text:
    NOLAN, Respondent v. MONTANA CENTRAL RAILWAY COMPANY, Appellant.
    [No. 1262.]

      On Motion to Dismiss Appeals.

    [Submitted July 18, 1900.
    Decided July 19, 1900.]

      Appeal from Judgment and †'ronu Order denying Mew Trial— Undertaking on Appeal — Sufficiency.
    1. Where respondent moved to dismiss an appeal for want of a certificate under Code of Civil Procedure, See. 1739, providing- that the clerk of the court shall certify that an undertaking on appeal, in due form, has been properly filed, and pending the motion appellant obtained an order from the Supreme Court permitting the clerk to amend his certificate, and such amended certificate has been filed in the Supreme Court before the submission of the motion, respondent’s motion will be denied.
    2. An undertaking for an appeal from a judgment for plaintiff, and an appeal from an order denying a new trial, stating that the undersigned promise that the defendant will pay all damages and costs which may be awarded against it on the appeal, or dismissal thereof, not exceeding $300, was not objectionable in not stating whether the bond was for the appeal from the judgment or for the appeal from the order denying a new trial, since the bondsmen were liable for any damages and costs to which the defendant might become entitled under either appeal.

      Appeal from District Court, Silner Bov) County, Joint Ijindsay, Judge.

    Action by Timothy Nolan against the Montana Central - Railway Company. From a judgment in favor of plaintiff, and an order denying a new trial, defendant appeals. Motion by plaintiff to dismiss the appeal.
    Motion denied.

      Mr. A. J. Shores, for Appellant.

      Mr. George llaldorn, for Respondent.
   PER CURIAM.

— The respondent moves a dismissal of the appeal from the judgment in his favor, and the appeal taken at the same time from an order denying the appellants motion for a new trial. The grounds of the motion are: (l).that this court has no jurisdiction of either of the appeals, because the certificate of the clerk of the district court to the transcript does not state that an undertaking on appeal in due form was properly filed, as by section 1739 of the Code of Civil Procedure the clerk is required to certify; and (2) that the undertaking filed is void for .ambiguity and uncertainty, because the sureties after reciting that the appellant is about to appeal to the Supreme Court from the judgment entered against it, and from the order entered denying the defendant’s motion-for a new trial, ‘ ‘undertake and promise on the part of the appellant that the said appellant shall pay all damages and costs which may be awarded against it on the appeal, or on a dismissal thereof, not exceeding three hundred dollars,” wherefore it cannot be ascertained to which appeal the undertaking applies.

Since the filing of the motion the appellant has obtained an order of this court permitting the clerk of the court below to amend his certificate to the transcript in the particular referred to; and the transcript is now accompanied with the certificate of the clerk of that court, filed here before the submission of the motion, to the effect that an undertaking- on appeal in due form was properly filed. This ground of the motion is therefore untenable.

After reciting that the defendant is about to appeal from the judgment and the order denying the defendant’s motion for a new trial, the undertaking proceeds: “Now, therefore, in consideration of the premises and of such appeal we, the undersigned residents and freeholders of the city of Great Falls, county of Cascade, and state of Montana, do hereby jointly and severally undertake and promise on the part of the appellant that the said appellant will pay all damages and costs which may be awarded against it on the appeal, or on a dismissal thereof, not exceeding three hundred dollars.” The respondent argues that this court has no jurisdiction of either of the- appeals, because the undertaking is void for ambiguity and uncertainty, in not specifying which appeal the sureties undertake to be responsible for. The same question was presented and argued in Watkins v. Morris, If Mont. 354, 36 Pac. 452, the opinion in which does not disclose the contents of the undertaking, the motion to dismiss in that case being as follows: ‘‘Because it appears from the notice of appeal on file herein that the said plaintiffs have attempted to take two appeals (that is, an appeal from the order overruling their motion for a new trial, and an appeal from the judgment), and only one bond has been filed for costs, and that in the sum of only three hundred dollars; and it does not appear, nor can it be ascertained from the papers on file herein, for which appeal the said bond was intended and filed. ’ ’ The undertaking was, in substance and form, identical with the one in the case at bar. In support of the motion counsel in that case cited, as do counsel in this, Mathison v. Leland 1, Idaho, 712; McCoy, v. Oldham, 1 Idaho 465; Eddy v. Van Ness, 2 Idaho, 93, 6 Pac. 115; and Cronin v. Bear Creek Cold Mining Co., 2 Idaho, 1146, 32 Pac. 53, — as well as other cases. Although Watkins v. Morris was decided before the enactment of the provision of section 1731 of the Code of Civil Procedure, permitting an appeal from a judgment and from an order granting or refusing a new trial, when taken at the same time, to be made effectual by the filing of one undertaking in the sum of §300, yet the court, because of the universal practice in that regard, nevertheless held such an undertaking sufficient, where the appeals were consolidated in one record. The change (if any) wrought in the practice by that provision of section 1731, consists in restricting the right to support the appeals by an undertaking in the sum of §300 to cases where such appeals are taken at the same time. In that case this court did not in the opinion expressly decide the identical question here raised, but the court did by necessary implication determine it, and held that the undertaking was neither imperfect nor void. It further held, impliedly but necessarily, that the sureties on such an undertaking would be answerable for any damages and costs to which the respondent might become legally entitled by reason of either appeal; otherwise, the decision cannot be justified, for, if the sureties became bound for the costs and damages of but one of the appeals, the undertaking would have been imperfect, because affording insufficient security to the respondent, and, if it was impossible to ascertain to which appeal the undertaking was referable, it would have been not merely imperfect or insufficient, but wholly void. The Watkins case decided that the legal effect of the contract made by executing an undertaking (given to satisfy a statutory requirement) in the form of the one given in that case was to subject the sureties to the payment of all damages and costs which might be awarded against the appellant on the appeals, or on either of them, or on a dismissal thereof. Sureties subsequently executing undertakings in the same form must, in legal contemplation, have known and adopted,' or be deemed to have consented to, the interpretation theretofore placed upon the language employed, and their contract will be so construed. Upon the authority of Watkins v. Morris, supra; Ramsey v. Burns, 24 Mont. 234 61 Pac. 129, Helena & Livingston Smelting Reduction Co. v. Lynch, 24 Mont. 241, 61 Pac. — ; Boucher v. Barsalou, Id; Mahoney v. Butte Hardware Co. id; and Teague v. John Caplice Co. Id, — this ground of the motion to dismiss must be overruled.

