Volume 7 — Montana Reports

<p> Appeal from District Court, Yellowstone County. </p>

The alleged promise of plaintiff was upon a contract for the sale of goods for the price of over two hundred dollars. The contract was not in writing, no part of the purchase money was paid, and no part of the goods was received or accepted. Sec. 167 fifth division Rev. Stat. Mont. (Statute of Frauds). The complaint alleged that respondent sold and transferred the goods to Osborne; but this is not an allegation that Osborne accepted or received them. Tenny v. Doten, 11 Pac.

The facts appear in the opinion. The answer of the defendant sets up inconsistent defenses. While a defendant is not to he confined to a single defense, and may set up as many defenses as he has got to a cause of action, they must be consistent, the one with the other. Derby v. Gallup, 5 Minn. 119; Conway v. Wharton, 13 Minn. 158; Cook v. Finch, 19 Minn. 407; Adams v. Trigg, 37 Mo. 141. The defendant fails to plead facts sufficient to constitute an estoppel.

In this case a written statement of the facts was agreed upon by the attorneys for the parties. This statement had the effect of a special verdict or finding of the facts. Sec. 270, div. 1, Rev. Stats. Mont.. If the judgment is inconsistent with said statement it should be reversed. Chumasero v. Vial, 3 Mont. 376; Lar gey vSedman, 3 Mont. 472.

The declaratory statement is void because the oath of the locator is not made upon his own knowledge. Without a record to give notice, there is no location. Butcher v. Ilauswirth, 4 Mont. 299, and cases cited; Russell v. Hoyt, 4 Mont. 412, particularly p. 421. Our statutes in relation to verification of pleadings always provide when it can be done by an agent or attorney; and statutes which contemplate such a way of proceeding generally provide therefor.

<p> Appeal from District Court, Deer Lodge County. </p> <p>The opinion states the case.</p>

The court should have permitted defendant to interrogate each and all of the members of the grand jury as to whether they had formed an unqualified opinion of the defendant, and as to whether they had any bias or prejudice against the defendant. State v. Gillick, 7 Iowa, 287; Wade, C. J., monograph on authority of grand jury, in 4 Crim. Law Magazine; People v. Manahan, 32 Cal. 68; People v. Jewett, 3 Wend. 314; 1 Wharton’s Am. Crim. Law, 299; 1 Archbold’s Crim. Pr. &.

The patent to the Smokehouse lead or lode claim reserves or excepts from its grant the streets and alleys of the city of Butte, The patent to the mine of plaintiff is no evidence.of title as against the claim of this defendant. The city could not have filed an adverse claim in the land-office, for it has no such title or claim as would be recognized there. See Rev. Stats. U. S., sec. 2326.

A corporation can act only through agents; and (save that of a mere servant to a co-servant) is liable for their negligence, whatever may be the grade of their employment. It is a master’s duty to ascertain the existence of concealed danger, and to warn a servant who is ignorant of it. A servant does not assume the risk of such danger. A master's failure to provide proper rules for the protection of servants against concealed danger is a neglect of duty.

The intention of the legislature in passing the general law of 1885 was to merge all prior statutes, special as well as general, on the same subject, in the later law.

The real intention of the parties, derived from the language used in the contract, together with the facts gathered from the condition of the contracting parties at the time of its execution, and the subject-matter of the contract, are first to be ascertained, and if the contract can then be construed so as not to be repugnant to law, or public policy as indicated thereby, the contract is valid, and should be enforced by the court at the instance of the injured party.

The judgment is a nullity. There was no service of process upon the defendant Clark, nor any appearance by him. Service upon corporations, joint-stock companies, minors, and persons of unsound mind may be made upon officers, guardians, or agents; in all other cases upon the defendant personally. Rev. Stats. Mont., sec. 72, p. 52; Freeman, on Judgments, secs. 116-125; Hahn v. Kelly, 34 Cal. 391

<p>Defective transcript prevents consideration of appeal. — The transcript fails to comply with rule 5 of the supreme court, which requires it to contain an alphabetical index of its contents, specifying the page of each separate paper, order, or proceeding, — also with rule 7, requiring that each paper shall be separately inserted. For these defects ir the transcript the appeal is dismissed with costs.</p>

The statute provides what shall be done in order to make the contingent liability of any indorser absolute. Rev. Stats. 1879, p. 424, sec. 104.

