement Act — Issues—Trial—Prima Fade Case — Burden of Proof — Evidence—Sufficiency.</p> <p>Intoxicating Liquors — Enforcement Act — Issues—Trial.</p> <p>1. The question primarily involved in a proceeding under the Prohibitory Enforcement Act, -Ch-ap. 143, Laws 1917, is whether or not the liquors seized- as contraband were kept or possessed by any person with the intention of violating the prohibition laws of the state, the question of their ownership being merely incidental.</p> <p>Same — Searches and Seizures — Prima Facie Case — Burden of Proof.</p> <p>2. In proceedings of the nature of the above, the affidavit upon which the search-warrant is issued and the possession of the liquors at the time of their seizure are grima facie evidence of their contraband character, the burden then resting upon the claimant to show his property right and interest therein and that they were not used, kept or possessed with the intention of violating the prohibition laws.</p> <p>Trial — Prima Facie Case — Contradictory Testimony — Effect.</p> <p>3. Where a prima facie ease has been made, contradictory testimony does not necessarily overcome it, but may amount to a mere conflict in the evidence, the ultimate facts to be determined by court or jury.</p> <p>Intoxicating liquors — Destruction—Evidence—Sufficiency.</p> <p>4. The purchase of liquor costing $980 by one living in a single room at a hotel, the liquor being in pint bottles and stored in a closet packed in gunny-sacks, filling the closet almost to the ceiling, with scarcely room for wearing apparel, with other facts and circumstances, held sufficient to justify the court in disregarding the claimant’s testimony and ordering the liquor destroyed.</p>

S. Doorman, Judge. Proceeding by the State, on the relation of Sam Goodman, against Charles T. Stewart, Secretary of State. Writ of prohibition issued, and defendant appeals. This proceeding was instituted for the sole purpose of having it determined whether the declaration contained in section 13 ■of Chapter 28, Laws of 1919, Extra.

P. Jones, Judge. Action by William D. Cornell against the Great Northern Bailway Company and another. From a judgment for plaintiff and a denial of a new trial, defendants appeal. The Excessiveness of the Award: The plaintiff was sixty-seven years of age. This is a case, therefore, where practically the injured man’s working days were over. It is a case almost without parallel in injury cases where the age of the plaintiff was so great.

C. Smith, Judge. Suit by George Bosanatz against Mike Ostronich. Judgment for defendant and plaintiff appeals. Held: that persons in the position that the defendant placed himself in, by his own mouth at the trial of this case, hold the legal title of the property in trust for the benefit of the party defrauded, for the benefit of the person who would have had title thereto had the agreement been carried out. (Setiembre v. Putnam, 30.

Election Contest by Emil J. Gervais against P. M. Rolfe. Prom judgment for contestee, and an order denying contestant a new trial, he appeals. Contestee appeals from the judgment so far as it denies his right to recover his costs. The court made an error in failing to find for whom the seven illegal voters other than Martin Grinolds voted and in applying the apportionment rule to Coburg precinct as to said seven votes.

Appeal from District Court, Flathead County; T. A. Thompson, Judge. Submission of controversy under agreed statement of facts by F. F. Modesitt against Flathead County. Judgment for plaintiff and defendant appeals.

<p>Appeal and Error — Evidence not Part of Bill of Exceptions— Sow Made Part of Record on Appeal.</p> <p>1. Where a transcript of the stenographer’s notes of the evidence, not made a part of a bill of exceptions, is sought to be made available on appeal under the provisions of Chapter 149, Laws of 1915, it must be certified as correct by the trial court or agreed by counsel to be so; otherwise it cannot be considered by the supreme court for any purpose.</p>

Action by the Lehfeldt Company against J. R. Justice. Judgment for defendant and plaintiff appeals. When the court makes an order requiring a pleading of a specified character to be filed, and a pleading is filed which does not conform to the order, such pleading may be stricken from the files. (O’Conner v. Chicago etc. By. Co., 75 Iowa, 617, 34 N. W. 795; Craig v. James, 80 App.

B. Rhoades, Judge. Action by James L. Sprinkle against Moses Anderson. From judgment of nonsuit, plaintiff appeals. This court has in a number of instances construed the provisions of section 7269, Revised Codes, but the case of Spellman v. Rhode, 33 Mont. 21, 81 Pac. 395, is the only ease wherein a question was discussed applicable to the matters under consideration in the case at bar.