The motion is therefore denied. Denied.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    STATE ex rel. BAKER, Relator v. SECOND JUDICIAL DISTRICT COURT, Respondent.
    [No. 1543.]
    [Submitted June 25, 1900.
    Decided July 23, 1900.]

      Ejectment — Appeal—Stay of Execution — Amount of Security —Mining Claim — Real Estate.

      1. Code Civ. Proc. Sec. 1732, authorizing a stay of execution pending an appeal from a judgment directing the delivery of possession of real estate, applies in case oían appeal by defendant in ejectment involving an unpatented mining claim.
    2. Neither the statutes nor the courts in Montana recognize any distinction between possessory rights to mining claims upon public lands, and real estate held under other titles.

      3. When an appeal has been dismissed without prejudice because it was improperly taken, the order fixing the amount of the first undertaking for stay of execution was functus officio, and on the taking of a second appeal it was the duty of the court to again fix the amount of the undertaking for stay of execution.
    4. Where defendant in ejectment was adjudged to be in wrongful possession, and no writ had been issued to put plaintiff in possession, and defendant appealed, and is ready to furnish security for stay of execution, the amount of security should be fixed, whether defendant was in possession or not.
    Action by the State, on the relation of B. L. Baker, against the Second Judicial District Court in and for Silver Bow County, and the Hon. J ohn Lindsay, Judgs thereof, for certiorari.

    Application dismissed.

      Jlr. J. E. Ilealy, for Relator.

      Mr. William, II. De Witt, and Mr. T. Bailey Lee, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

In this cause the relator seeks by certiora/i'i to have this court review and annul the action of the district court of Silver Bow county in making an order fixing the amount of an undertaking on stay of execution pending an appeal from a judgment in the case of Baker against the Butte City Water Company. Upon the affidavit filed in this court the writ was issued. The record returned by the district court discloses the following proceedings had in said cause:

On July 31, 1899, the relator obtained a judgment against the Butte City Water Company, a corporation, in a cause wherein the relator ivas plaintiff and the said corporation was defendant. The action was in ejectment, and by thejudgment the plaintiff was declared to be the owner and entitled to the possession of the Keystone (unpatented) quartz lode-mining claim, situate in the Highland mining district, Silver Bow county. A motion for a new trial was made by the defendant corporation, which was denied. Appeals from the order and judgment were then taken to this court.. Upon motion by the relator these appeals were dismissed because of a defective undertaídng on appeal. (Baker v. Butte City Water Co. 24 Mont. 31, 60 Pac. 488, 817.) An undertaking on stay of execution pending these appeals was filed with the clerk of the district court, the court having fixed the amount of the same at $250, conditioned as required by statute. Upon the dismissal of these appeals, the order being made without prejudice, the defendant appealed again from the judgment; and, upon application to the district court, that court, by the Honorable John Lindsay, one of its j udges, fixed the amount of the undertaking on stay of execution pending the appeal at $1,500, which was thereupon filed.

The complaint is now made that this order was in excess of jurisdiction, for the reasons (1) that the statute (Code of Civil Procedure section 1732) authorizing a stay of execution pending an appeal from a judgment directing the delivery of possession of real estate does not apply to unpatented mining-claims; (2) that the court had no power to fix the amount of an undertaking for stay upon a second appeal from the same judgment, because its power was exhausted under the first appeal; and (3) that at the time the amount of the undertaking was fixed it was made to appear to the district court that the mining claim in controversy was not then, and for a long time had not been, in possession of the defendant.

We are of the opinion, after a consideration of the questions presented, that the writ was improvidently granted, and that it should be set aside, and the application dismissed.

Neither the statutes nor the courts in this state recognize any distinction between possessory rights to mining claims upon public lands, and real estate held under other titles, While recognizing the United States as the paramount proprietor, the legislature and the courts have always treated the claimant under a perfected location as the owner of the fee. Indeed, the location operates as a grant from the government; and the estate acquired under it is a vested right to the fee, which becomes absolute upon the performance of the required conditions. It can be lost only by abandonment, or by forfeiture and location by another. It is property, in every sense of that term, and except in the particular j ust noted, it has all the attributes of real estate. It may be transferred by sale,- as other real estate; it may be mortgaged; it may descend to the heir, or be held by the administrator or executor as assets to pay debts; it may be made liable to the payment of taxes; it is subject to statutory liens; in some instances it may be subject to the claim of homestead; and it is subject to levy and sale as other lands for the satisfaction of judgments. Hence the legislature has classed this species of property as real estate (Political Code, section 16; Civil Code, section 4662; Code of Civil Procedure section 3463), and has provided the same remedies for the protection and enforcement of rights pertaining to it, with the same forms of procedure as it has provided for the protection and enforcement of rights pertaining to other real estate. The same actions are as appropriate to the one as to the other. The same form of judgment is entered in both cases. It is enforced in the same way, subject to the right of appeal, with a stay pending final review, under the provisions of the Code of Civil Procedure. These matters are all so familiar to the profession in this state that it is unnecessary to more than mention them. There is no provision anywhere making any exception in case of mining claims. Therefore we conclude that the court, in making the order complained of was acting within its jurisdiction, in pursuance of 'the provisions of section 1732, supra, and accorded to defendant a right granted by statute. Under the provisions of this section, any right established by plaintiff in his action in the" district court was suspended by the undertaking given, pending the appeal. (Shepperd v. Tyler, 92 Cal. 552, 28 Pac. 601.) The case is in no wise altered by the fact that the plaintiff is kept out of possession in the meantime, and that there may be difficulty in the way of preserving the title which he may finally establish by doing the necessary representation work. Any such difficulty is more apparent than real. Doubtless, by suitable proceedings in the trial court, the right of entry upon the claim for this purpose can be obtained, and resort to force will not be necessary.