<p>Appeal from District Court, Silver Bow County.</p>

Can the plaintiff select certain portions of an order and swear that the debt was due in September, 1884, and in December, 1886, file a supplemental complaint which shows that the debt was not due until the last named date, if due at all, and yet prevail in this action?

The disobedience of the order for alimony is within the definition of contempt, and the punishment was striking defendant’s answer from files. Sec. 566, subd. 5, div. 1, Rev. Stats. Mont. The punishment of contempt under our statutes can only be by fine and imprisonment, or both. Secs. 573, 574, 578, div. 1, Rev. Stats. Mont.; Galland v. Galland, 44 Cal. 475.

An appeal from an order refusing a new trial brings up the whole record, and error can be assigned in such case upon the findings and judgment roll, and the court has a clear right to reverse the order. See Hanscom v. Tower,-17 Cal. 518; Walden v. Murdoch, 23 Cal. 540; 83 Am. Dec. 135.

It is a fundamental principle that a judgment is conclusive .'of every fact necessary to uphold it. Freeman on Judgments, sec. 331. The recitals in a judgment are prima facie evidence of the facts stated. Hayne on New Trial and Appeal, sec. 231, and cases cited; Leese v. Clark, 28 Cal. 27-36. The court did not err in denying appellants’ motion to have execution issue against the other defendants first.

Plaintiff is entitled to ten per cent interest upon the value of the bullion, since it was wrongfully taken, as legitimate and proximate damages resulting from the trespass. The value was three thousand two hundred dollars, and the property was taken on the thirty-first day of May, A. D. 1879. See Wheljield v. Wheljield, 40 Miss. 352; 47 Am. Dec. 350; Jones on Replevin, p. 298, sec. 343, and authorities cited in note 3.

. The words “ feloniously, willfully, purposely, premeditatedly, and of his malice aforethought,” do not of themselves describe murder, unless they are applied to acts which make up that crime. Malice arises from an evil purpose; negligence from a failure of purpose. Malice is a defect of the heart, and negligence a defect of the intellect. 1 Wharton’s Criminal Law, see. 126; Territory v. Dooley, 4 Mont. 295.

The contract of an infant for the sale of lands, when executed by both parties to the transaction, is voidable on the part of the infant upon reaching his majority, and is not void. Lessee of Tucker & Thompson v. More-land, 10 Pet. 57; Eagle Fire Ins. Co. v. Lent, 1 Edw. Ch. 301; 2 Kent’s Com. 31.

The demurrer to defendant’s answer should have been sustained, and the matter demurred to constitutes the whole defense. The express and only valid condition of this bail bond was that Gregg should appear and answer a charge of obtaining money under false pretenses from one Horne.

A new trial should be granted where a verdict is against the evidence. Newson v. Lycon, 20 Am. Dee. 156; Kinne v. Kinne, 21 Am. Dec. 736; Orr v. Haslcell, 2 Mont. 229. A witness who willfully contradicts himself is unworthy of belief. Crabtree v. Hagenbaugh, 79 Am. Dec. 324. The court erred in refusing to grant defendant’s motion for judgment on the' pleadings. The plaintiff’s reply to the new matter of defendant’s answer is literal and conjunctive, and not specific.

This is an action of conversion. The complaint contains no ad damnum clause. The allegation of the value of the property is by way of recital, and any objection to any evidence as to damages, made by defendant on the trial, is sufficient for reversal of this cause. See 2 Es-tee’s Pleadings, 2d ed., p. 70, and authorities there cited as to nature of action. The sale, regardless of the question of good faith, is void under sections 169 and 170 of the statute of frauds.

We submit the following points and authorities to show that our homestead exemption law is derived from the statute of Minnesota, and not from that of California. The homestead exemption law of Minnesota, passed in 1858, is found in the revision of those laws of 1866, at page 498. No homestead exemption law was enacted in Montana until January 7, 1869. See Laws of Fifth Session 1868-69, pp. 77-79.

The indictment cannot support a conviction, for the reason that the intent is not sufficiently alleged. People v. Urias, 12 Cal. 325; State v. Harris, 34 Mo. 347; State v. Anthony, 13 Smedes & M. 253; Morgan v. State, 13 Smedes & M. 343; Singer v. State, 11 Ohio, 69; 1 Arch-bold’s Crim.

