Volume 58 — Montana Reports

<p>States — Powers—Public Indebtedness—Terminal Grain Elevators—Statutes—Constitution—Taxation.</p> <p>States—Constitution—Power to Engage in Business of Operating Crain Elevators.</p> <p>1. It not being prohibited from doing so by the Constitution, the state may, under its police power, lawfully engage in the business of operating a grain elevator or in other similar business for the benefit of the public.</p> <p>Same—Statutes—Terminal Crain Elevators — Constitution — Uniformity Clause.</p> <p>2. Held, that Chapter 150, Daws of 1919, requiring a levy of a tax upon lands “agricultural in character” for the purpose of bond issues for the construction of terminal elevators, does not violate the uniformity clause of the Constitution.</p> <p>Same—Taxation—Lands “Agricultural in Character”—Definition.</p> <p>31. Held., that the words ‘‘agricultural in character” as used in section 4, Chapter 150, Laws of 1919, referring to lands subject to taxation for the purpose of creating the “terminal elevator fund,” are sufficiently definite and certain to enable assessing officers in determining what lands they shall list, the term meaning lands susceptible of being plowed and seeded or from which crops may be produced.</p> <p>Statutes and Statutory Construction—Definition of Words.</p> <p>4. Where words have, in the law, a well-defined meaning, their use in a statute, without specific definition, does not render the Act inoperative for uncertainty.</p> <p>States—Creating State Debt—Taxation—Constitution.</p> <p>5. Chapter 150, Laws of 1919, section 4, though needing revision, held not so defective as to render it unconstitutional under section 2, Article XIII, of the Constitution, which declares that when a state debt is created, provision shall be made for the levy of a tax for payment of the principal and interest.</p> <p>Statutes—Constitutionality—Buie for Determining.</p> <p>■6. The constitutionality of a statute will be upheld unless it appears beyond a reasonable doubt that the Act' is unconstitutional.</p> <p>Statute and Statutory Construction—Surplusage.</p> <p>7. Words in a statute which can be given no effect consistent with the plain intent of the statute, or words which, if given effect, may defeat the manifest purpose of the Act, should be eliminated or regarded as surplusage.</p> <p>Terminal Elevator Statute—Tax Levy—^Sufficiency—Legislative Question</p> <p>8. Whether a tax levy provided by the legislature for the erection and maintenance of state owned terminal grain elevators is sufficient to meet the obligation of the state is a legislative question with which the court has nothing to do, and, in the absence of a showing of insufficiency, it will be presumed to be ample. .</p>

<p>Criminal Law — Sedition — Jury — Challenges — Witnesses — Hearsay—Cross-examination—Collateral Matters—Evidence— Issues—Instructions.</p> <p>Criminal Law—Selection of Jury—Peremptory Challenge by Trial Judge—■ What may Constitute.</p> <p>1. Where a juror in a criminal prosecution had shown himself possessed of the statutory qualifications for jury service, a suggestion by the trial judge to the county attorney that if he would challenge the juror the challenge would be sustained, amounted to the exercise of a peremptory challenge—a right not possessed by such judge—was prejudicial error.</p> <p>Same—Jury—Challenge for Cause may be Waived.</p> <p>2. A challenge for cause may be waived, and is waived, unless availed of at the proper time.</p> <p>Same—Selection of Jury—Eight of Defendant.</p> <p>3. A defendant is entitled to insist that the jury shall be selected according to law.</p> <p>Same—Witnesses—Testimony to Support Character-—When Inadmissible.</p> <p>4. Testimony introduced in a prosecution for sedition, to support the good character of the state’s chief witness before it' had been impeached, was inadmissible under section 8026, Revised Codes.</p> <p>Same—Reputation of Prosecuting Witness—Hearsay.</p> <p>5. Testimony that the federal Department of Justice and the -attorney general of the United States had investigated and passed favorably upon the record of a state witness, an ex-convict and alien enemy employed to detect violations of the sedition statute, was inadmissible as hearsay.</p> <p>Same—Appeal and Error—Harmless and Harmful Error—How Determined.</p> <p>-6. No judgment will be reversed for technical errors or defects appearing in the record which do not affect' the substantial rights of the complaining party, the question whether the particular error shall be classed as harmful or harmless depending upon the peculiar facts and circumstances in the particular case under review.</p> <p>Same—Witnesses—Cross-examination—Impeachment on Collateral Matter.</p> <p>7. Where a character witness for defendant had testified that the latter’s reputation for honesty and integrity was good, it was error to require him to answer the question on cross-examination whether on previous occasions he had not used language indicating his pro-German sympathies; a witness not being subject to impeachment upon a collateral matter brought out on cross-examination.</p> <p>Same—Cross-examination—Collateral Matter—-Test.</p> <p>8. The test by which to determine in a criminal prosecution whether a question asked a witness of defendant on cross-examination relates to a collateral matter on. which the witness’ answer is conclusive, is whether the state could properly have introduced evidence on the subject in its case in chief.</p> <p>Same—Witness Testifying from Memorandum—Cautionary Instruction.</p> <p>9. Held, that where a witness testified to seditious language used by defendant, from a memorandum extended by the former from notes made by him when the statements were said to have been made, refusal to instruct the jury to receive such testimony with caution was error, defendant having been entitled to such an instruction under section 8020, Revised Codes, -as a matter of absolute right.</p> <p>Same—Detectives—-Cross-examination—Undue Restriction.</p> <p>10. Where the state's principal witness in a prosecution for sedition, a detective, was an alien enemy, self-eonfessed forger and ex-convict, who had been in this country but' a comparatively brief period, it was prejudicial error to restrict his cross-examination; in such cases a broad liberality of cross-examination should be indulged.</p> <p>Same—Sedition—Issues—Jury Questions.</p> <p>11. In a prosecution under Chapter 11, Laws Extra. Session of 1918, for making seditious utterances, the plea of not guilty put in issue not only the question whether defendant had used . the language charged, but whether, if used, it was calculated to bring the form of government, the Constitution, army and navy into contempt, scorn and disrepute—a fact to be determined by the jury.</p> <p>Same—'Sedition—-Issues—Definition—Instructions.</p> <p>12. Failure of the trial court to define t'he issues involved in a prosecution for sedition as set forth above (paragraph 11) in its instructions to the jury, or to advise them that it was necessary to a conviction that the state prove beyond a reasonable doubt that defendant uttered the objectionable language and that such language was calculated to have the effect charged in the information, was error, as was also the giving of an instruction that they could find defendant guilty if he had at any time between a certain date and the filing of the information done any of the things condemned by the Sedition Act.</p>