The order dismissing the appeals in Baker v. Butte City Water Co. was made without prejudice. The appeals having been held not properly taken, the result was that the defendant was left with all the rights it would have had if it had not attempted to appeal. The fixing of the first undertaking was a mere nugatory act. From it the defendant derived no benefit. When the appeal from the judgment was finally taken and perfected as provided by statute, it was the duty of the court, upon application of defendant, to fix the amount of the undertaking on stay, so that the defendant might be left in possession of the disputed property until its rights could finally be determined. Upon a compliance with section 1732, supra, it was entitled to a stay, and it would have been an arbitrary act on the part of the court to deny it by refusing to fix the amount of the undertaking. The order was therefore properly made. The fixing of the amount of the first undertaking in no wise affected the power or duty of the court to fix the amount of the second.

From the statements contained in the affidavit and brief of counsel, it’ seems that, at the time defendant applied to the district court for the order fixing the amount of the undertaking, there was some sort of showing made, or attempted to be made, as to whether the defendant was in possession of the claim in controversy. This was wholly foreign to the matter then considered. The defendant had been adjudged to be in wrongful possession. No writ had issued to put plaintiff in possession. The defendant had appealed, and was ready to furnish the security for a stay until the appeal should be determined. Whether, as a fact, the defendant was in possession, was no reason why the amount of the security should not be fixed. If the plaintiff in the meantime had taken peaceable possession, he was not disturbed by the order, for it went no further than to name the penalty of the undertaking to be furnished.

The writ having been improvidently issued, it is vacated and set aside, and the proceeding is dismissed. Dismissed.


author: MR. JUSTICE PIGOTT

text:
    WADE, Appellant v. LEWIS & CLARKE COUNTY, Respondent.
    [No. 1469.]
    [Submitted June 22, 1900.
    Decided July 23, 1900.]
    Counties— County Surveyor — Mileage—Statutory Construction.

    1. Act March 4,1897 (Laws 1897, p. 71) section 13, enacts that a county surveyor shall receive Í3 a day as full compensation for the performance of his duties. Pol. Code, Sec. 4590, enacts “that members of the legislative assembly, state officers, county officers, township officers, jurors, witnesses and other persons who may be entitled to mileage,” shall be entitled to collect 10 cents per mile for the distance actually traveled “and no more.” Held, that a county surveyor is not entitled to mileage, since the purpose of the section was not to create a right to mileage, but simply to iix a uniform rate of mileage, and, besides, the phrase “who may be entitled to mileage” does not only limit the phrase “other persons,” but refers baek and qualifies “county officers” as well.
    2. What is not by law imposed as expenses upon a county is not a charge against it.
    3. Whether or not qualifying phrases in a statute apply to the last antecedent only depends upon the intent of the legislature.
    4' Punctuation “is a most fallible standard by which to interpret a writing.”

      Apoeal from, District Court Lewis and Clarice county; S. II. JLclutire, Judge.

    Action by J ohn AV. Wade against Lewis and Clarke county to recover mileage as county surveyor. Judgment for defendant, and plaintiff appeals.
    Affirmed.

      Messrs. Stranahan <& Stranahan, for Appellant.

      Mr. C. B. JVolan, Attorney General, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

By “An act to define the powers and duties of county surveyors, and to provide for their compensation, and to abolish the office of road supervisor, ” approved on the 4th day of March, 1897, and found at page 71 of the laws of that year, the duty of laying out, constructing, and repairing roads was confided to the county surveyor. The plaintiff was such officer of the county of Lewis and Clarke, and between the 1st day of June, 1897, and the 31st day of December, 1898, he actually and necessarily traveled in the prosecution of road work 3,320 miles, for which he presented a claim to the board of commissioners for $332, charging at the rate of 10 cents a mile. The claim having been disapproved by the county auditor and disallowed by the board of commissioners, the plaintiff appealed to the district court of the county, where j udgment was entered to the effect that the plaintiff recover nothing from the defendant, and that the defendant recover costs from the plaintiff. This appeal is from the judgment.

The sole question in this case is whether the plaintiff is entitled to collect mileage. Section 13 of the act of March 4, 1897, provides that “the county surveyor of each county shall receive as full compensation for the performance of his duties as county surveyor, in connection with the roads and otherwise, the sum of five dollars per day. ” It is conceded that this statute does not authorize the plaintiff to receive mileage, but he contends that section 4590 of the Political Code confers upon him that right. Section 4590 is as follows: “That members of the legislative assembly, state officers,, county officers, township officers, jurors, witnesses, and other persons who may be entitled to mileage, shall be entitled to collect mileage at the rate of ten cents per mile for the distance actually traveled and no more. ’ ’ If the phrase ‘ ‘who may be entitled to mileage ’ ’ qualifies the words ‘ ‘ county officers ’ ’ in the earlier part of the section, then the plaintiff is not entitled to mileage; if the phrase does not qualify “county officers,” the plaintiff is entitled to collect mileage, unless mileage is compensation. Por the purposes of this case, we assume, but do not decide, that mileage is not compensation, and that the expression “the distance actually travelled” sufficiently defines that for which the rate of mileage is prescribed.

