Volume 9 — Montana Reports

<p>Appeal from, Second Judicial District, Deer Lodge County.</p> <p>The defendant was tried before De Wolfe, J.</p>

<p> Appeal from, First Judicial District, Beaverhead County. </p> <p>The defendant was tried before McConnell, C„ J.</p>

The defendant was tried before De Wolfe, J., without a jury. The Territory appeals from an order sustaining the plea of a former conviction. The defendant was indicted for an assault with a deadly weapon. He plead in bar to the indictment a conviction for exhibiting a deadly weapon in a rude, or angry, or threatening manner. The indictment is for felony. The plea is of a conviction for a misdemeanor in the court of a justice of the peace.

<p>'Homicide — Continuance — Character. — There is no abuse of discretion in refusing a motion for a continuance upon the ground of absent witnesses, whose testimony was required for the purpose of proving that in 1844 the defendant was afflicted with disease which sometimes produced mental trouble; that from 1861 to 1864 he was in the military service of the United States, and was wounded; and that in 1863 and 1864 his reputation for peace and quietness in the community in which he then lived was good.</p> <p>Pkactioe — Challenge to juror. — Where a challenge by the Territory to a juror was improperly sustained, but it appeared that “ a jury of good and lawful men was sworn to try the case.” Held, that the defendant was not injured by the exclusion of the juror, and such exclusion was no ground for a new trial.</p> <p>Homicide — Threats against the deceased. — where a witness testified as to threats made by the defendant against the deceased two months before the shooting, which were objected to as being too remote; held, that the mere lapse of time does not exclude the evidence of threats which have a direct relation to the case, as no rule of limitation runs against evidence as to malice in cases of homicide.</p> <p>Same — Insanity—JSvidenae. — Where it appeared that certain witnesses who testified to the sanity or insanity of the defendant were laymen, and gave as a reason for their opinion that they were well acquainted with the defendant, and had observed his conduct during the period in regard to which they testified. Held, that the testimony was competent.</p> <p>Practice — Contents of record. — Where the record contains no testimony to guide the court in determining the propriety of an instruction, which is correct in the abstract, no error will be presumed.</p> <p>Biíiees. —The failure of attorneys to file briefs on an appeal from a conviction of murder in the first degree, criticised and disapproved.</p>

The defendant was tried before De Wolfe, J. The court erred in the selection of jurors in this cause in not permitting counsel for the defendant to ask juror Batterton “ whether he had any knowledge of the feuds existing for two or three years past between the Dooley and Milroy families,” for the purpose of aiding them in an intelligent exercise of the right of peremptory challenge.

The defendant was tried before De Wolee, J. Statement of facts, prepared by the judge delivering the opinion. The defendant was duly indicted for the murder of one John L. Carlson, at Anaconda. He was tried and convicted of murder in the first degree, and is now under sentence of death. A motion for a new trial was made and denied. The defendant appeals from the judgment, and from the order denying a new trial.

The defendant was tried before McCoNNELL, C. J. A motion for a new trial was refused by Blake, C. J. The court erred in refusing to permit counsel for the defendant to inquire of the juror, Hopps, and other jurors, as to the extent of the opinion he and they had formed, and the amount of evidence it would require to override such an opinion.

The defendant was tried before De Wolfe, J., who sustained the constitutionality of the statute under which the defendant was indicted. The law under which the defendant was indicted, tried, and sentenced is unconstitutional and therefore void.