Jackson, Judge. Proceedings under the Workmen’s Compensation Act by Martha Willis against the Pilot Butte Mining Company, employer, and the Aetna Life Insurance Company, insurer. Compensation was awarded by the Industrial Accident Board, the award affirmed by the district court, and from its judgment the employer and insurer appeal. The burden was upon Martha Willis to show that the injury arose out of the employment. (Union Sanitary etc. Co. v. Davis (Ind. App.), 115.

Tattan, Judge. Action by the Chester State Bank against the Great Northern Railway Company, the Minneapolis Threshing Machine Company, and others. From a judgment for plaintiff, defendant Minneapolis Threshing Machine Company, appeals. The legislature could not, by its act in dividing Chouteau county and creating Hill county, affect the rights of any party which it had acquired prior to the division of the county. (See note and citations in 18 Am. & Eng. Arm.

Original writ of review by the State, on the relation of M. E. Wooster, against the District Court of the Fourth Judicial District for the County of Ravalli, and R. Lee McCulloch, a Judge thereof, to review an order changing the venue of an action by M. E. Wooster against Henry A. Jones and others.-

' Appeal from District Court, Jefferson County; W. A. Clark, Judge. Action by Ruth Wilcox against L. Newman, Prom a judgment for defendant after nonsuit was granted and an order denying motion for new trial, plaintiff appeals,

<p>Salés — Contracts — Evidence — Admissibility — Appeal and Error—Briefs—Instructions.</p> <p>Contract's—Evidence—Admissibility—Varying Terms, of Writing.</p> <p>1. Held, that evidence explanatory of the circumstances leading up to the making of a written contract of sale of a cash register with reference to a “special” key attachment, as well as of the conversation had between defendant and plaintiff’s agent at the time it was made, was admissible, under section 5036, Revised Codes, and not objectionable as tending to vary the writing.</p> <p>Appeal and Error—Briefs.</p> <p>2. Error not discussed in the brief of appellant is not entitled to review on appeal.'</p> <p>Contracts—Provision for Return of Article—When not Duty of Purchaser.</p> <p>3. A provision in a contract for the sale of a cash register by which title was retained by the seller and which required buyer to pay expenses of transportation for repairs did not require the buyer to return the register to the seller in case it failed in the purpose for which it was sold.</p> <p>Instructions—When Refusal Proper.</p> <p>4. Tendered instructions inapplicable to the issues, or covered by others given, were properly refused.</p>