The principal argument advanced by the plaintiff in support of his contention rests upon the omission of a comma after the words “other persons.” He asserts that because of such omission the phrase “who may be entitled to mileage” qualifies “other persons” only, and therefore that members of the legislative assembly, state, county and township officers, jurors and witnesses, are entitled to collect mileage at the rate of 10 cents per mile for the distance actually traveled, and that such other persons as may be entitled to mileage by force of statutory authority elsewhere found shall likewise be entitled to collect it at the same rate. Whether or not qualifying phrases in a statute apply to the last'antecedent only, depends upon the intent of the legislature. In our opinion, the intent of the legislature was to fix a uniform rate at 10 cents a mile, to lie collected by those entitled to mileage under the law, and not to create the right to mileage. The very language of the section itself strongly supports this view. The omission of the comma after “persons,” while injecting an element of obscurity into the meaning of section'4590, is by no means conclusive evidence of the intent of the assembly to limit the application of the phrase ‘who may be be entitled to mileage’ ’ to “other persons.” In Ewing v. Burnet, 11 Pet. 41, 9 L. Ed. 624, the Supreme Court of the United States said that punctuation ‘ ‘is a most fallible standard by which to interpret a writing. It may be resorted to when all other means fail, but the Court will first take the instrument by its four corners, in order to ascertain its true meaning; if that is apparent on judicially inspecting the whole, the punctuation will not be suffered to change it.” The words “who may be entitled to mileage,” being general, and occurring at the end of the enumeration of officers and other persons, in our opinion apply to and qualify each, and relate to such county officers only as are by other statutes entitled to mileage, and to other persons likewise so entitled. Moreover, the emphatic inhibition contained in the- words with which the section ends were doubtless inserted ex industria, and for the purpose of voicing further the legislative will that the statutes then in force which prescribed a rate of mileage in excess of 10 cents a mile were no longer operative. It may also be observed that the omission of the conjunctive particle “and” between the word “jurors” and the word “witnesses” is somewhat significant of the purpose of the assembly. Had the intention been to provide by Section 4590 for the payment of mileage to all county officers, jurors, and witnesses, the assembly would not have been likely to include them in the same class with “other persons,” and then employ the phrase “who may be entitled to mileage.” There is no setting apart of county officers from other persons who may be so entitled. If the Section read that ‘ ‘members of the legislative assembly, state officers, county officers, township officers, jurors and witnesses and other persons who may be entitled to collect mileage, shall be entitled to collect mileage at the rate of 10' cents per mile for the distance actually traveled and no more,” the position of the plaintiff would be stronger; for then, — disregarding other statutes which serve to evince the intention of the assembly in passing the section, and looking to its language only, — the argument might plausibly be made that the phrase ‘ ‘who may be entitled to mileage” qualifies “other persons” only, and that county officers fall within a class distinct from the class comprising such other persons. But it is not necessary to place the decision wholly upon the grounds already suggested; conceding that Section 4590 is obscure, and its language susceptible of more than one interpretation, it is apparent upon examination of other provisions of the statutes that the assembly in enacting Section 4590 did not intend to create the right to mileage, but merely to provide that when allowed by law, it should be computed at the rate of 10 cents per mile, the design being, as we have said, to make a uniform rate. At the time the section became law, members of the legislature, the lieutenant governor, the president of the senate, and the speaker of the house received 20 cents for each mile of travel to and from their residences and the capital of the state. (Sections 220, 221 and 391 of the Political Code.) By Section 4644 of the Political Code jurors were allowed 15 cents a mile for travel to and from their residences and the county seat. By Section 4660 of the same code county commissioners were to receive 15 cents for each mile necessarily traveled in going to and returning from the county seat and their places of residence. Sheriffs and constables received 15 cents for each mile actually traveled in serving papers. (Sections 4634, 4643 of the Political Code.) Witnesses attending before courts of record were allowed mileage at the rate of 10 cents for each mile. (Section 4648, of the Political Code.) According to the interpretation of Section 4590 for which the plaintiff contends, every state, county and township officer, and every juror and witness, is thereby entitled to collect mileage for the distance actually traveled. Thus, if the plaintiff’s theory be correct, the superintendent of public instruction would be entitled to mileage, notwithstanding the state is by Section 1716 of the Political Code required to pay the traveling expenses necessarily incurred in the discharge! of his duties, and that official, in addition to such expenses, would receive mileage as so much profit at the state’s expense. Before the repeal of Section 502 of the Political Code by the act of March 4, 1897 (Laws of 1897, p. 105), the state examiner, according to plaintiff’s argument, would have been entitled to receive mileage in addition to his salary, despite the provision of section 502 that the salary was for all services rendered in any capacity whatever, including office and traveling expenses; and since the' act of March 4, 1897, he would, upon the same theory, be entitled to collect mileage in addition to his traveling expenses. With respect to the commissioner of labor and some other officers, the like conditions exist. Upon the same theory, public administrators and county assessors— indeed, all public officers — are entitled to mileage. Again, jurors and witnesses in courts not of record were prohibited from collecting, or at least were not allowed to receive, mileage, (Sections 4647 and 4652 of the Political Code); but they would be permitted to collect it under the plaintiff’s interpretation of Section 4590. It is not to be presumed that the assembly by Section 4590 intended to bring about results such as would necessarily follow upon the plaintiff’s interpretation of the section; and nothing in the statute requires such meaning to be given to its language.

Subdivision 8 of Section 4681 of the Political "Code provides that the contingent expenses necessarily incurred for the use and benefit of the county are county charges. We are of the opinion that this provision of the statute is foreign to the case at bar. The statutes have imposed on counties the duty of paying certain expenses and charges, but have not said that mileage to county surveyors is an expense or charge incurred for, or to be paid by, the county. What is not by the law imposed as expenses upon a county is not a charge against it. (Sears v. Gallatin Co., 20 Mont. 462, 52 Pac. 204, 40 L. R. A. 405.)

The judgment is affirmed.

Affirmed.


author: MR. JUSTICE WORD

text:
    STATE, Respondent v. MASON, Appellant.
    [No. 1524.]
    [Submitted June 27, 1900.
    Decided July 23, 1900.]

      Criminal Law — Appeal from Judgment — Instructions — Record — Sufficiency—Review.
    The court in a criminal prosecution charged the jury that they were the exclusive judges of the evidence and its weight, and the credibility of the witnesses, and that they, on considering the evidence, might reject all or any testimony not supported or corroborated by other worthy and credible evidence. Held, that on appeal from the judgment, on the judgment roll, such instruction could be reviewed, though the record contained no evidence, since it was erroneous under any and every conceivable state of facts.

      Appeal from District Co%irt, Silver Bow County; William Clancy, Judge.

    John J. Mason was convicted of robbery, and appeals.
    Reversed.