Matters of substance which are necessary to be alleged in a complaint cannot be left out and the defects supplied by reference to an exhibit attached to and made part of the complaint. 2 Estee’s Pleading, 3d ed., sec. 3140; Johnson v. Home Ins. Co., 6 Pac. Rep. 729 (Los Angeles v. Signoret, 50 Cal. 298, can be distinguished); Laramie v. Wells, 20 Ohio St. 13; Watkins v. Brunt, 53 Ind. 208; Cairo and Fulton R. R. Co. v. Parks, 32 Ark. 131; Bowling v. McFarland, 38 Mo. 463.

Defendants in the court below, in support of their demurrer, cited Carr hart y. Montana Mineral L. & M. Co., 1 Mont. 245, and the court, following that case, sustains the demurrer. That case was decided on a different statute from the one in force at the time the case at bar was instituted.

“ The proceedings prescribed by law in civil cases in respect to the impaneling of jurors, .... and the rendering of their verdict, shall be had upon trials of indictments and prosecutions for criminal offenses.” Rev. Stats. Mont., p. 327, secs. 292, 293. In this case, upon the trial, the jury were permitted to take with them to the jury-room an account-book.

<p>Facts held not to constitute a wager or contempt of court. —In the proceeding at bar, against one Murray and one Murphy for an alleged contempt of the supreme court, the facts were as follows: Certain cases known as the Smokehouse cases had been decided favorably to Murray, wbo was a party thereto, and certain other actions in which he was also interested, involving the same questions, were pending before the court. Murphy offered to bet Murray that the supreme court would reverse their former decisions, whereupon Murray, without the knowledge of Murphy, gave another person the money to make the bet, and instructed him to have Murphy make the bet as his agent. The bet was accordingly made, Murray being the actual owner of all the money wagered. Held, that the facts aforesaid constituted no genuine wager, and that consequently Murphy was not guilty of a contempt. The court declined to pass upon the question of whether or not the making of a wager upon the decision of a suit pending before a court is a contempt.</p> <p>Facts decided to constitute a contempt of the supreme court. — It further appeared in the cause at bar that, after the procurement of the bogus bet aforesaid, Murray caused a telegram to be printed in a newspaper published at at the city of Helena, in which the supreme court was then in session, that a bet had been made between certain parties in Butte, that owing to the influence of certain persons interested in the cases then pending, the supreme court would reverse their former decisions in the Smokehouse cases. Held, Murray’s conduct was a contempt of court at common law.</p> <p>Testimony of a defendant as to his intent, in a proceeding instituted against him for contempt of court, held not conclusive. — The defendant Murray swore in an affidavit and upon the witness-stand that he had no intention of treating the court with contempt in publishing said telegram: held, that the court is not bound by bis denial, but may inquire into the truth of the matter.</p> <p>Territorial courts are not United States courts. — Held, that the territorial courts are not United States courts, within the meaning of section 725 of the Revised Statutes of the United States, which defines the power of United States courts to punish for contempt; and that said statute does not apply to the territorial courts, even under that‘ provision of the organic act of Montana Territory which declares “ that the constitution and laws of the United States which are not locally inapplicable shall have the same force and effect within the said territory of Montana as elsewhere in the United States."</p> <p>Section566, subdivision 1, division 1, Revised Statutes of Montana [sec. 684, subch 1, div. 1, Comp. Stats. Mont.), relating to contempt of court, construed. — Held, that the conduct of Murray, as hereinbefore described, is within the statute defining contempts of court, and their punishment.</p>

<p>Appeal. — The absolute dismissal of an appeal by the supreme court affirms the judgment of the district court. —In the ease at bar, the appeal had been dismissed for irregularities in the transcript. The order of dismissal was absolute in its terms. The court, however, had intimated that there was time within which to take an appeal properly; but the appellant failed to ask for a modification of the said order at the term at which it was made. Held, that under section 439, division 1, Compiled Statutes of Montana, the dismissal of the appeal was final, and that the judgment of the lower court was affirmed.</p>

A consideration of the case of Robinson v. Elliott, 22 Wall. 513, ought to be decisive of the invalidity of this mortgage. In that case the provisions of the mortgage which were adjudged to render it void were far more favorable to its validity than the provision in this mortgage. In that, it was provided the avails of sales should be reinvested in other goods which should be answerable for the debt.