<p> Appeal from District Court, Sanders County; B. Lee Mc-Culloch, Judge. </p> <p>Action by H. O. Worden, trustee of Eli Morigeau, bankrupt, against Joseph Morigeau. From a judgment for defendant and an order denying a new trial, plaintiff appeals.</p> <p>The phrase, “reasonable cause to believe,” as used in this section of the Bankruptcy Act, has been construed and defined in many opinions. It covers substantially the same field as “notice.” It does not mean actual knowledge, but only such information as would put an ordinarily prudent man upon inquiry. (Blyfh & Fargo Co. v. Eastor, 17 Wyo. 180, 97 Pac. 921; Atherton v. Emerson, 199 Mass. 199, 85 N. E. 530; In re W. W. Mills C'o., 162 Fed. 42; In re The Leader, 190 Fed. 624; Tilt v. Citizens’ Trust Co., 191 Fed. 441; Stern v. Paper, 183 Fed. 228; Patterson v. Baker Grocery Co., 73 Or. 433, 144 Pac. 673; Utah Assn, of Credit Men v. Boyle Furniture Co., 39 Utah, 518, 117 Pac. 800; Pepperdine v. National Exchange Bank, 88 Mo. App. 81.)</p> <p>Since the amendment of 1910, the intent of the bankrupt is wholly immaterial in determining whether a transfer constitutes a voidable preference. The actual effect of the transfer is substituted for the intent of the debtor, and if the inevitable effect of enforcing the transfer will be to give the creditor grantee a greater percentage of his debt than that received by other creditors of the same class, then the transfer constitutes a voidable preference. (7 Corpus Juris, p. 154, sec. 252; Schmidt v. Bank of Commerce, 15 N. M., 470, 33 L. R. A. (n. s.) 558, 110 Pac. 613; Soule v. First Nat. Bank, 26 Idaho, 66, 140 Pac. 1098; Patterson v. Baker Grocery Co., 73 Or. 433, 144 Pae. 673; Gill v. Ely-Norris Safe Co., 170 Mo. App. 478, 156 S. W. 811.)</p> <p>The primary purpose of the Bankruptcy Act is to “secure an equal and a speedy distribution of the property of the bankrupt among his creditors” (7 Corpus Juris, sec. 10), and it should be interpreted reasonably “with a view to effect its object and to promote justice.” (7 Corpus Juris, see. 12; In re Blount, 142 Fed. 263.)</p> <p>To constitute a preference the insolvency must exist at the time of the alleged preferential transfer. To show this condition of insolvency at the time of the transfer, the schedules filed in the subsequent bankruptcy proceedings and the appraisement filed therein are not of themselves sufficient evidence. The rule is that the burden is upon the trustee to show by a preponderance of evidence that the condition of insolvency existed at the time the transfer was made. (Collier on Bankruptcy, 11th ed., p. 869; Tumlin v. Bryan, 165 Fed. 166, 21 L. R. A. (n. s.) 960, 91 C. C. A. 200; In re F. M. & S. Q. Carlile, 199 Fed. 612; Schilling v. Curran, 30 Mont. 370, 76 Pac. 998.)</p> <p>If the court should find that the transfer in question was a preference, then it is conceded that, in order to recover, the plaintiff must show by a preponderance of evidence that at the time of the transfer the defendant had reasonable cause to believe that the transfer would result in a preference in his favor. A mere suspicion on the part of a person in the position of this defendant as to the insolvency of his debtor, or as to the probable effect of a transfer, is not sufficient. {Nichols v. Elken, 225 Fed. 689, 140 C. C. A. 563; Ijlosenman v. Coppard, 228 Fed. 114, 142 C. C. A. 520; Beall v. Bank of Boiuden, 219 Fed. 316; Newman v. Tootle etc. Dry Goods Co., 174 Mo. App. 528, 160 S. W. 825.) '</p> <p>The question whether or not the defendant had reasonable cause to believe was one for the jury. The issue was submitted to the jury and it found in favor of the defendant, and this finding should not now be disturbed. (See Kaufman v. Tred-’ way, 195 U. S. 271, 49 L. Ed. 190, 25 Sup. Ct. Rep. 33 [see, also, Rose’s U. S. Notes]; Coleman v. Decatur Egg Case Co., 186 Fed. 136, 108 C. C. A. 248; Marshall v. Nevins, 242 Fed. 476, 155 C. C. A. 252; Kentucky Bank & Trust Co. v. Pritchett, 44 Okl. 87, 143 Pac. 338; 7 C. J. 274.)</p>

Tattan, Judge. Proceeding by the State, on relation of Emery D. Harnden, for writ of mandamus against Merritt Flanagan, as Sheriff of Chouteau County. From a judgment issuing a peremptory writ defendant appeals. Section 6839, Revised Codes, prescribes the steps necessary to be taken by a redemptioner.

J. Lynch, Judge. Action by Letitia M. Smith, executrix, substituted for M. G-. Smith, deceased, against Michael Sullivan, doing business as the Sullivan Electric Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals. The open and patent error in admitting the slips in evidence ought to require no argument, in the light of the decisions of this court.