      Mr. John N. Kirh, for Appellant.

      Mr. C. B. Nolan, Attorney General, for the State.
   MR. JUSTICE WORD

delivered the opinion of the Court.

On the 2d day of February, 1899, in the District Court of Silver Bow county, the defendant was found guilty of the crime of robbery, and thereafter was sentenced to the state prison for a term of twenty years. No motion for a new trial was made, nor does the record contain any bill of exceptions; and what evidence the record did contain, upon motion, has been stricken out. The appeal is from the judgment, on the judgment roll. It appears from the judgment roll that witnesses were called, and testimony was given in behalf of defendant.

The appellant complains of the following instruction, which it is agreed was given by the court below of its own motion: “The court instructs the jury that they are the sole and exclusive judges of the evidence given in this case, and the weight of the evidence and the character and appearance of the witnesses giving evidence on the witness stand; and also may consider the interest they have in the event of the case; and if, after so considering and weighing all such evidence and fully considering the same, may reject all or any such testimony, where it is not supported or corroborated by other worthy and creditable evidence. ” Counsel for the state on the hearing of the cause admitted that the giving of the instruction was manifest error, but contended that under the rulings of this court, in the absence of all evidence from the record, error in giving or refusing instructions cannot be considered on appeal.

It needs no critical examination to detect the error in this instruction of which appellant complains. In it the court, in effect, tells the j ury that, no matter how relevant or competent or pertinent the testimony given in defendant’s behalf may be, — no matter if they believe every word of it to be true, — they are at liberty to reject such testimony, unless it is supported or corroborated by other competent and credible evidence. This is not the law. The instruction complained of is clearly erroneous, and the presumption is that it was prejudicial to the defendant. It cannot be correct under any supposed state of facts, and so is wrong in the absence of all evidence, as it would be were the evidence before us.

With the record in this case in the condition stated above, the question is: Can this instruction be reviewed ?

It is to be remembered that under Section 2176 of the Penal Code ‘ ‘the written .charges and instructions, with the indorsements showing the action of the court, form part of the record, and any error in the decision of the court thereon may be taken advantage of on appeal, in like manner as if presented in a bill of exceptions;” and that Section 2229 of the Penal Code provides that the judgment roll in a criminal case shall include, among other things: “(3) the charges given or refused, and the indorsements thereon. ” Sections 2176, 2229, supra, are practically the same as Sections 1176 and 1207 of the Penal Code of California, adopted in 1872.

In the case of People v. King, 27 Cal. 507, 514, the court said: “It is proper, however, to add, in this connection, that in the absence of any statement or bill of exceptions embodying the evidence, or declaring its purport or tendency, so far as may be necessary to point the exception, we must presume in favor of the action of the court below, upon the principle that the party who alleges error must show it. This, however, must be taken with the qualification that, where the action of the court below is manifestly erroneous under any and every conceivable state of facts,- this court will review it, notwithstanding the evidence may not have been brought up. ’

People v. Levison, 16 Cal. 98, where the defendant was indicted for receiving stolen goods knowing them to be stolen, —a leading case, cited in People v. King, supra, — furnishes an illustration of the qualification above stated. The court below had charged the jury to this effect: “That a guilty knowledge on the part of the defendant is essential to the constitution of the offense. This may be shown either directly,by the evidence of the principal offender, or circumstantially, by proving that the defendant bought them very much under their value, or denied their being in his possession, or the like.” The court in reviewing this instruction, the giving of which was the only error assigned, say: “We understand that the court asserted, as a conclusion of law, that ‘the purchase of goods at a great undervalue by defendant is sufficient proof of the knowledge by him that the goods were stolen. ’ This is not true. Besides, the charge makes a denial by the defendant that the goods were in his possession, whether the denial was truly made or not, proof, and sufficient proof, of the defendant’s guilty knowledge. It also leaves the inference that the unsupported testimony of the thief is sufficient to establish the defendant’s guilt. * * * In this case the jury might well believe the court instructed them, that, if the defendant bought the goods much below their value, this was sufficient to convict him: or, if he denied that he had the goods, this was enough; or, if the thief swore he so received them, this was sufficient. It is true, there is no statement in this case. But, when the instructions are erroneous under any and every state of facts, then this court will review them. For it follows as necessarily in such a case that the court erred to the prejudice of the defendant, when there is no statement, as when one exists. If, however, the instructions may he correct under any supposed state of facts, as the appellant must show affirmative error, we presume in favor of the judgment below, and will not reverse the judgment when no statement appears. ’ ’

In the case of People v. Pick, 34 Cal. 663, for the giving of an instruction wrong under every conceivable state of factSj the court, upon the authority of the cases cited supra, granted a new trial. And in Carpenters. Ewing, 76 Cal. 487, 488, 18 Pac. 432, the court again announces the rule as follows: “None of the evidence being brought up in the record, and there being nothing to show its purport or tendency, it will be presumed that it was such as to justify the instructions, and that they were properly given. The settled rule is that where the record contains no part of the evidence the judgment will not be disturbed on account of instructions alleged to be erroneous, unless it appears that such instructions would have been erroneous under every conceivable state of facts. ’ In the following cases, among others, this qualification of the general rule is recognized and applied: People v. Torres, 38 Cal. 141; People v. Padillia, 42 Cal. 535; People v. Donahue, 45 Cal. 321; People v. Brotherton, 47 Cal. 388; People v. Smith, 57 Cal. 130; People v. Gilbert, 60 Cal. 108; People v. Travers, 88 Cal. 233, 26 Pac. 88; People v. Donguli, 92 Cal. 607, 609, 28 Pac. 782; Thompson v. People, 4 Neb. 531; McKay v. Friebele, 8 Fla. 21.

Counsel for the state, in support of his contention that, in the absence of all evidence from the record, errors in the giving or refusing of instructions cannot be considered on this appeal, cites the following cases: Territory v. Bell and Lane, 5 Mont. 562, 6 Pac. 60; Gum v. Murray, 6 Mont. 10, 9 Pac. 447; State v. Gill, 21 Mont. 151, 53 Pac. 184; and State v. Gawith, 19 Mont. 48, 47 Pac. 207.

