Volume 63 — Montana Reports

<p> Intoxicating Liquors—Nuismces—Jurisdiction—Statutes and Statutory Construction—Supplemental Acts—Repeal by Implication—Presumptions. </p> <p>Intoxicating Liquors—Nuisanees—Jurisdiction in District Court.</p> <p>1. In a prosecution for maintaining a common nuisance under section 19, Chapter 9, Extraordinary Session of 1921, made supplemental to and a part of the laws relating to intoxicating liquors, held that the district court had original jurisdiction, under section 37 of the Enforcement Act (Chap. 143, Laws 1917), conferring upon the district court original jurisdiction for violations of liquor laws and continued in force by Chapter 9, notwithstanding the offense is made a misdemeanor by seetion 19 thereof, punishable by a fine not exceeding $500 and imprisoment in the county jail for not exceeding six months, and therefore otherwise triable in a justice court under seetion 11630, Revised Codes of 1921.</p> <p>1. Effect of disobedience of rule excluding witness from courtroom during trial, see note in 9 Ann. Cas. 368.</p> <p>Statutory Construction—Legislative Intent.</p> <p>2. Where the legislative intent is plain that two or more statutes, penal in character, on the same subject, shall be construed together, their construction in conformity with such intent does not militate against the rule that penal statutes must be strictly construed.</p> <p>Same—Uncertainty.</p> <p>3. Every presumption is in favor of legislative Aets, and courts must so construe them as to make them operative and not hold them void for uncertainty unless it is impossible to ascertain the legislative intent or purpose.</p> <p>Same—Statutes in Pari Materia Construed as One Law.</p> <p>4. In the construction of a statute, or in the interpretation of any of its provisions, all Acts relating to the same subject or having the same general purpose must be read in connection with it, as together constituting one law.</p> <p>Same—“Supplemental” Act—Definition.</p> <p>5. A supplemental Act is one designed to improve an existing statute by adding something thereto without changing the original text, and includes every species of amendatory legislation which goes to complete a legislative scheme.</p> <p>Same—Statutes—Testing Validity—Rule.</p> <p>6. In testing the validity of a statute subject to two constructions, one of which will uphold its validity while the other will condemn it, the former will be adopted if it can be done without violence to the fair meaning of the words employed, every reasonable doubt favoring its validity being indulged.</p> <p>Same—Legislative Intent—How Arrived at.</p> <p>7. In construing a statute courts must ascertain and carry into effect the intention of the legislature, if possible, such intention to be gathered from the terms of the Act, considered in the light of the surrounding circumstances, its words being given such a meaning as will best accord with the subject of the enactment.</p> <p>Statutes—Repeal by Implication—Presumptions.</p> <p>8. Repeals by implication are not favored, and the presumption will not be indulged that by a subsequent enactment the legislature intended to repeal former laws upon the subject not mentioned therein, especially where the existing law is directly referred to in the title and repealing clause, thus showing that it was under consideration when it was enacted.</p>

<p>Pleading and Practice—Defenses—Another Action Pending— —Striking Defense—When Irdproper.</p> <p>Pleading and Practice—Defenses—Another Action Pending—Motion to Strike—Demurrer.</p> <p>1. Where the plea of another action pending is open to the objection of being sham, irrelevant and redundant, it may, under section 9166, Revised Codes of 1921, be stricken on motion; where, however, the sufficiency of the plea is sought to be tested, the proper practice is to demur.</p> <p>Same—Another Action Pending—Overruling of Demurrer—Duty of Demurrant.</p> <p>2. If the sufficiency of the plea of another action pending is sustained on demurrer, the demurrant must put in issue the allegations of the special defense, or allege facts from which it would appear prima facie that the former action has been finally determined; otherwise the defense will be deemed admitted, resulting in an abatement of the action.</p> <p>Same—Another Action Pending—Defense Improperly Stricken, When.</p> <p>3. Under section 9821, Revised Codes of 1921, providing that an action is deemed pending from its commencement until its final determination on appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied, held, that the court erred in striking the defense of another action pending between the same parties upon the same cause, where defendant alleged that the judgment in that action in his favor had not been satisfied, and it appearing from the record that the time for appealing had not passed.</p>