<p>Appeal from District Court, Blaine County; W. B. Rhoades, Judge.</p> <p>Action by the Moore Bros. Sheep Company against Julius Lehfeldt. Judgment for plaintiff and defendant appeals.</p>

Duncan, Judge. Pete Dumphy and Pete Anderson were convicted of permitting a gambling game, and from the judgment of conviction and from an order denying them new trial, they appeal. Playing for drinks or cigars, etc., is gambling. (20 Cyc. 889; 12 R. C. L. 715.) Playing at cards with an agreement that the losing party shall pay for the drinks, constitutes gambling. (State v. Leicht, 17 Iowa, 28; McDaniel v. Commonwealth, 69 Ky. (6 Bush) 326; State v. Wade, 43 Ark. 77, 51 Am.

Tattan, Judge. Action by William R. Hensen against Lawrence Merton. Judgment for plaintiff and defendant appeals. On the entire record this case should be reversed and judgment given in favor of defendant, for the reason that the evidence does not show that plaintiff is entitled to any relief.

<p>Slander — Defenses—Truth of Statement — Insurance—“Rebating ’ ’ — Misdemeanor.</p> <p>Insurance — '“Rebating” a Misdemeanor.</p> <p>1. A fire insurance solicitor who, pursuant to an agreement with an agent of the owner of a business block, paid over to the agent two-thirds of the commission earned by him in writing the insurance upon such block, was guilty of “rebating,” an act made a misdemeanor by section 4028, Revised Codes.</p> <p>Slander — Truth of Statement a Defense.</p> <p>2. The truth of the statement by defendant that plaintiff, while acting as a fire insurance agent, was guilty of rebating, having been established, it constituted a defense to an action for slander, and the court erred in refusing to direct a verdict in favor of defendant.</p> <p>[On the question of applicability of statute against rebates and discrimination to allowance by agent to insured of part of former’s commissions, see note in 23 L. R, A, (n. s.) 722.]</p> <p>[On truth as a defense to action for libel or slander, see notes in 21 Xi. R. A. 502; 31 L. R. A. (n. s.) 132; 50 L. R, A. (n. s.) 1040.]</p>

Lee McCulloch, Judge. Action by J. A. Breidenbach and another, as copartners doing business under the firm name of Breidenbach Brothers, against the Upper Valley Orchards Company. From judgment for plaintiffs and order denying new trial, the defendant appeals. The defendant Upper Valley Orchards Company’s motion for nonsuit should have been sustained.

Miller Smith and W. H. Poorman, Judges. Action by Dora Surman and others, as heirs at law of Stephen Surman, deceased, against Richard Cruse and others, administrators with will annexed of the estate of Thomas Cruse, deceased. From a judgment for defendants and from order denying them a new trial, plaintiffs appeal. The defendant Cruse was bound to use reasonable care to conduct his business in a reasonably safe manner.

C. Spencer, Judge.. A-Ctton by John H. Caddel against A. G. Brown and C. M. Taintor. From a judgment for defendant and an order denying him a new trial, plaintiff appeals. The court erred in sustaining the defendants’ motion for directed verdict and entering judgment thereon. There was ample evidence to sustain the allegations of the complaint and to show that the criminal prosecution was instituted by the defendants maliciously and without probable cause.

H. Poorman, Judge. In the Matter of the estate of John T. Murphy, deceased. From a decree finally settling the accounts of the executor, John T. Murphy, Jr., appeals.

B. Winston, Judge. Action by Louis G. Knop against the Chicago, Milwaukee & St. Paul Bailway Company. From a judgment for plaintiff, and from an order denying motion for new trial, defendant appeals. The contention of the plaintiff in the trial of this case was, that the place where the plaintiff’s horses were killed should have been fenced by the defendant, and that since it was not fenced, prima facie the defendant was negligent and is liable for the value of the horses.

<p>Attorneys — Disbarment—Sale of Intoxicating Liquor — Conviction.</p> <p>1. C., an attorney and counselor at law, was charged with conducting a place where intoxicating liquors were sold in violation of law; he pleaded guilty and was sentenced to pay a fine. Charged with conduct justifying his disbarment, he made neither appearance nor answer. Eeld, upon the record of his conviction that he was unfit to be a member of the bar, and his name ordered stricken from the rolls.</p>

N. Utter, Judge. Action by E. I. Jacobson and Julia Keats against Hiram J. Roman, Mabel Roman, Ms wife, and Aime Catellier. From a judgment in favor of the first-named .defendant and one in favor of the last two, the plaintiffs appeal.

Duncan, Judge, Action by Jesse Daly against W. L. Kelley. From a judgment for plaintiff and an order denying him a new trial, defendant appeals.