Ayers, Judge. Action by Joseph A. Wipf against James Kelleher and Leon A. Kelleher, copartners doing business under the firm name and style of James Kelleher & Son. From a judgment for plaintiff and an order denying their motion for new trial, defendants appeal.

Original application by the State of Montana, on the relation of the Mayor and the Examining and Trial Board of the Police Department of the City of Butte, for a writ of prohibition directed to the District Court of the Second Judicial District for the County of Silver Bow.

C. Spencer, Judge. Action by A. J. Church against J. Zywert. From a judg- ' ment for plaintiff pd an order denying him a new trial, defendant appeals. The market value at Billings, Montana, the place of delivery of the cattle was not made the basis of the verdict in this case.

Leonard De Kalb, Judge. Action by tbe Acme Harvesting Machine Company against M. J. Benedict. From a judgment for plaintiff and an order denying defendant a new trial, the latter appeals.

Original application for writ of supervisory control on the relation of the Hart-Parr Company to annul an order of the District Court of Musselshell County setting aside a default judgment.

Dwyer, Judge. Mandamus by the State, on the relation of Peter T. Breen, against the Mayor of the City of Butte, William T. Stodden, incumbent. From a judgment awarding a peremptory writ, defendant appeals.

Smith, Judge. Action by Mattie A. Tuttle against the Pacific Mutual Life Insurance Company. From a judgment for plaintiff, defendant appeals. The burden of proof was upon the plaintiff to show not only the disappearance or even the death of the assured, but also that the death was caused by violent, accidental, and external means, independent of any other cause within ninety days of the injury.

E. Comer, Judige. Mandamus by the state on tbe relation of Jos. Held: “The word ‘audit’ is sometimes restricted to a mere mathematical process but is generally extended to include investigation, weighing of evidence and deciding whether certain items should or should not be included.” It may be conceded that the term “audit” ordinarily implies a hearing, and upon such hearing, a determination or…

Taylor, Judge. Action by Lura A. Nelson against the Mutual Life Insurance Company of New York. From a judgment for defendant and order denying new 'trial, plaintiff appeals. The default upon the part of the insured in failing to pay premium upon August 10, or within thirty days thereafter, was waived by the company: (a) By its acceptance of the payment thereof upon October 8. (25 Cyc. 870; 14 R. C. L., “Insurance,” 367; Shea v. Massachusetts Ben. Assn., .160 Mass. 289, 39 Am.

Lynch, a Judge of the Second District, presiding. Proceeding by „ tbe State, on the relation of Parley A. Dansie, against Joseph P. Nolan, to enjoin the closing of a road. From an order dissolving a temporary restraining order and denying an injunction pendente lite, the relator appeals.

V. Dwyer, Judge. Felix Gomez was charged for murder, and, an acquittal having been directed, the state appeals. From the facts appearing in the record, together with the flight of Felix Gomez, we believe that a sufficient showing was made to take the case to the jury. He knew. that murder was about to be committed. He had been invited to go back and assist in the killing.

Crum, Judge. Action by Bradford H. Ellis against E. A. Cornwell and another. Judgment for defendant. PlaintifE appeals. Section 324 of the Revised Codes provides that each notary public shall give a bond in the sum of $1,000. This is for the protection of persons who may be injured by the acts of the notary public. The bondsmen are responsible for any acts of the notary public by which others are injured.

Duncan, Judge. Action by the R. M. Cobban Realty Company, a corporation, against the Chicago, Milwaukee & St. Paul Railway Company of Montana and another. From a judgment for plaintiff and an order denying them a new trial, defendants appeal.

Crum, Judge. Action for slander by Marie Allen Daniel against W. P. Moncure. Judgment for plaintiff. Defendant appeals from the judgment and an order denying her a new trial. Held: as did this court before the enactment of our statute defining slander, that the words used in slander must impute crime before they are objectionable per se.

B. Rhoades, Judge. Action by Kathryn C. McLean against James L. Dickson and another. A motion to separately state and number causes of action was sustained, and, plaintiff refusing to plead further, judgment of dismissal was entered, from which plaintiff appeals. The motion ought not to have been sustained on the merits. There is but one cause of action stated, to-wit, a conspiracy to injure and aets done in furtherance thereof, to appellant’s damage.

Law, Judge. Action by the Sanborn Company against G. R. Powers and another, copartners as Powers & Black. From a judgment for plaintiff, and an order denying a new trial, the named defendant appeals. The cases of Beasley v. Berry, 33 Mont. 477, 84 Pac. 791, Croft v. Bain, 49 Mont. 484, 143 Pac. 960, Flathead County State Bank y. Ingham, 51 Mont. 438, 153 Pac. 1005, Hanruhan y. Freeman, 35 Mont. 584, 90 Pae. 793, and St. Paul Machinery Mfg.