H. Ewing, Judge. Action by tbe MacGinniss Realty Company against Elias K. Hinderager and others. Judgment for defendants, and plaintiff appeals. After the purchase of the Kester Mid Canyon Ranch by John MacGinniss, its agent, the plaintiff, MacGinniss Realty Company, was the real, true and equitable owner thereof; and the judicial sale purchaser, its assignee, and the defendant took their muniments of interest subject to the prior equity of the plaintiff.

Appeals from District Court, Cascade County; H. H. Ewing, Judge. Action by E. 3L Hinderager against John MacGinniss. Judgment for plaintiff, from which, as well as the order denying a new trial, defendant appeals. The judicial sale through which the plaintiff claims was of no effect. The court found that the property was purchased by Emerson-Brantingham Implement Company for the sum of $836.75. The land lay in three separate parcels.

Appeals from District Court, Big Horn County; A. C. Spencer, Judge. Action by Walter 0. Lee against the Stockmen’s National Bank of Hardin and another. From a judgment for defendants and from an order denying his motion for a new trial, plaintiff appeals. The grounds for the motion for nonsuit are to the effect that appellant had the means of ascertaining the falsity of respondents’ misrepresentations, and not having used such means was not in position to complain.

Tattan, Judge. Action by tbe Bogers-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 denying plaintiff a materialman’s lien for materials furnished, and from a personal judgment against defendant Welch, plaintiff appeals.

H.„ Goodman, Judge. In the Matter of the application of Adnah M. Kimpton and others for the extension of the boundaries of Crow Creek Irrigation District and for the inclusion of their own and other lands within the district. From an order granting the application, objectors C. E. Adams and others appeal.

Appeals from District Cowrt, Blaine County; Chas. A. Bose, Judge. Harry H. Asher was convicted of burglary, and, from the judgment of conviction and from an order overruling a motion for dismissal of the information and discharge of the defendant, he appeals. The verdict is a nullity and defendant was entitled to his discharge.

'Appeals from, District Court, Beaverhead County; Joseph C. Smith, Judge. Action by A. S. McDonald and another against Lewis E. McNinch and another. From the judgment for plaintiffs and from an order denying a new trial, the defendants appeal.

<p> Appeal from District Court, Silver Boto County; John V. Dwyer, Judge. </p> <p>Action in partition by James A. Murray against Mattie F. Curtis. From a decree of partition by metes and bounds, plaintiff appeals.</p>

Appeals from District Cou-rt, Fergus County; Jack Briscoe, Judge. Original application by the State of Montana, on the relation of Roy A. Hopkins, against John H. Stephens, Sheriff of Fergus County, for writ of mandamus to compel him to execute and deliver a sheriff’s deed. From a judgment dismissing the proceeding, and from an order denying a new trial, relator appeals.

Appeals from District Court, Flathead County; C. W. Pomeroy, Judge. Joseph W. Richardson was convicted of rape, and he appeals from the judgment of conviction and from an order refusing a new trial.

Appeals from District Court, Yellowstone County; A. C. Spencer,'Judge. Separate Actions by John E. Clawson, individually and as administrator of tbe estate of Harold Clawson, deceased, against John H. Sebroeder.

Appeals from District Court, Silver Bow County, Edwin M. Lamb, Judge. Action by William Mitchell against the Northern Pacific Railroad Company and the Director-General of Railroads. From the judgment for plaintiff and an order denying a motion for a new trial, defendants appeal.

Appeals from District Court, Meagher County; E. H. Goodman, Judge. Action by Mark Hunt against tbe White Sulphur Springs & Yellowstone Park Bailway Company. Judgment for plaintiff, and defendant appeals from it and from an order denying a new trial.