Original application by tbe State, on the relation of Mayme Eonan Juckem, for a writ of mandate against the District Court of the Second Judicial District in and for the County of Silver Bow, and J. J. Lynch, a Judge thereof.

Lee Word, Judge. Action by C. A. Spaulding against Albert Maillet. Judgment, for defendant, and. plaintiff appeals.

Original application by the State, on the relation of H. E. Jerry, for writ of supervisory control to annul an order of the District Court of the Eighteenth Judicial District in and for the county of Hill, vacating a default judgment.

B. McClernan, Judge. Action by the Interstate Lumber Company against Henry Umhang and S. W. Billings for the foreclosure of a mechanic’s lien, in which the Magill-Nevin Plumbing & Heating Company intervened. A demurrer was sustained to the complaint in intervention, and a judgment entered in favor of defendant Billings. The intervener appeals.

Ayers, Judge. Action by tbe Fergus County Hardware Company against T. E. Crowley. From a judgment for plaintiff and an order ■denying a new trial, defendant appeals.

<p>Office and Officers — District Judges — Salaries—Increase—Constitution.</p> <p>Office and Officers — Salaries—Increase—Purpose of Constitutional Limitations.</p> <p>■ 1. The purpose of the constitutional limitations (Art. V, see. 31, Art. VII, see. 4, Art. VIII, sec. 29) against the passage of laws increasing (or diminishing) the salaries of certain public officers during the term for which they were elected, is to remove the temptation from the legislature to control the executive and judicial branches of government Iby promises of reward in the form of increased compensation (or threats of punishment by way of reduced salaries).</p> <p>Same — Enforcement of Constitutional Limitations.</p> <p>2. The rule established by the above constitutional limitations must be strictly enforced, provided the reason underlying it is present; whenever the reason for it ceases, so does the rule itself.</p> <p>District Judges — Salaries—Who Entitled to Increase.</p> <p>3. Held, that while under the constitutional limitations above (paragraph 1) a district judge elected prior to, and serving at the time of, the passage of an Act increasing the salary of the offiee, would not have been entitled to the increase, his successor appointed to fill the vacancy created by the former’s resignation some seven months after its passage, could rightfully demand the enlarged compensation, the circumstances removing the ease from the operation of the rule referred to in paragraph 1 above. (Mr. Chief Justice Brantly and Mr. Justice Hurly dissenting.)</p>

C. Spencer? Judge. W. K. Smith was convicted of sedition, and appeals from the judgment and from an order denying a new trial. A witness cannot be cross-examined upon collateral matters merely for the purpose of contradicting him.

J. Lynch, Judge, Certiorari by the State, on the relation of Morgan Griffiths, against the Mayor of the City of Bntte and others, to set aside an order of the council removing relator from the office of Chief of the Fire Department. From a judgment affirming the order of the council, relator appeals. We submit that this court has the right to review the evidence and ascertain if there is any substantial evidence to legally warrant the decision below.

Ayers, Judge. Action by the First National Bank of New Castle against Chester A. Grow and others. From a judgment for defendants and an order denying new trial, plaintiff appeals.

Winston, Judge. Action by Anna Heilman against Pat and Patsy Loughrin. From a judgment for plaintiff and an order denying them a new trial, the defendants appeal.

Ayers, Judge. Action by the First National Bank of Lewistown against J. H. Wilson and Maud Wilson, his wife. From a judgment for defendants and an order denying a motion for a new trial, the plaintiff appeals.

<p>Fraud — Real Property — Deeds—Reconveyance—Pleading and . Practice — Complaint—Sufficiency—Inferences.</p> <p>Fraud — Real Property — Reconveyance—'Complaint—'Curing Defeet by Answer.</p> <p>1. In a suit for a reconveyance of land on the ground of fraud, failure of the. complaint to allege that the persons making the fraudulent representations were aeting for defendants (corporations) was cured - ' ‘by an allegation in the answer in effect asserting that the transaction was had in connection with the purchase.</p> <p>8ame — Failure to Read Instrument- — Complaint—-Sufficiency.</p> <p>2. Where a woman, .unable to read or write tbe English language, who charged in her complaint that on making final proof on a desert land entry she was induced by the United States commissioner before whom proof was made, and a member of a firm (subsequently formed into a corporation), that it was necessary for her to sign, and she did sign, a water right location notice in order to acquire title to the lands, whereas the wilting was a warranty deed, her failure to have the paper read and explained to her by some disinterested person did not bar her from seeking the relief demanded, and- dismissal of the action was error.</p> <p>Same — Complaint—Sufficiency—Inferences.</p> <p>3. Held, that the complaint, though not a model of pleading, was sufficient under the rule that whatever is necessarily implied in, or reasonably to be inferred from, an allegation, is to be taken as direetly averred.</p> <p>Same — Grantee Liable to Giantor for Conveyance to Third Person After Demand for Reconveyance.</p> <p>4. Where a deed alleged to have been fraudulently secured from the owner was made to a bank as security for a debt owing to it from the purchaser, and the seller upon learning of the fraud demanded a re-conveyance from the bank, which, instead of doing so, eonveyed to the purchaser, it did so at its peril and could not escape liability on the ground that coneededly no fraud was practiced by it on the seller in the original transaction.</p>