<p>Trial Practice — Burden of proof. — where defendants’ answer admits the contribution by plaintiffs of the aggregate sum as alleged in the complaint, but avers the expenditure of a greater sum, the excess being paid by defendants, which is denied in the replication, plaintiffs were not bound to introduce any evidence upon this point until defendants had produced theirs.</p> <p>Same — Testimony.—The testimony of a witness will not be stricken out because he testifies to the best of his recollection; and the weight to be given it is a matter for the jury.</p> <p>Instruction — Sarmless ei-rnr.— Where an instruction, standing alone, is erroneous, but when in connection with other instructions the law is correctly stated, the error is harmless.</p> <p>Same. —It is not error for the court to refuse an instruction requested by defendants which is based upon a different theory from that contained in their answer.</p> <p>Evidence — Verdict.—Whenever there is any evidence to support the verdict or findings of the court, and there is no manifest error, neither will be interfered with.</p> <p>Specific Performance — Reformation of contract. — Defendants had agreed with plaintiffs to relocate a disputed mining claim, for the purpose of defeating a suit by the prior claimant affecting the titles of plaintiffs to certain lots, the expenses incident thereto to be shared proportionately, and upon a successful termination of the suit each lot owner to receive a conveyance of his share of the disputed and relocated claims. Money was collected and expended to the knowledge of the defendants, they receiving a part of it, and asserting that they did so for the lot owners. The attorney for the defendants prepared the contract, and it was read over to one of the defendants and signed by him after one of the lot owners assented to its correctness, and afterwards signed by the rest of the defendants. In an action for specific performance the defendants pleaded a mistake discovered two years prior, but which they had never before claimed, and which they did not attempt to account for on the trial. Held, that the contract would not be reformed on the ground of mistake.</p>

<p> Appeal from First Judicial District, Lewis and Clarice County. </p> <p>The action was tried before Blake, C. J.</p>

<p>Appeal from, First Judicial District, Lewis and Clarks County,</p> <p>The action was tried before Wade, C. J. A motion for a new trial was refused by Blake, C. J. Motion by plaintiff to dismiss the appeal.</p>

<p>Pbaotioe on Appeal — Motion for new trial. — An order denying a motion for a new trial will not be considered on appeal when the statement has not been certified to by the trial judge as having been allowed.</p> <p>Same — Notice of appeal. — An order denying a motion for a new trial ia an appeal-able order, and will not be considered on appeal where the notice fails to designate such order as the subject of review.</p> <p>UniEtis — Error in judgment roll. — When no brief is filed by appellant calling attention to any error in the judgment roll, the court will presume that there is none.</p>

The defendant was tried before McConnell, C. J. The court erred in refusing to give the instructions in the exact language, as requested by defendant, when such instrue-tions correctly state the law.

The cause was tried before Galbraith, J., at the December term, 1887. There was a general verdict and special findings submitted to the jury, and the findings were for the United States. A decree was drawn in accordance therewith, canceling the patent to the Hesperus lode. The plaintiff appeals from an order of De Wolfe, J., at the May term, 1888, granting a new trial. The granting or refusing of a new trial is a matter in the discretion of the trial judge.

<p>Constitutional Law — Criminal costs. — Section 463, third division, Compiled Statutes, creating a lien upon the real estate and mining claims of any person for the payment of any judgment for fine or costs, which may he imposed upon him for a criminal offense, such lien to take effect from the time of his arrest, is not unconstitutional, and does not encumber his property without due process of law.</p> <p>Judgment — Foreclosure of lien. — Where the defendant in snch case conveys the property after arrest and before the judgment is docketed, the proper remedy for the enforcement of the judgment is an action against the defendant and grantee to foreclose the lien.</p>

A motion to open tbe default was denied by Liddell, J. The matter of setting aside or refusing to set aside a default rests much in the discretion of the court below; yet the discretion is not a mental discretion to be exercised ex gratia, but is a legal discretion, to be exercised in conformity with law.

The cause was tried before Liddell, J., without a jury. STATEMENT OP THE PACTS. The plaintiff Williston sued the defendants as copartners on a promissory note for $3,000, which the complaint alleges the defendants executed on the fifteenth day of January, 1887, payable to the order of the Williston-Camp Company, a corporation, one day after date, with one per cent interest per month, and attorney’s fees if collected by suit. The plaintiff sues as the assignee of the note.

<p>Assumpsit — Nonsuit.—Where the plaintiffs sue for work and labor done in drilling a well for defendants at their request, the complaint containing a quantum meruit count, it is error for the court to grant a motion for a nonsuit upon the ground that “ if there was any contract between these parties it was to sink a well containing other than surface water.”</p>

<p> Appeal from Third Judicial District, Gallatin County. </p> <p>On rehearing.</p> <p>No brief on file for Appellant.</p>

The action was tried before Wade, C. J. It cannot be doubted that machinery attached to the realty in the manner the testimony shows this machinery to have been attached, and necessary or convenient for the working of the property, becomes a part of the realty, and cannot be severed therefrom by the mortgagor, even though the same may have been placed on the property after the execution of the mortgage.