In Territory v. Bell the court very properly held that it was not possible to say whether the verdict was contrary to the law and the evidence, or whether the instructions given or refused were applicable or inapplicable to the evidence, since the evidence was not before the court.

In Gum v. Murray it was held that the statement upon motion for a new trial could not be considered because of the absence of any motion, and of any notice of motion, for a new trial. The record did contain Avhat purported to be an exception to all the instructions given by the court to the jury, for the reason that the same did not state the laAv applicable to the case and Avere calculated to mislead the jury. The court held that this exception Avas not a bill of exceptions, as contemplated by Section 294, First Division, Revised Statutes, and therefore was not a part of the judgment roll.

In State v. Gill counsel for the defendent assigned as error the giving and the refusal of the court to give certain instructions set out in full in the opinion. In passing upon this alleged error the court say: “This action of the court is assigned as error. Whether such action of the court Avas erroneous or not depends necessarily upon Avhat the evidence Avas. It is impossible for us to determine Avhether or not the court erred in this particular, without an examination of the evidence, and there is not a syllable of evidence in the record. ’ ’ It appears further from the opinion that the attorney general practically conceded in his argument that the evidence, if before the Court, would show that the District Court erred in giving and refusing the instructions complained of, and suggests that the proper course for the defendant to pursue was to appeal to the executive of the state. The Court announced itself as in accord with this view, and concluded by saying that, “at any rate, the record is in such condition that we are unable to consider the error assigned in the giving and refusing of the instructions in question. ’ ’

In State v. Gawith the Court held for reasons stated in the opinion, that the bill of exceptions which contained the evidence could not be considered; and that the absence of all evidence from the record made it impossible for the court to review the alleged error of the lower court in refusing to instruct or advise the jury to acquit the defendant on the ground that the evidence was insufficient to warrant a conviction. Next, taking up the error alleged to have been committed by the court in instructing the jury, attention is called to the fact that the ground designated in the notice of motion for a new trial in the case was that “the verdict was contrary to the law and evidence,” and the court held that, so far as the motion pertained to the evidence, it must be disregarded at once, as the evidence in the case could not be considered.

The question remaining in the case was this: Could the court review the instructions on an appeal from the judgment, or from an order denying a motion for a new trial, where the only designation of the ground upon which the motion for a new trial was made was that the verdict was contrary to law? In deciding this question the court seems to assume that a motion, for a new trial is the only way to bring up for review errors committed by the court in instructing the jury, and that upon such a motion the instructions cannot be considered, where the sole ground of the motion is that the verdict is contrary to law. Nowhere in the opinion is it said that when an appeal is taken upon the judgment roll alone, without a statement or bill of exceptions, an instruction cannot be reviewed which is manifestly erroneous under any and every conceivable state of facts. And we do not find in the decisions of this court any adjudication upon this precise question, more especially since the adoption of our present Code. In the cases of Barber v. Briscoe, 8 Mont. 214, 19 Pac. 589, and Kleinschmidt v. McDermott, 12 Mont. 309, 30 Pac. 393, and in the concurring opinion of Mr. Justice DeWitt, in the latter case, the question now presented is referred to, but, not being raised was not decided. It may be said that in the case of State v. Gawith, supra, the court must have passed upon the question. But, admitting this to be so, yet it is only inferentially, since the court nowhere in the opinion directs its attention to the consideration of the instructions, except in connection with the motion for a new trial.

The case of State v. Gawith, supra, is overruled in so far as it is held therein that on an appeal from the judgment, in the absence of a statement or. bill of exceptions, the instructions cannot be reviewed; and we approve of and follow the rule as announced in People v. Levison, supra, and the cases cited in support thereof.

For the giving of this instruction complained of by appellant, which does not state the law, and which must be presumed to have been prejudicial to the defendant, the judgment is revesed and the cause remanded for a new trial.

Reversed and remanded.


author: PER CURIAM.

text:
    RICHTER, Respondent, v. EAGLE LIFE ASSOCIATION, Appellant.
    [No. 1545.]

      On Motion to Dismiss Appeals.

    [Submitted July 23, 1900.
    Decided July 24, 1900.]

      Appeal and Error — Order After Judgment — Kotice — Time for Appeal— Undertaking — Two Appeals — Sufficiency.

      1. An appeal from an order made and entered on January stli denying a motion to vacate a judgment will be dismissed, where notice thereof was not served until March 10th, since such appeal was not taken within 60 days from the making and entry of the order, as required by Code Civ. Proc., Section 1723.

      2. An undertaking, in the sum of $300, on appeals from a judgment and an order made thereafter, denying a motion to vacate the same, conditioned for the payment of damages and costs of the appeal, without specifying to which appeal it applies, is insufficient.

      Appeals from District Court, Lewis and Clarhe County; Henry C. Smith, Judge.

    Action by Jennie Richter, individually and as guardian of Harry Richter and Florence Richter, miners, against the Eagle Life Association. From a judgment in favor of the plaintiff, and from an order denying a motion to vacate fhe same, defendant appeals.
    Appeals dismissed.

      Mr. E. D. Weed, for Appellant.

      Mr. JR. JR. Purcell, for Respondant.
   PER CURIAM.

— The plaintiff recovered a judgment by default against the defendant for the sum of $2,445, together with costs, which judgment was entered on the 28th day of June, 1899. On the 8th day of January, 1900, the court below made and caused to be entered an order denying the defendant’s motion to vacate and set aside the judgment. On the 10th day of March, 1900, the defendant filed and served its notice of appeal from the judgment and from the order of January 8th; and on the 13th day of March, 1900, it filed an undertaking, in which the sureties, after reciting that the defendant is about to appeal to this court from the judgment and from the order, undertake and promise on the part of the defendant that it will pay all damages and costs which may be awarded against it on the appeal or on a dismissal thereof, not exceeding the sum of $300.