<p>Original application for mandamus by the State, on relation of William L. Gleason, against Charles T. Stewart, as Secretary of State.</p>

Lee Word, a Judge for the First District, presiding. Action by W. W. Harvey, against the Town of Townsend, a municipal corporation, and B. Williams, Treasurer of Broad-water County. From a judgment for plaintiff, defendants appeal.

<p>Mandamus — New Counties Act — Constitution—Exclusion Petitions — Insufficiency—Constitutional Law — Unequal Taxation■ —Statutes—Legislative Proceedings — Extent of Review.</p> <p>Mandamos — New Counties — Board of County Commissioners — Availability-of Writ.</p> <p>1. Mandamus lies to compel the board of commissioners of a county from which the greater portion of a proposed new eounty is intended to be taken to reconvene and take jurisdiction of the proceeding, where its refusal to proceed was based upon an erroneous decision of purely preliminary questions of law.</p> <p>New Counties — -“Taxpayer”—Definition.</p> <p>2. A “taxpayer” within the meaning of section 2 of the New Counties-Act (Chap. 226, Laws of 1919) which requires petitions for the creation of a new county to be verified by five resident taxpayers, is one-who owns property within the eounty and who pays, or is subject to» and liable for, a tax.</p> <p>Same — -Taxpayer—Failure to Place Name on Tax-roll — Effect.</p> <p>3. Where the owner of personalty listed it and paid taxes thereon,, failure -of the assessor to place his name on the tax-roll, or the fact, that the property was mistakenly assessed in the name of a newspaper-of which he was the owner, did. not have the effeet of disqualifying ■him as a “taxpayer” as above defined.</p> <p>Same — Exclusion Petition — “Block”—Insufficiency.</p> <p>4. Held, that the requirement of Chapter 226, Laws of 1919, that territory sought to be excluded from a proposed new eounty must be-in one block — the -word “block” implying solidity or compactness — was-not met by a petition describing an irregularly shaped tract distributed over fourteen townships, the exterior boundaries of which ran back and forth, in all directions of the compass, alternately including and excluding small tracts, so threaded together as to preserve its continuity, and ineluding those against the creation of the new eounty and excluding those favoring it.</p> <p>Same — Exclusion Petition — Majority Buie.</p> <p>5. The intent of the legislature in enacting the provision that territory sought to be excluded from a proposed new eounty must be in one-block, held -to have been that a block should be mapped out, irrespective-of the personnel of those residing within it, the majority of the resident's thereof to determine whether, as a whole and not as individuals., they go with the new or remain in the old eounty.</p> <p>Same — Defective Exclusion Petition.</p> <p>6. Where the territory described- in an exclusion petition filed in a proceeding to create a new county left certain tracts in the proposed' new county contiguous to the remainder of the old county, but entirely" surrounded by exclusion territory and segregated from the remainder of the new county, such tract should have been included in the exclusion petition.</p> <p>Same — Expense of Preliminary Proceeding — Constitution—Unequal Tax Burdens.</p> <p>7. Failure to make provision for reimbursement of the county from which the greater area for a proposed new county is taken for the expense incident to the creation of the new county, held not to render Chapter 226, Laws of 1919, violative of section 11 of Article XII of the Constitution, as casting an unequal burden of taxation upon the old county.</p> <p>Statutes — Irregularity in Legislative Proceedings — Extent of Review of Journals.</p> <p>8. Under the rule that where the constitutionality of an Act is questioned on the ground of irregularity in its passage, the only purpose for whieh courts may go behind the enrolled bill is to ascertain whether the aye and no vote was entered in the journals of the legislative assembly, it is not permissible to determine whether an amendment to a bill made by a joint conference committee was considered by either house before passage upon third reading.</p>

Winston, Judge for the Third District, presiding. Action by William F. Fagan against Joseph Silver and others. From a judgment for plaintiff, and from order denying a new trial, defendant Silver appeals. The contract in this case was to do a lawful thing, which, if done in a proper manner, would be reasonably safe for the owners of property in the neighborhood. If it was not so done, no liability attaches to appellant. (Ferguson v. Hubbell, 97 N. Y. 507,. 49 Am.