<p>Damages — Excessive verdict — Common carriers. — In an action for damages for injuries to the person where the evidence showed that the plaintiff was fifty-four years old at the time of the accident; that the large hone of his leg was broken and run through the skin; that the ankle joint was broken and the small hone shattered so that an immediate amputation of the foot was necessary ; that it was over a year before the leg healed up, small pieces of -hone coming out at different times; that he had been unable to walk without crutches; that an artificial foot caused him pain; that he was under medical treatment for two months, which cost him $800; that his wound was very painful until it healed and at times afterwards; that he was deprived almost entirely of attending to his business, which would be more profitable if he could attend to it; that at times he was obliged to employ other help; that his general health was as good after as before the accident, but he was not as strong and could not take exercise; that his partner considered him of no account since the accident, but before he was able-bodied and did considerable work about their store; that outside of manual labor he was as good a man as before; that they were in the hardware business. Eeld, that in the absence of proof as to the value of plaintiff’s business, a verdict of $20,750 was excessive, and a new trial would be granted unless plaintiff would remit all but $10,750 with interest.</p>

A motion for judgment on the pleadings was granted by Blake, C. J. Statement of facts, prepared by the judge delivering the opinion of the court. The plaintiff, John Merrigan, brought this action to foreclose a mechanic’s lien.

On the trial of this action defendants admitted the material allegations of the complaint and voluntarily assumed the burden of proof. .

The cause was tried before Liddell, J. Statement of facts, prepared by the judge delivering the opinion. The plaintiff is a corporation, organized under and by virtue of the laws of the kingdom of Great Britain and Ireland, and at the times mentioned in the complaint was doing business in the Territory of Montana, rearing, buying, and selling cattle, horses, and live-stock generally.

The demurrer to the complaint was sustained by Liddell,. J. STATEMENT OE FACTS. This was an action brought by the plaintiff (appellant in this court) against the Grinuell Live Stock Company for the alleged breach of a contract for the delivery of cattle, and with said company are joined as defendants T. L. Kimball and George W. Holderge, who are sued as guarantors or sureties of the cattle company for the .fulfillment of the contract on its part.

The defendant was prosecuted by information filed by the county attorney. A motion to quash the information on the ground that the county attorney had no authority to make or file it was sustained by Huet, J. 1. Section 1, page 118 of the Laws of the Sixteenth Session, defines the duties of county attorney, and, among other things, empowers him to prosecute all public prosecutions.

The defendant was tried before De Wolee, J. There was no evidence tending to connect the defendant with the robbery, except the evidence showing him to have had possession of the property, alleged to have been stolen, some time after the robbery had taken place.

Appeal from, Third Judicial District, Custer County. An objection by the defendant to the introduction of any testimony under the indictment was sustained by Liddell, J.

The action was tried before McConnell, C. J. Defendant appeals from an order by Blake, C. J., granting a motion for a new trial. It is universally held that where there is a conflict in the evidence the verdict of the jury will not be disturbed; that it is for the jury and not for the court to pass upon the credibility of witnesses and to determine the weight to be given the evidence. (Muskegon Nat. Bank v. N. W. Mut. Life Ins. Co. 19 Fed.

The cause was tried before Liddell, J. Plaintiff appeals from an order of the court granting defendants’ motion for a new trial. The agent, Tompkins, as is admitted by the defendants, and as is shown by the evidence, had full authority to make sales. His contracts of sale made in the course of that business were binding upon them.

The action was tried before Blake, C. J., without a jury. In ejectment, after pleading general issues, defendant need not set up title in himself.

Original proceeding. Application for writ of mandamus. The right to mandamus in the case presented is unquestioned. (Fowler v. Peirce, 2 Cal. 165; State v. Weston, 4 Neb. 216; Thomas v. Owens, 4 Md. 190.) If relator is entitled to compensation for services as claimed, the amount is fixed by law, and the auditor does not exercise judicial functions in auditing it. (Comp.

The cause was tried before Liddell, J., without a jury. The findings and judgment were for the plaintiff. Defendant apjoeals from an order overruling a motion for a new trial. The complaint does not allege sufficient facts to show that the Probate Court acquired any right to issue a writ of attachment in the case of Harmon v. Speelman, in that court.