The plaintiff now moves to dismiss the attempted appeal from the order of January 8th upon the ground that it was not taken within 60 days after the entry of the order. The motion will be granted. Section 1723 of the Code of Civil Procedure provides, among other things, that an appeal may be taken from any special order made after final judgment within 60 days after the order is made and entered in the minutes of the court or filed with the clerk. More than 60 days elapsed between the entry of the order and the giving of the notice of appeal therefrom.

The plaintiff moves that the attempted appeal from the judgment be also dismissed for the reason that the undertaking is void. The supposed appeals are from a judgment and a special order made thereafter, other than an order granting or refusing a new trial; the undertaking is in the sum of $300, and is conditional for the payment of the damages and costs of the appeal, without specifying to which of the appeals the undertaking applies. Upon the authority of Creek v. Bozeman Waterworks Co., 22 Mont., 327, 56 Pac. 362; Murphy v. Nor. Pac. Railway Co., 22 Mont. 577, 57 Pac. 278; and Washoe Copper Co. v. Hickey, 23 Mont., 319, 58 Pac. 866, the principles of which are approved and reaffirmed, the motion must be granted.

The appeals are therefore dismissed.

Dismissed.


text:
    WORLD PACKAGE, EXPRESS & MESSENGER CO., Appellant, v. TRADES ASSEMBLY, et al., Respondents.
    [No. 1493.]
    [Submitted June 19, 1900.
    Decided July 30, 1900. ]

      Injunction — Appeal and Error — Failure to Except — Effect—• Objections — Waiver.

    Plaintiff, on the hearing o£ his application for an injunction, swore a witness whose testimony, in scope and definiteness, exceeded the allegations of the complaint, and in argument on its admissibility the court ruled that the complaint did not state facts sufficient to constitute a cause of action, to which plaintiff excepted, when defendants ' asked leave to withdraw their affidavits in support of their answer, and to be allowed to stand on the answer alone, which was granted, and on motion of defendant the court refused to continue tlie temporary order, and vacated tlie order to show cause, to which plaintiff 8xcepted. Held, that plaintiff, by failing to insist on a ruling as to tlie admissibility of his evidence, and to object to the withdrawal of defendant’s affidavits, and thereby allowing tlie question as to whether an injunction should issue to be submitted on the complaint and answer, waived his right to review the action of tlie trial court on appeal.

      Appeal from District Court, Silver Boto County; //.’ C. Smith, Judge.

    Action by the World Package, Express & Messenger Company against the Trades Assembly and others to restrain defendants from interfering with plaintiff’s business. From an order dissolving a temporary injunction, and vacating an order to show cause, plaintiff appeals.
    Affirmed.
    Statement of the Case.
    On July 23, 1899, the plaintiff applied to the District Court of Silver Bow County for an injunction to restrain the defendants from interfering with his messenger and express business, in which it is engaged in the city of Butte. The complaint alleges that in the conduct of said business the plaintiff makes use of electric call boxes, which it has installed in various houses and places of business in the city, and that these boxes are connected with its general office by means of electric wires; that it also employs men and uses teams and wagons for the purpose of carrying packages and express matter and delivering the same to its customers; that all the means thus employed are necessary and indispensible to the proper conduct of its said business; that the defendants have entered into a conspiracy to ruin plaintiff’s business by destroying the said call boxes, the wires and other appliances used in connection therewith, by forcing the employes of plaintiff to leave its employment, and by compelling the merchants of Butte and plaintiff’s other patrons to cease their patronage; that the defendants threaten to effect their purpose by actual destruction of plaintiff’s said appliances; and to drive away its employes and patrons by means of a boycott; that defendants are all insolvent; and that plaintiff will suffer irreparable damage unless defendants are restrained from their purpose. Upon this application one of the judges of said court made an order requiring the defendants to appear before the court on July 29th, at 10 o’ clock a. m., to show cause why an inj unction should not issue as prayed, and requiring them to refrain from molesting plaintiff’s business in any way until a hearing could be had. At this time defendants McDonald, Maynard, Holden and Geiger appeared in their own behalf, and filed their answer, with certain affidavits to resist the issuance of injunction. The. answer denies directly all the material allegations contained in the complaint. No other defendants appeared. A hearing was had, at which, from the recitals in the record, it appears the following proceedings occurred: “The plaintiff swore a witness in support of the allegations of its complaint, but the testimony offered greatly exceeded in scope, character and definiteness the allegations of the complaint, and upon the argument as to the admissibility of said testimony the presiding judge stated that he was of the opinion that the allegations of the complaint would not warrant the issuance of an injunction or restraining order, and that the complaint did not state facts sufficient to constitute a cause of action for an injunctipn. ” A recess was then taken until 2 o’clock p. m. At this hour, ‘the parties being present in person and by counsel, the defendants asked leave to withdraw their affidavits * * * from the files and stand upon their answer alone. Said leave was granted without objection. The court thereupon stated that he was of the same opinion in regard to the sufficiency of the complaint, to which ruling plaintiff duly excepted. Whereupon, on motion of defendants, the court refused to continue the temporary restraining order in force, and dissolved the same, and vacated the order to show cause, all upon the complaint and answer herein. Whereupon plaintiff moved the court for leave to amend the complaint, • which motion was granted. Whereupon plaintiff duly excepted to order dissolving order to show cause and vacating temporary restraining order, and was granted 30 days to prepare, serve and file bill of exceptions. Whereupon and upon the same day, to-wit, July 29, 1899, the plaintiff, in pursuance of the leave granted by the court, duly filed its amended complaint herein. ’ ’ Prom the order dissolving the restraining order, and vacating the the order to show cause, the plaintiff appeals.

      Mr. O. M. Hall and Mr. Geo. A. Ola/rle, for Appellant.

      Mr. John K. Kirie, for respondents.
   PER CURIAM.