<p>Original application for writ of prohibition by the state of Montana, on the relation of Andrew Thompson, to restrain the District Court of the Fourteenth Judicial District in and for the County of Meagher and E. H. Goodman, Judge thereof, from proceeding further in a certain action.</p>

<p> Appeal from District Court, Lewis and Clark County; R. Lee Word, Judge. </p> <p>Action by the Union Bank & Trust Company against Anton and Mabel Himmelbauer. From an order denying a motion to discharge an attachment, the last-named defendant appeals.</p> <p>Is the defendant Mabel Himmelbauer bound by the provisions of a chattel mortgage which she did not sign and to which she was not a party? That a note and a mortgage or other agreement between the same parties, and contemporaneously executed, are to be construed together, is well settled. (8 C. J. 196, note 90.) But it is held that the contemporaneous agreement must be between the same parties as the note itself. Thus, where only one of the makers of a note joins in a mortgage which provided for an accelerating of the maturity date on default of payments, it does not control the time of maturity fixed by the note. (8 C. J. 197, and notes'; Trease v. Hag gin,. 107 Iowa, 458, 78 N. W. 58.) So far as we have been able to find, the above is the only reported ease which appears to have-had under consideration the identical question here presented. In the case at bar, Mabel Himmelbauer did not join in the mortgage, and therefore the rule does not apply to her; nor did she in any way consent that the note in suit should become due at any other time than that expressed on its face. Clearly, as to ■her, no other agreement was ever made than that expressed in the note, and it did not become due as to her until June 17, 1918.</p> <p>The allegations of the complaint are that “the defendants” made, executed and delivered the promissory note sued on; that to secure the payment of the note “the defendants” made, executed and delivered the mortgage. Under this allegation it is not necessary that the appellant should have signed the mortgage. If she, as one of the signers of the note, delivered or gave to the bank the mortgage as further security for the payment of the note, she was a party to the “transaction,” and the terms of the mortgage are admissible against her to the same effect as if she had signed it. (Rev. Codes, sec. 5031.)</p> <p>This section does not require all of the contracts to be signed by all of the parties. It is sufficient if all of the contracts are made as parts of substantially one transaction. The appellant, was a party to the note. By delivering the mortgage as security for its payment, and availing herself of the benefits of it, she thereby makes it a part of the “transaction” to which she was a party. Persons standing in the situation of parties or who are chargeable with notice of the contemporary instruments are bound by their terms, the same as the signers thereof. (8 O. J. 196, see. 327.)</p>

Matthews, Judge. Action by M. L. Duckett against Moses Biggs. From a judgment for defendant, and an order denying his motion for a new trial made, plaintiff appeals.

Duncan, Judge. Action by W. E. Koch against George W. Rhodes and another. From a judgment for plaintiff, and an order denying a new trial, defendants appeal.