C. Spencer, Judge. Action by the Montana Livestock & Loan Company against William Stewart. From a judgment for plaintiff, and an order denying his motion for new trial, defendant appeals. Taking a cheek or draft which is dishonored and proves to be worthless does not amount to payment.

Tattan, Judge. Annulment- Proceedings by Willis A. McMurray, against Bessie L. McMurray. From an order awarding defendant temporary alimony, suit money and attorney’s fees, plaintiff appeals.

. Appeal from District Court, Samders County; Asa L. Dust-can, Judge. Action by C. S. Eobison against the Dover Lumber Company. From a judgment for defendant, and an order denying his motion for new trial, plaintiff appeals.

Crum, Judge. Action by tbe Bank of Commerce of Forsyth, Montana, against the United States Fidelity & Guaranty Company. Judgment for plaintiff. Defendant appeals from it and an order denying its motion for a new trial. Mr Chief Justice Brantly and Mr. Justice Hurly dissenting. Sureties on an official bond are not precluded from their defense because of a default judgment against the principal. {F oxer oft v. Nevens, 4 Me. 72;- Hawes v. Shed, 15 Mass. 6, 8 Am.

'Appeal from District Court, Granite County; George' B. Winston, Judge. Action by Lee C. Degenhart against George A. Cartier and others. Judgment for plaintiff and defendants appeal. Under the doctrine of money had and received, plaintiff is entitled to recover. Appellant took and received from the county treasurer money, which in equity and good conscience he ought not to retain, but in equity and good conscience he should return to respondent.

Action by Muriel McIntyre against the Northern Pacific Railway Company, William T. Finnegan and others. From a judgment in favor of the defendants named; and an order denying a new trial, plaintiff appeals.

Appeals from District Court of Lewis and Clark County; B. Lee Word, Judge. Action for divorce by Andree C. Lagier against Louis Lagier. Judgment for plaintiff. Defendant appeals from it and an order denying his motion for a new trial.

Original application for writ of supervisory control by the State of Montana, on tbe relation of Edward B. Keiley and others, who had been adjudged to be in contempt, against the District Court of the Third Judicial District for the County of Powell, and George B. Winston, the Judge thereof.

Certiorari by the State, on the relation of Wellington D. Rankin, against the District Court of the First Judicial District in and for the County of Lewis and Clark and R. Lee Word, a Judge thereof, to review an order adjudging relator guilty of contempt. The judgment sought to be annulled is void upon its face. It fails to state any facts showing a contempt.

H. Doorman, Judge. Action by Frank J. Edwards to restrain tbe city of Helena from issuing its water bonds. Complaint dismissed. Plaintiff appeals from tbe judgment.

Lee Word, a Judge of the First District. Suit by G. E. Pool against the Town of Townsend and B. Williams, Treasurer of Broadwater County, to restrain the collection of taxes. Judgment for plaintiff, 'and defendants appeal. The town council of Townsend intended the resolution of May 13, 1913, to be a resolution of intention, and acted upon it as such.

Lee Mc-Culloch, Judge. ( Action by Joseph M. Hayes against Mary Smith, as treasurer of Sanders County, Montana. Judgment for plaintiff and defendant appeals. The first contention of respondent to be considered is that the statute' or law providing for such assessment and taxation was and is unconstitutional and that it does not provide for the uniformity of taxation.

<p>Original application for writ of supervisory control to annul an order of the District Court of Lewis and Clark County in a divorce action.</p>

Lee Word, Judge. Action by George Carter against the Bankers’ Insurance Company. From an order dissolving an attachment plaintiff appeals. The ruling of the court below was based on the decision of this court in the ease of Ancient Order' of Hibernians v. Sparrow, 29 Mont. 132, 101 Am. St. Rep. 563, 1 Ann. Cas. 144; 64 L. R. A. 128, 74 Bac. 197.

Action for divorce by Hattie Sell against Herman Sell. From orders refusing to set aside plaintiff’s default and denying her motion for new trial, and from a judgment rendered for defendant, plaintiff appeals.

P. Stark, Judge. Original application for writ of prohibition by the State, on the relation of the First National Bank of Molt, against Warren Heath and others, as the Board of Review for Big Lake Drainage District No. 1, Stillwater County, and H. M. Ray, as Drain Commissioner of said County. From a judgment quashing an alternative writ, relator appeals.

Original application for writ of supervisory control, on the relation of Paul Scott against the District Court of the Thirteenth Judicial District in and for the County of Yellowstone and Honorable A. C. Spencer, a Judge thereof. • The theory of the relator is that the contempt order of June 24, 1920, was improper and void for the following reasons, to-wit: First, that the record shows a complete inability upon the part of the relator at all times since May 15, 1920, to…

Winston, Judge. Action by Henry Hinzeman and J. A. Kerruish against the City of Deer Lodge and others. From an order denying an application for' an injunction, plaintiffs appeal.