In the ordinary action of ejectment, the party m possession is presumed to have a valid title until the contrary is proven. Willis v. Wozencraft, 22 Cal. 608; Owen v. Fowler, 24 Cal. 193; Owen v. Morton, 24 Cal. 273; 2 Greenl. Ev., sec. 331. And this presumption of title must be overcome by proof of title in plaintiff, which is good as against the defendant. People v. Leonard, 11 Johns. 504; Sullivan v. Dimmitl, 34 Tex. 114; Kennedy v. Sheer, 3 Watts, 95.

STATEMENT. The record showed that the statement consisted, first, of the pleadings, then a deposition, and seventy pages of testimony, transcribed by the stenographer from his notes, including his entries of exceptions taken.

The language of the chattel-mortgage statute should receive a reasonable, and not a strained, construction, and the intention of the legislature should prevail, if that intention is obvious from the law itself. This rule of construction has been laid down by the legislature. Code Civ. Proc., sec. 613. The word “parties” which is used in the law may mean one or many persons, and this is the definition given by Bouvier of parties to deeds and other legal instruments.

STATEMENT. The pleadings were as follows: — amended complaint. Comes now Winthrop Raymond, the plaintiff above named, and files herein this his amended complaint, and for cause of action against defendants, George Thexton, Sen., and Thomas Deyarmon (hereby dismissing as to George Thexton, as executor, named as co-defendant in the original complaint), alleges: — 1.

By accepting an assignment of the lease, and taking possession of the land thereunder, respondent assumed the payment of the rent reserved in said lease. Rent is a covenant which runs with the land, and binds the assignee- of a lease by privity of estate as absolutely as the lessee was bound before the assignment. Taylor’s .

Plaintiffs’ complaint alleges that the mortgage was duly executed. The oath taken by Conrad was a substantial compliance with the requirements of the statute of 1881. See Acts of 1881, p. 3.

<p> Appeal from District Court, Choteau County. </p>

The lands in the indemnity limit are granted to the company when selected by the company under the direction of the Secretary of the Interior, as absolutely as are the lands within the limits of the grant proper.

<p> Appeal from District Court, Deer Lodge County. </p>

It devolved on plaintiff to show a valid location as required by section 2324, United States Bevised Statutes, and if the boundaries were marked on ground not subject to location, there can be no marking of the boundaries of the claim on the claim as required by law. And plaintiff, having failed to show a valid location of said Fraction lode, under which it claims, the judgment should be reversed.

It is well settled that the defendant in an action cannot move to dissolve an attachment issued in a cause after an appearance, and after the time for answering expires. See Code Civ. Proc., sec. 198, div. 1; Magee v. Fogerty, 6 Mont. 237; Drake on Attachment, sec. 112; Bishop v. Fennerty, 46 Miss. 570; Woodruff y. Sanders, 18 Wis. 171; Blackwood v. Jones, 27 Wis. 498; Fairfield v. Madison- Mfg. Co., 38 Wis. 346; McDonald v. Fist, 60 Mo. 172.

The paper put in evidence is not an agreement; it is merely a declaration on the part of Huntoon that he holds the property in trust for Lloyd, and simply carries out the agreement which Huntoon swears was made between him and Lloyd, namely, that he, Huntoon, was to procure the title to the property in his own name for the use and benefit of Lloyd.

<p>Judgment. —A judgment may be set aside by a court or judge at chambers upon a proper showing.— In the ease at bar, a judgment by default had been taken against a defendant at a term of court. Within five months the defendant made a motion before the judge at chambers under section 116, division 1, Compiled Statutes of Montana, to set aside the default, and filed affidavits and a verified answer to the complaint in the suit, which set up a meritorious defense in support thereof. A counter-affidavit was also filed by plaintiff. The motion was heard, and the default was set aside. Held, that under the statute aforesaid, it lay with the trial judge to pass upon the question of whether or not there was good cause for setting aside the judgment, and also to reconcile the contradictions in the papers used upon the hearing of the motion; and that the order of the trial judge in setting aside the judgment must be upheld. Vantilburg v. Black, 3 Mont. 469, Lowell v. Ames. 6 Mont. 188, and Donnelly v. Clark, 6 Mont. 136, distinguished.</p>

<p> Appeal f-rom District Court, Lewis and Clarke County. </p>

Underwood v. Birdsell, 6 Mont. 142, was the only case cited or relied upon to sustain the judgment on demurrer in the court below. That case does not apply. The plaintiff is a ranchman. Default had been made in the payment of a debt secured by chattel mortgage, executed by Newton to the other defendant, Whitney.