<p> Appeal from District Court, Silver Bow County; Jeremiah J. Lynch, Judge. </p> <p>Philip Prlja was convicted of assault in the second degree, and from judgment and order denying his motion for a new trial, he appeals.</p> <p>The trial court unduly restricted the cross-examination of the complaining witness Burzan and effectively prevented the placing before the jury of,the truth as to all the facts surrounding the occurrence of the acts complained of. This court has held that this right should not be so restricted. (Cobban v. Hecklen, 27 Mont. 245, 70 Pac. 805; State v. Whitworth, 47 Mont. 424, 133 Pac. 364; State v. Wakely, 43 Mont. 427, 117 Pac. 95.)</p> <p>The affidavits filed in support of the defendant’s motion for a new trial conform to all the requirements of law concerning the contents and showing necessary in such affidavits, in order . to secure a new trial. (State v. Matkins, 45 Mont. 58, 121 Pac. 881.) As is shown by them, it was impossible for the defendant at the time of his trial or before to secure the testimony that these affidavits show the affiants were and are able to offer in behalf of the defendant. If the state of facts set forth in the affidavits in support of the motion for a new trial were placed before the jury, as they would be in a new trial, it is indeed very probable that there would be an entirely different result and that the defendant would be acquitted. (State v. Matkins, supra; Spencer v. State, 69 Tex. Cr. 92, 46 L. R. A. (n. s.) 903, 153 S. W. 858.) The newly discovered evidence is not cumulative merely. It is from and through a source that brings it to the jury without the legal handicap placed upon the defendant in bringing like evidence before the jury, and the new evidence is all from eye-witnesses wholly independent of the defendant. (Rev. Codes, sec. 7859; Spencer v. State, supra; Green v. State, 6 Ga. App. 784, 65 S. E. 802; Adams v. State, 55 Fla. 1, 46 South. 152; State v. Townsend, 7 Wash. 462, 35 Pac. 367; Holton v. State, 6 Ga. App. 414, 71 S. E. 599.)</p> <p>Before the court would have been justified in granting a new .trial to the appellant, the latter should have submitted his own affidavit showing that he had no knowledge of any of the witnesses whom he now proposes to produce at the new trial, and further, that he used diligence in attempting to ascertain who were present at the time material to this inquiry. There should also have been submitted affidavits by all of the lawyers who represented the defendant showing that they had no knowledge of any of the proposed new witnesses and that they, and each of them, had used due diligence in attempting to discover who were present at or near the place where the act complained of occurred. (Smith v. Shook, 30 Mont. 30, 77 Pac. 513; Nicholson v. Metcalf, 31 Mont. 276, 78 Pac. 483; Spencer v. Spencer, 31 Mont. 631, 79 Pac. 320.)</p>

B. Rhoadesy Judge. Chris Wehr was convicted of unlawfully disposing of intoxicating liquors, and appeals.

<p>Cause submitted on briefs of counsel in State v. Wehr, ante, p. 469.</p>

C. Smith, Judge. Albert Brooks was convicted of sedition, and from the judgment and from an order denying his motion for new trial, he appeals. Before taking up the specific rulings, we think it proper to discuss two propositions which go to the root of the principal disqualifying cause urged against the Jurors Stinson, Hollingsworth, Andrus, Shawver and Barrett. Both of these propositions the court seemingly ignored. They are: 1.

Pierson, Judge. Action by Owen B. Parham against the Chicago, Milwaukee & St. Paul Railway Company. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. What is the liability of the appellant railway company for not stopping the shipment in question at Stockdale for feeding purposes? Recovery is sought under the Act of Congress generally known as the Carmack Amendment of June 29, 1908, as subsequently amended.

<p> Appeal from District Court, Silver Bow. County; Edwm M. Lamb, Judge. </p> <p>Action by the Noyes Estate, a corporation, against the Granite-Alaska Company. From a judgment for plaintiff, the defendant appeals.</p>

Original application for Writ of Prohibition on the relation of Charles F. Wooten, against the District Court of Silver Bow County and Joseph R. Jackson, a judge thereof. The district court had jurisdiction to award temporary alimony, suit money and attorneys’ fees in the annulment action.

<p>Original application for a writ of mandamus, on the relation of Chas. E. Pew against George P. Porter, State Auditor.</p>

B. Law, Judge of the Ninth District presiding. Walter Vandervoort was convicted of murder in the second degree, and from the judgment and an order denying his motion for a new trial he appeals.

Taylor, Judge. Suit by E. E. Reeve to restrain the City of Billings and others from levying the cost of special improvements against his property. Judgment for defendants, and plaintiff appeals.

A. Clark, Judge. Action by the McCaull-Dinsmore Company, a corporation, against P. V. Jackson. From a judgment for defendant, plaintiff appeals. Did the defendant have the right to abandon or rescind the contract for the delivery of the wheat in controversy upon the receipt of the circular letter offered in evidence?

Lee Word, Judge. R. B. Smith was convicted of sedition, and appeals from the judgment and an order denying him a new trial. Reversed and remanded. The information charges that the defendant did “at the county of Lewis and Clark, state of Montana * * * write and print and publish and circulate” the editorial set forth in the information. The testimony in the case showed conclusively that the article was not written and was not printed in Lewis and Clark county.

. In the Matter of the application of John F. Sullivan for a. license to practice law. Applicant suspended until January 1, 1921, with leave, to be then reinstated on showing of good moral character.

Lee Word, Judge. Action by the Beartooth Stock Company against Thad. G. Grossenp. From an order dissolving an attachment, plaintiff appeals.

Original application by tbe State of Montana, on the relation of N. L. Nelson, for an injunction against J. O. Timmons and others, constituting the Board of County Commissioners, and A. A. Major, Clerk, of Sheridan County.