E. Ewing, Judge. Suit by Lavin C. Pbilbrick against the American Bank & Trust Company and others to have a trust declared terminated and the trust estate delivered to her. Decree for defendants, and plaintiff appeals. After appeal, plaintiff made application to the supreme court for writ of supervisory control to annul an order of the district court dismissing the suit.

B. Winston, Judge. Action by the Butte Miners’ Union against the City of Butte.' From a judgment for defendant and from an order denying it a new trial, plaintiff appeals. The states of New York and Pennsylvania have sections founded on the same principle as our section 3485. The court of appeals of New York in the ease of Darlington v. Mayor etc. of City of New York, 31 N. Y. 164, 88 Am.

Action by Ellis F. Hopkins against the Paradise Heights Fruit Growers’ Association. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

Action by Paul Johnson against the Northern Pacific Railway Company. Verdict for plaintiff, and, from order granting defendant a new trial, plaintiff appeals.

B. Rhoades, Judge. Action by the Thos. O’Hanlon Company, Incorporated, against Henry Jess, Jr., and wife. Judgment for defendants and plaintiff appeals. Where an account is rendered by one person to another, the retention of the same by the latter beyond a reasonable time without objection is evidence of his assent to the correctness of - the account and accordingly is evidence of an account stated.

Taylor; Judge. Action by C. A. Didriksen against the Broadview Hardware Company and another. Judgment for plaintiff and defendants appeal. In order to constitute a cause of action in conversion, the complaint must allege not only a general or special ownership in the personal property, but also actual possession of the property, or the right to its immediate possession by plaintiff at the time of the alleged conversion by defendant.

H. Poorman, Judge. Action by Minnie Zalac against Joseph and Margaret Barich. Judgment for plaintiff. Defendants appeal from the judgment and an order denying a new trial.

Action by the Missoula Belt Line Railway Company against George P. Smith and others. Held: “It was not sufficient ground for setting aside the default that it was entered pending the hearing of the motion to dismiss. * * * The motion to dismiss the action did not extend the time to answer.” Under section 6719 the three ways of preventing default enumerated in subdivision 1 all relate back to the first part of the section,…

<p> Appeal from District Court, Sheridan County; C. E. Comer, Judge. </p> <p>From an order sustaining a demurrer to an information against the Libby Yards Company, the State appeals.</p>

McClernan, Judge. Action by H. J. Scbumacber, as administrator of the estate of Bdson Currier, deceased, against the Murray Hospital, a corporation, and others. From judgment for plaintiff and an order denying their motion for new trial, defendants appeal. There can be no recovery in a malpractice case without medical expert testimony to show lack of requisite skill and care on the part of the defendant.

J. Lynch, Judge. Action by Thomas C. Ecclesine against the Great Northern Railway Company. Defendant appeals from a judgment for plaintiff and from an order denying it a new trial. The court committed error in overruling the demurrer to the complaint.

B. Rhoades, Judge. Suit by Yietor R. Griggs, County Attorney of Hill County, against George W. Glass, clerk of the District Court of the Eighteenth Judicial District, in and for the county of Hill, and another. From an order granting a permanent injunction, defendants appeal. ' Does section 9006 confer upon the state, acting through the attorney general, or upon the attorney general any authority to institute a proceeding under section 9006?

Lentz, Judge. Frank Teubner was convicted of gambling, and appeals from the judgment and order denying his motion for new trial. The testimony of Arthur Higgins to the effect that Dumphy told him that he was going to put Teubner in charge of a game was entirely inadmissible as being pure hearsay. No conspiracy between Teubner and Dumphy had been shown, and therefore the evidence could not have been admitted on that ground.

J, Lynch, Judge. Action by Mary Withers against the Pacific Mutual Life Insurance Company of California. From a judgment for plaintiff ' arid an order denying its motion for a new trial, defendant appeals. There was no evidence of the accidental nature of any injury received by John Withers.

‘Appeal from District Court, Silver Bou> County; J. D. Dwyer, Judge. Action by James M. Baldwin against J. R. Silver. Judgment for plaintiff and defendant appeals. Self-serving declarations are not admissible in evidence. (Curtsing'er v. McGown (Tex. v Civ.), 149 S. W.-303; Seevers v. Cleveland Coal Co., 158 Iowa, 574, Ann. Cas. 1915D, 188, 138 N. W. 793; Fearing v. Kimball, 4 Allen (Mass.), 125, 81 Am.

Matthews, Judge of the Fourteenth District, Presiding. Action by the Security Trust Savings Bank of Charles City, Iowa, against Evert Reser and others. Plaintiff appeals from a judgment of dismissal and from an order refusing to set aside said judgment.