Morrison’s Mining Digest, 253; Johnson v. Elwood, 53 N. Y. 433; Leadville Mining Co. v. Fitzgerald, 4 Mor. Min. Rep. 380; Stevens & Leiter v. Murphy, 4 Mor. Min. Rep. 380. A mere trespasser cannot set up title in a third person. Wells on Replevin, secs. 693-695.

The appellant insists that until there, is a survey and segregation of the land belonging to the railroad com■pany, the control of the same remains in the appellant, and that the title of the whole tracts rests with appellant in trust for the railroad company, subject to be defeated by the failure on the part of said company to comply with the requirements of its charter.

The court erred in giving, of its own motion, instruction No. 9, which concludes as follows: “Threats and previous difficulties are evidence tending to prove malice.” The error consists in this, that it was assumed that threats and previous difficulties had been proven.

The doctrine of United States v. Singer, 15 Wall. Ill, governs. Mr. Justice Field says: “The official bond of parties undoubtedly covers, not merely duties imposed by existing law, but duties belonging to and naturally connected with their office or business imposed by subsequent law.

<p> Appeal from District Court, Lewis and Clarice County. </p>

<p>Appeal to United States Supreme Court. — To obtain a supersedeas on an appeal from a judgment of the supreme court of Montana, the appeal must be taken within sixty days. —At the July term of the court, 1887, the judgment of the district court in this case had been reversed, and a decision rendered in favor of the appellant. Some months later, at a formef day of the present term (January term, 1888), the court on motion of the respondents had made an order fixing the amount of a supersedeas bond, with a view to the case being appealed to the supreme court of the United States. No appeal had ever been taken by respondents. Appellant at a subsequent day moved that the said order be vacated. Held, that as no appeal had been taken within sixty days after the rendition of judgment against respondents, that, under sections 1087 and 1012, Revised Statutes of the United States, no supersedeas could be obtained, and that, therefore, the order aforesaid fixing the amount of such bond was erroneously granted.</p>

■ The judge of said court had no authority or power in vacation to render such judgment, and if he had, costs and attorneys’ fees should not have been allowed in such case. There is no provision of the statute,- article 4, chapter 45, Revised Statutes, page 593, authorizing costs in such cases. The only provision made as to costs is found in sections 894, 897, and 898, pages 594 and 595, which have no application to this case.

The grant to the Northern Pacific company does not convey to the company any mineral lands. Section 3 of the act incorporating the company provides that all mineral lands be and the same are excluded from the operation of the act. 13 U. S. Stats. 364. The exterior boundaries of the grant to the company were determined by locating the general route of the road. Northern Pacific R. R. Co. v. Lilly, 6 Mont. 65.

If the discovery was on the Shannon patented ground, or off of it as patented, but .on it at the date of the location of the Shannon, the location was void; and if owners of the Shannon were allowed to patent the surface so as to include the discovery of the Comanche, then the location and ownership of the same by plaintiffs was lost, and they could not recover in this action.

The court erred in sustaining the demurrer to the complaint. It was urged by defendant that Sheldon had no claim against Custer County, because the judge who tried the case had not certified under his hand, authenticated by the seal of the court, the amount of the costs, pursuant to section 410, page 479, Compiled Statutes of Montana. The district attorney approved the same, but not the judge.

It is true that the notice of Lebcher was not in writing. The statute does not require it to be. Rev. Stats. Mont., sec. 821, p. 581. Whiteside appears to have taken every step required by the statute to entitle him to a lien. All the matters necessary to acquire a lien having been shown, and they having been properly alleged and proved, and the court having, upon a trial, found the facts and entered judgment, no reason appears why the court should have granted a new trial.

It appears that within the time limited, motion for a new trial was made, together with an application under section 114 (sec. 116, Comp. Stats. 1887) of the Civil Code, for the vacation of the judgment. This application is based upon the affidavits of the defendant and his counsel, together with the certificate of the defendant's physician, from which it appears that the defendant was by reason of ill health unable to present at the trial of the case.

<p> Appeal from District Court, Meagher County. </p>

' Appeal from District Court, Lewis and Clarice County. This is an action brought by the city of Helena for an alleged violation of section 2 of a pretended ordinance. There is nothing commanded or forbidden in this section, and it is the only section referred to in the complaint. The ordinance, taken as a whole, is unreasonable. Section 1 implicitly commands that cabs shall stand in certain places. There is no provision whereby they may pursue their legitimate business.