The cause was tried before Bach, J. Defendants appeal from an order overruling a motion for a new trial, by Liddell, J. Where the plaintiff alleges that he is the owner of personal property described in his complaint, and that the same has been wrongfully taken by the defendant, the defendant may show under a denial of plaintiff’s title anything that is inconsistent with the allegations of the complaint.

The case was tried before McConnell, C. J., without a jury. Plaintiffs were estopped from taking the position that the contract was valid after having procured the decision of the court that it was void. The rule is well settled that a party is not permitted to take inconsistent positions in court in the same suit. (Smith v. Babcock, 3 Sum. 584; Ohio etc. By. Co. v. McCarthy, 96 U. S. 258; Philadelphia, etc. By.

<p>Justice's Cotot — Practice—Wawer of defective summons try appeal. — The defendant appealed to the District Court from a judgment by default rendered against him in a Justice’s Court, and appearing specially, moved to dismiss the action upon the ground of a defective summons. Held, that the defendant having appeared generally in taking his appeal, thereby waived the irregularities in the summons, and could not subsequently appear specially for the purpose of a motion to dismiss.</p> <p>Same — Appeal — Trial de novo. — under section 826 of the Code of Civil Procedure, providing that “ all appeals from Justices’ Courts shall be tried anew in the District Court on the papers fil' d in the Justice’s Court,” a judgment by default will be affirmed, on appeal, where no motion was made in the Justice’s Court to set aside the default, or other appropriate relief sought; the complaint being sufficient for the court in which it was originally filed.</p>

J. Where, upon foreclosure of property, title is taken in the name of one, but the consideration is paid by another, a resulting trust arises. (Perry on Trusts, § 126; Story on Equity Jurisprudence, § 1201.) If a joint purchase is made in the name of one, and another pays his share of the purchase money, the latter will be entitled to his share of the property as a resulting trust. (Story on Equity Jurisprudence, § 1206; Buck v. Swazey, 35 Me. 49; 56 Am.

<p>Practice — Statement on motion for new trial — Proof of service. — Where it appeared from an affidavit of defendant’s attorney that a statement on motion for a new trial was served by leaving the original with the plaintiff’s attorneys, who, after retaining it for three days, returned it to defendant’s attorney, by whom it was then filed with the clerk of the court and afterwards settled by the judge. Held; that the service was good, and that the proof of such service was properly made by the evidence of the person serving the same.</p> <p>Same — Notice of settlement of statement on motion for a new trial. — A statement on motion for a new trial may he settled by the judge without notice to the adverse party, when no amendments have been filed within the time allowed by law.</p> <p>Same — Hearing of motion without notice.. — A motion for a new trial made by defendant was heard and refused in the absence of plaintiff or his attorneys, and without notice. Held, that as the disposition of the motion was favorable to plaintiff there was no error of which he could complain.</p> <p>Same— Motion to strike from the. transcript. — A. motion to strike from the transcript a statement on appeal, based upon the objection that the statement is not engrossed and the contents not arranged in chronological order, will be denied where the only offense is au inartistic arrangement of the matters contained therein.</p>

The cause was tried before Blake, C. J. Tbe appellant insists that tbe court erred: First, in nonsuit-ing him upon bis cross-complaint. Second, in refusing to non-suit the plaintiff. Held: in the case of Tibhitts v. Ah Tong, 4 Mont. 536, that there is a distinction between receiving a title to the possessory right of the locator of mineral lands of the United States on the part of an alien, and the receiving of the title of another character of lands by such alien.

<p>Pleading — Mines and minerals — Forfeiture of mining claim. — In an action for the possession of a mining claim, a party relying upon a forfeiture by his adversary must specially plead such forfeiture; and the facts constituting the same must be alleged and proved upon the trial.</p>

An order for the examination and survey of defendant’s property was made by HUNT, J. Defendant appeals from the order, and also applied for a writ of certiorari to review an order of the District Court, finding defendant’s manager guilty of contempt of court for refusing to obey the order appealed from. The obnoxious features of section 376 are apparent at a glance. The quality of the right or interest in ” the mining claim to be shown by the petitioner is not defined.