Crum, Judge. Action by the Advanee-Rumely Thresher Company against A. W. Terpening and another. From a judgment for defendants and an order denying its motion for a new trial, the plaintiff appeals.

O’Hern, Judge. , Certiorari by the State, on the relation of the Chicago, Milwaukee & St. Paul Railway Company, against John Gibb, Justice of the Peace in and for Miles City Township, Custer County. From a judgment setting aside a judgment of the justice court, defendant appeals.

Appeals from District Court, Lewis and Clark County; J. M. Clements, Judge. Action by P. H. Campbell against the Oriental Trading Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals-.

M. Clements, Judge. Action by the Montana Meat Company against the Oriental Trading Company. From a judgment for plaintiff and an order denying a new trial, defendant appeals.

C. Hurley, Judge in the Seventh District. Presiding. Proceedings to administer the estate .of Henry Bruhns, deceased, wherein Aline Bruhns filed objections to the administrator’s report and from an order of distribution, Paul E. Bruhns and others appeal. Cause submitted on briefs of Counsel.

<p>Cities and Towns—Floating Indebtedness—Funding Bonds— Statutes—Special Election.</p> <p>Cities and Towns—Floating Indebtedness—Power to Issue Funding Bonds—Submission to Voters not Necessary.</p> <p>1. Under sections 3461 and 3462, Revised Codes, a city may, through its council, issue bonds for the purpose of funding its floating indebtedness, without .submitting the matter to a vote of the taxpayers.</p> <p>Same—Funding Bonds—Power of Legislature.</p> <p>2. The legislature has power to grant cities and towns authority to fund their floating indebtedness.</p> <p>Whether funding existing debts increases municipal indebtedness, see-note in 21 Ann. Cas. 1334.</p>

Dwyer, Judge. Action by C. A. Spaulding and others against Peter D. Lambros and another. From judgment for plaintiffs and an order denying their motion for new trial, defendants appeal. From the rule announced by thisa court and adhered to from 3 Montana down to 49 Montana, it is apparent that one of the vital allegations for a cause of action of the character at bar is the allegation that the amount; claimed has > not been paid, nor has any part thereof been paid.

Action by Edmund B. Blinn and another against the Hutterische Society of Wolf Creek, a corporation, and others. From an order dissolving a temporary injunction, plaintiffs appeal. The appellants were not entitled to an injunction upon the facts. The action is not one of trespass. There is no allegation of any threatened injury to the freehold, or that respondents are insolvent. There is not any showing that the threatened injury cannot be amply compensated in damages.

Dwyer, Judge. Action by C. U. Lewis against P. D. Lambros. From a judgment of nonsuit, and from an order denying Ms motion for new trial, plaintiff appeals.

<p>Ejectment — Boundaries — Parol Agreements — Statute of Frauds—Public Lands—Ratification—Offer of Proof.</p> <p>Boundaries—Parol Agreements—Validity—Statute of Frauds.</p> <p>1. An oral agreement between coterminous owners establishing a boundary line between their respective lands is not within the statute of frauds as conveying the fee, 'where at the time of entering into it they were in doubt or ignorance of the true line and a real controversy as to it existed between them.</p> <p>Same—Public Lands—Parol Agreement Between Entryman Before Patent-—Effect.</p> <p>2. An agreement of the nature of the above between an entiryman upon public lands before patent and an adjoining owner was binding upon the former and those claiming under him.</p> <p>Same—Offer of Proof—Improper Rejection.</p> <p>3. An offer of proof, in an action in ejectment, tending to show not only a parol agreement fixing a boundary line between an entryman before patent and -an adjoining owner, but also ratification thereof by the entryman’s successor in interest and defendant after final proof and both before and after patent, held to have been improperly rejected.</p> <p>On effect of compromise agreement locating division line at place known not to be the true boundary, see note in 10 L. R. A. (n. s.) 610.</p> <p>Practical location of boundaries by agreement of parties, see note in 110 Am. St. Rep. 682.</p>

A Taylor, Judge. Janet Smith was convicted of sedition, and from tbe judgment of. conviction and from an order denying a motion for new trial, she appeals. The language charged in the information is insufficient in itself to constitute the crime of sedition; it contains nothing in explanation of the utterances alleged to have been made.

Appeal from District Court, Yellowstone County; Charles A. Taylor, Judge. Action by George W. Williams -against J. R. Thomas. Judgment for plaintiff. Defendant appeals from it and an order refusing him a new trial.

'Appeal from District Court, Silver Bow County; J. J. Lynch, Judge. James Colbert was convicted of murder in the second degree, and from the judgment and an order denying his motion for new trial he appeals.