It is error for the court to charge that the use of a deadly weapon, not in necessary self-defense, whereby death ensues, will constitute murder. Donnellan v. Commonwealth, 7 Bush, 676. Also, to charge that if homicide be committed by a deadly weapon, in the previous possession of the accused, the law implies malice. Smith v. Commonwealth, 1 Duvall, 224. And the error is not cured by giving a correct instruction at the request of either party.

The judgment entered by the clerk in vacation was invalid, the statute authorizing it being unconstitutional. Secs. 1851, 1907, U. S. Rev. Stats.; Attorney-General v. McDonald, 3 Wis. 705-707; Gough v. Dorsey, 27 Wis. 119-131; Ferris v. Higley, 20 Wall. 375, 384-385; Mayberry v. Kelly, 1 Kan. 116; People v. Dukell, 1 Idaho, 44; 2lore v. Kowbly, 1 Idaho, 55; Dunphy v. Kleimschniidt, 11 Wall. 610; Thorp v. Woolman, 1 Mont. 16.

Appeal 'from District Court, Silver Bow County. The attachment created a lien upon all of the ground levied upon thereby, and a subsequent sale under the execution and the deed to which appellant was and is entitled from the sheriff will relate back to the date of the levy of the attachment, and should be considered as though bearing that date. Drake on Attachments, 5th ed., secs. 224, 225; Bagley v. Ward, 37 Cal. 121-131; Porter v. Pico, 55 Cal. 165-174.

Appellant contends that the defendant, George A. Colter, had an estate by marital right in the property upon which the lien would attach, and to that extent the appellant was entitled to a foreclosure of the lien.

The complaint in this action does not show upon its face that the cause of action therein stated was or is barred by the statute of limitations of this territory. Hence a demurrer will not lie. Comp. Stats., p. 81, secs. 87,88. The bar of the statute must clearly appear on the face of the complaint. Smith v. Hall, 19 Cal. 85; Smith v. Richmond, 19 Cal. 477; Ord v. De la Guerra, 18 Cal. 67; Sands v. St. John, 36 Barb.'628.

Section 2323 of the United Statés Revised Statutes is to be interpreted: it must be construed in connection with section 2320. To hold the claimant’s tunnel rights in abeyance till discovery is to grant him no rights at all.

We do not think it would be a reasonable construction of the statute to say that the sheriff .is to have only eighty cents per day for the whole number of prisoners, when the number exceeds five. If that construction is ■to be given to the statute, the sheriff would receive less compensation for six prisoners than for five; in the first place receiving $4.80, and in the second $5.

” See section 1889, Compiled Statutes, page 29. July 30, 1886, Congress passed an act, recited on page 31, Compiled Laws of Montana Territory, in which is enumerated certain limitations of the power of territorial legislation, among which there is no limitation in regard to the creation of corporations for “industrial pursuits,” or in aid of the same.

The answer admits the due execution of the note and its non-payment, since a mere denial of indebtedness, even if well pleaded, raises no issue. Power v. Gum, 6 Mont. 5; Higgins v. Germaine, 1 Mont. 230; Wells v. McPiJce, 21 Cal. 216. The pretended denial of indebtedness, even if material, is bad for two reasons: it is in the conjunctive, and follows the language of the complaint. Doll v. Good, 38 Cal. 287; Fish v. Redington, 31 Cal. 186.

Is the license-lien law (Rev. Stats., p. 579, sec. 81G) valid and constitutional? Our statute does not go to the extent of a forfeiture, but only to that of a lien, for a specified amount. Such lien upon property “ held and used ” in the licensed business is good. Sears v. Cottrell, 5 Mich. 251; Sheldon v. Van Buskirk, 2 N. Y. 473-478; Dungan’s Appeal, 68 Pa. St. 204; 8 Am. Rep. 169; Cooley’s Const. Law, 479, 480; Bennett v. Hunter, 9 Wall. 326.

The judgment appealed from is void. The court by which it was rendered did not have jurisdiction of the subject-matter of the action. The jurisdiction of courts, both appellate and original, shall be as limited by law. (Rev. Stats. U. S., tit. 23; c. 1, secs. 1866, 1907, pp. 20, 25, Rev. Stats.