The cause was tried before Liddell, J., without a jury. ' The common law is in full force in this State, except where expressly repealed or altered by the legislature. (§ 201, p. 647, Comp. Stats. Mont.; Wilson v. Davis, 1 Mont. 193.) There can be no doubt that at common law the civil existence of the wife is merged in that of her husband.

The cause was tried before Liddell, J. The proposal of Clark was to care for the “ sick and infirm ” at $12 per week per capita, and for the poor at $1.50 per week per capita if cared for at the county poor-house, and for the poor at $7 per week per capita if cared for in Miles City. This proposal was accepted.

The cause was tried before Blake, C. J. The court erred in refusing to give instructions 7 and 8 asked by the defendants, to wit: 7th. “That if you believe from the evidence that the notary, A. K. Barbour, who took the acknowledgment of the deed, was the attorney and nephew of S. Hauser, for whose benefit it was made, and that said Barbour ■was a member of the firm of Bullard and Barbour, attorneys, who had charge of the procurement of the said conveyance, and that they, as…

; who ordered judgment nuno pro tune for the plaintiff. Until judgment was formally entered of record no valid execution could issue, and no supplementary proceedings could be brought to enforce performance. It is only actual final judgments that may be enforced by execution. A. mere order for a judgment, although judgment may afterwards be perfected thereon, will not authorize the issuing of execution.

02. Judgment was rendered in accordance with the report of the referee, and defendant’s motion for a new trial was overruled by McConnell, C. J. The purchase by plaintiff of defendant’s interest in the copart-nership was made with full knowledge that there were omissions in the books, and with absolute knowledge of the errors and omissions in the particular items upon which he recovered in this action.

Judgment on the pleadings in favor of tbe plaintiffs was rendered by McCoNNELL, C. J. Tbe property in question at the time of the death of the testator was not a part of his real property, but was personalty, and the widow was, under the will, entitled to the whole of it.

Original proceeding. Application for Avrifc of mandamus. Relator seeks a mandate requiring the State treasurer to pay a warrant drawn in favor of relator for services as secretary of State. It is admitted that there is sufficient money in the treasury to pay this warrant, but respondent, as an excuse for his refusal to pay, claims there is no appropriation by the legis-ture with which to pay.

On petition for a writ of habeas corpus. Statement of facts, prepared by the judge delivering the opinion. The defendant was indicted in the Fifth Judicial District for rape. He was placed upon trial before a jury. After the State had produced all the testimony at its command, the defendant asked the court to peremptorily instruct the jury to acquit.

Relator’s petition for a writ of mandate was denied by Hunt, J. The court below based its action upon the fact that the last legislature failed to make any appropriation, and that this case falls within section 34, article v. of the Constitution. In this we think the court erred. It is the plain duty of the auditor to issue a warrant to the relator for the performance of this work. (Comp.

Seventh Judicial District, Yellowstone County, Defendant’s motion for a new trial was granted by Liddell, J. Setting aside the verdict of the jury was a matter of legal discretion, vested in the court below, and this court will not interfere with it unless abuse of that discretion is shown, and especially if there be a substantial conflict of evidence.

This action was commenced in the District Court of Lewis and Clarke County. A change of venue was granted by Hunt, J., to Gallatin County on motion of the defendants. The order discharging the attachment was made by Henry, J. Statement of facts, prepared by the judge delivering the opinion. The complaint is on a money demand, and was filed in the First District Court in and for Lewis and Clarke County, November 27, 1889.

Defendant’s motion to set aside the judgment was denied by Galbeaith, J. Statement of facts, prepared by the judge who delivered the opinion. On August 29,1889, the complaint was filed. The summons issued thereon was served on defendant in the county where the action was commenced August 31st. His time to answer expired September 10th.

Appeal-from, First Judicial District, Lewis and Clarhe County.

See syllabus and opinion in the case of Gans et al. v. Switzer et al., ante, page 460. Appeal from First Judicial District, Lewis and Clarice County. Plaintiff’s motion for judgment on the pleadings was granted by Hunt, J.