<p>Tort—Change of Venue—Joinder of Causes of Action—Effect on Right to Change — Pleadings — Liberal Construction — Inferences.</p> <p>Tort—Change of Venue—Joinder of Causes of Action—Effect on Eight to Change.</p> <p>1. Where the complaint in an action in tort set- forth two causes of action, one of which was properly triable in the county in which it was commenced, defendants’ right to a change of venue as to the other was not abridged by plaintiffs’ joining the two.</p> <p>Same—When Venue cannot be Changed.</p> <p>2. If an action in tort was properly brought in the county in which it was committed, the .venue cannot be changed, over plaintiff’s objection, upon the ground of defendant’s residence in an adjoining county where he was served with summons.</p> <p>Pleadings—Liberal Construction—Inferences.</p> <p>3. It is the policy of the Practice Act that the most liberal rules of construction shall be applied to pleadings in civil actions; hence whatever is necessarily implied in, or reasonably to be inferred from, an allegation, is to be taken as directly averred.</p> <p>Same-—-Complaint—Sufficiency—Inferences.</p> <p>4. Seld, under the above rule (paragraph 3), that the complaint alleging that plaintiffs were engaged in business in M. county, breeding, raising, etc., sheep, “and for that purpose and to that end” had leased certain lands, describing them by government subdivisions, all in a certain township and range, and that defendants wrongfully grazed their sheep affeeted with contagious and infectious disease, on and over “the said lands of plaintiffs,” etc., was sufficient to show that the lands were in M. county and that the wrong was committed therein.</p>

Crum, Judge. Action by G. M. Babcock and Ida Babcock against Charles A. Engel. From a judgment dismissing the complaint, plaintiffs appeal. We contend that the defendant failed to prove that he was even drunk; but assuming that he was intoxicated to some extent, his condition was not such as to authorize him to rescind his solemn, acknowledged contract. Intoxication must be so deep and excessive as to deprive one of his understanding.

Taylor, Judge. Action by F. B. Beadle against E. E. Harrison. From a judgment for defendant and an order denying his motion for a new trial, plaintiff appeals. The defendant in an action of this hind cannot testify to the fact that he has told all the facts to the attorney, or that he has not concealed anything, nor can he testify to the fact that he believed the defendant guilty. These are matters entirely for the jury to determine upon the facts and circumstances.

B. Leslie, Judge. Action by the Emerson-Brantingham Implement Company against Nellie Anderson. Judgment for defendant and plaintiff appeals.

Proceeding by P. F. Morgan under the Workmen’s Compensation Act to obtain compensation as a dependent for the death of a brother, Edward Morgan, opposed by the Butte Central Mining & Milling Company, the employer, and the Guardian Casualty & Guaranty Company, the insurer. An order denying compensation was reversed by the district court, and the employer and insurer appeal.

J. Lynch, Judge. Action by Olive Loudon and Rachael Loudon, a minor, by Olive Loudon, her guardian ad litem, against Drs. M. J. Scott and Frederick J. Langdon. From a judgment for defendants, and an order denying a new trial, plaintiffs appeal.

B. Rhoades, Judge. George Francis was convicted of grand larceny and appeals from tbe judgment. This is a case where the state relied absolutely upon circumstantial evidence. Tbe eye of no witness saw tbe taking nor did human lip testify to any actual taking.

B. Winston, Judge. Action by Andy Mandoli against the National Council of Knights and Ladies of Security. From a judgment for plaintiff, and an order denying a motion for new trial, defendant appeals. Whether it is proper to grant a nonsuit or direct a verdict in an action on a life policy is governed by the rules applicable to the trial of civil actions in general.

Original application for writ of supervisory control to the District Court of the Eighteenth Judicial District, and F. E. Carleton, Judge thereof, to annul an order in effect declaring Chapter 175, Laws of 1917, inoperative.

<p>Conversion — Action by Chattel Mortgagee — Allegation of Ownership—C omplaint—Insufficiency.</p> <p>Conversion—Action by Chattel Mortgagee—Allegation of Ownership— Complaint—Insufficiency.</p> <p>1. Seld, that the complaint in an action to recover possession of chattels, covered by mortgage, alleged to have been unlawfully seized and wrongfully detained by defendants, was insufficient in the absence of an averment that plaintiff mortgagee was the owner and holder of the notes secured by the mortgage at the date of conversion.</p>

<p>Original application for Writ of Certiorari.</p>

<p> Appeal from, District Court, Valley County; John Hurly, Judge. </p>

<p>Appeal from District Court, Hill County; TU. B. Bhoades, Judge.</p>

<p> Appeals from District Court, Yellowstone County; A. C. Spencer, Judge. </p>

Original application for Writ of Mandate to compel respondent to place the name of relator and others upon the official ballot to be used at the election to be held November 2, 1920.

Original application for Writ of Mandamus to compel respondent to place the name of relator and others upon the official ballot to be used at the election to be held November 2, 1920.