The cause was tried before De Wolfe, J, Tiie plaintiff contends that it is the owner in fee of its grounds and platforms; that it may regulate the use of the plat * form as it desires, provided the traveling public are not inconvenienced; that it may, if it wishes, engage in carrying passengers by hacks to and from its trains; that if it was so engaged in such business, it would have the right to its own property for such purposes; that if it has such right, it can as well…

The court erred in overruling the defendants’ demurrer to the complaint, for the reason that the bond upon which this action is based is certainly a separate and not a joint bond. That the parties did not enter into a joint obligation at all. If the defendants cannot take advantage of this defect upon demurrer, we claim that it was still error to render a joint judgment upon the complaint based upon this bond.

The defendant was tried before Galbjraith, J. The court erred in overruling the defendant’s challenge to the panel of the grand jury. (Laws of 16th Legislative Assembly, p. 166, §§ 4, 14; Comp. Laws, p. 427, § 119; p. 428, § 129; Mg Quillen v. State of Mississippi, 8 Smedes & M. 597.) The court cannot at his will discharge a grand jury regularly drawn.

The cause was tried before De Wolfe, J. Statement of facts, prepared by the judge who delivered the opinion. This action is the ordinary one between claimants of quartz mining ground, brought to determine the right of possession and the right to proceed in the United States land office to obtain a patent to the premises. The plaintiff founds his rights upon a location of a claim called the Flapjack; defendants upon their Argonaut Claim.

. The order modifying the injunction was granted by Melt ATTON, J. We are at a loss to name the order made, and from which the appeal is taken. It certainly is not an order dissolving an injunction, nor so far as we can understand it, an order that has any reference to the granting or dissolution of an injunction.

The cause was tried before Hunt, J., without a jury. Statement oí tlie case, prepared by the judge who delivered the opinion. The complaint iu this case was filed September 7, 1888.

The defendant was tried before Dtjrfee, J. The judge of the District Court has authority to dismiss the case and order a -nol. pros, of the indictment, and to direct a resubmission or re-examination of the charge, and in the mean time detain the defendant in custody for his appearance to answer a new indictment, where: (1) If the defendant is formally acquitted on the ground of a variance between the indictment and the proof; or (2) upon an objection to the form or substance…

The cause was tried before De Wolfe, J. The subpoena, with the coroner’s return thereon, was inadmissible and incompetent as evidence; and its admission by the court over the objection of appellant was error. During the trial the respondent, by leave of the court, filed an amendment to the eleventh ground of contest, and the appellant then moved the court to strike out a portion of said amendment, which motion was overruled by the court; and this we hold was error.

The defendant was tried before HUNT, J. Statement of the case, prepared by the judge who delivered the opinion. The defendant was indicted, tried, convicted, and sentenced for the crime of murder in the first degree. He appeals from the judgment and from the order of the court denying the motion for a new trial. The grounds relied upon in his argument in this court are as follows: — 1. The verdict is not sustained bv the evidence.

The cause was tried before De Wolfe, J., without a jury. The District Court erred in refusing to find that the defendant had an equitable title to the premises through her former husband from James Walsh. '{Story v. Black, 5 Mont. 48 ;■ Jones v. Marks, 47 Cal. 243; Bodley v. Ferguson, 30 Cal. 512; Ray v. Birdseye, 5 Denio, 626; Hughes v. United States, 4 Wall. 232.) It was claimed in the court below that the appellant was estopped from denying respondent’s title to the…

The judgment was rendered by Hunt, J. The sole controversy in this ease is whether a subsequent mortgagee, having actual knowledge of all the facts and circumstances required to be set forth in the affidavit to be attached to a chattel mortgage under our statutes, can take advantage of the fact that the first mortgage is not accompanied by the affidavit required by the statute, and secure priority for his subsequent mortgage over the first.

The cause was tried before De Wolfe, J., without a jury. Statement of the facts, prepared by the judge who delivered the opinion. Held: on the contrary, that “the boundary planes should be definitely determined by the lines of the surface location,” and that “if the first locator will not or cannot make the explorations necessary to ascertain the true course of the vein, and draws his end lines ignorantly, he must bear the consequences.” The Argentine Case is very…

The contest was tried before McIIattoN, J., without a jury. Contestant brings this action under section 1043, fifth division of the Compiled Statutes, to determine which of the two candidates for the office of sheriff is entitled to the same, “in such manner as shall carry into effect the expressed will of a majority of the legal voters.” Issue was joined as to the number of legal voters who voted at preciuct 34, of the county of Silver' Bow, and upon other issues raised by…