— The condition of this case, as presented by the recitals of the record quoted, is anomalous. The appellant obtained from the court no ruling upon the admissibility of evidence under the allegations of the complaint. If such a ruling had been obtained, and the court had held the pleading bad, an amendment framed to meet the views of the court could have been filed, and thus the order to show cause and the restraining order would have been preserved in force unt-il a, hearing was had upon the evidence. This course is always proper, upon a motion to dissolve an injunction, if the facts contained in the amendment existed at the time the original complaint was filed (Pfister v. Wade, 59 Cal. 273; Barber v. Reynolds, 33 Cal. 497; Shipman v. Superior Court [Cal.] 12 Pac. 787); and the rule'applies as well to the situation presented by the record in the present case. Either this course should have been pursued, or the plaintiff should have offered its proof, and then stood upon the ruling by which it was excluded. The plaintiff would then have been in position to assign error upon the action of the District Court, and properly to present it for review on appeal to this court. We think the court was wrong in the opinion that the complaint does not state a cause of action; but this expression of opinion, though it may explain the plaintiff’s subsequent action, was not a decision of any question presented for determination. No evidence was offered and excluded. No objection was made to the withdrawal of the affidavits filed in support of the denials made by the answer. The question as to whether an injunction should issue was without objection submitted to the court upon the complaint and answer. As the answer met and directly denied all the material allegations of the complaint, the action of the court thereon cannot be disturbed. Though in form the order vacated the restraining order, and discharged the order to show cause, it was in legal effect a refusal to issue the injunction upon the showing then made. In this there was no abuse of discretion. But, conceding that the opinion expressed by the court was in effect a ruling excluding plaintiff’s evidence on the ground that the complaint was bad, the plaintiff is in no position to complain. The record fails to disclose any exception to the ruling taken at the time. The plaintiff having thus submitted without complaint to the court’s action, thereby waived its right to have this Court review it and correct the error thus committed.

The order appealed from is affirmed.

Affirmed.


author: MR. JUSTICE PIGOTT,

text:
    STATE, ex rel, CORNUE, Relator, v. LINDSAY, Judge, Defendant.
    [No. 1517.]
    [Submitted June 15, 1900.
    Decided July 30, 1900.]

      Action — Dismissal by Plaintiff — Payment of Costs — Receiver1 234s Fees — Pa/rtition — Pleading — Answer — Affirmative Relief- — Prohibition.
    1. Under Code Civ. Proc., Sec. 1004, Subd. 1, authorizing dismissal of an action by the plaintiff before trial, by entry in the clerk’s register, provided affirmative relief is not sought by defendant’s answer, plaintiff in a partition suit could not dismiss his action after answer filed setting up defendant’s interest in lands in question, since such answer sought affirmative relief.
    2. Under Code Civ. Proc. Sec. 1004, Subd. 1, authorizing dismissal of an action by plaintiff before trial, by entry in the clerk’s register, upon payment of costs, where a receiver had been appointed plaintiff could not dismiss his action until payment of such receiver’s compensation, since such expense is a taxable cost on the losing party.
    3. A plaintiff may dismiss or discontinue an action where no judgmentotherthan for costs can be recovered against him by the defendant; but when, under the pleadings and evidence, such other judgment may be recovered, the plaintiff will not be permitted, as of course, to dismiss or discontinue.
    4. On application for a writ of prohibition against a district judge, the Supreme Court cannot determine whether the defendant committed error in a matter of which he had jurisdiction.

      Application for a writ of prohibition, on relation of Ellen S. Cornue, against John Lindsay, Judge of the District Court of Silver Bow County.
    Denied.
    Statement of the Case.
    An alternative writ of prohibition was issued out of this Court commanding the Hon. John Lindsay, as Judge of the District Court of Silver Bow County, to desist from further proceedings in an action pending in that court wherein Ellen S. Cornue, the plaintiff in the present suit is the plaintiff, and Henry A. Boot, Andrew J. Davis, and others are the defendants. By answer to the petition and alternative writ the defendant has pleaded facts which he asserts to be a sufficient showing of cause why a peremptory writ of prohibition should not issue; and the plaintiff has replied.
    From the pleadings the facts appear to be these. On the 8th day of February, 1898, the plaintiff commenced an action in the District Court of Silver Bow County for the partition of certain real property, alleging, among other things, her ownership of a certain undivided interest in the property sought to be partitioned, and that each of the defendants had a certain undivided interest therein. On the 26th day of February, 1898, upon the ex parte application of the plaintiff, without notice to any of the defendants in the action, the court appointed a receiver of the property described in the complaint, and the receiver took possession, and has remained in charge thereof to the present time. Certain of the defendants answered on the 15th day of November, 1898, among them Andrew J. Davis, as trustee, who alleged that he and his co-defendant, Palmer, jointly, as trustees, held the undivided interest which the complaint stated they owned, and set forth also the origin and source of the title of himself and Palmer as trustees; and denied that the plaintiff had any title to the property. He demanded that the interest in said real property owned by himself and Palmer as trustees be adjudged, preserved, and set apart and delivered to them in case partition thereof should be made in the action. Thereafter, and on the 3d day of July, 1899, the plaintiff caused to be filed with the clerk of the District Court her praecipe, directing that officer to enter upon the register of actions the dismissal by the plaintiff of the action, paying to the clerk at the same time the sum of $5 as and for the costs incurred by the defendants therein. The clerk on the day last mentioned made upon the register of actions a notation that the praecipe for dismissal had been filed. On the 25th day of November, 1899, the court fixed the compensation of the receiver at the sum of $2,250, and upon a stipulation made between counsel for the plaintiff and the receiver, but without notice to or consent of the defendants, ordered that all costs should be paid out of the ‘ ‘trust fund.” On the 23d day of December, 1899, the plaintiff brought on for hearing a motion to dismiss the action, which motion was based upon the theory that the praecipe for dismissal and the entry by the clerk on November 25th, coupled with the payment then made, was a dismissal, which- ousted the jurisdiction of the District Court to proceed further than formally to recognize the dismissal. Upon the hearing of the motion the defendant Davis as trustee, and all of the other defendants who had answered, appeared and objected to the dismissal of the action. Unless prohibited from so doing, the defendant in the present proceeding will retain jurisdiction of and try the cause.

      Messrs. Toole, Bach di Toole, and Messrs. Glamjberg da Gunn, for Relator.
    Was the case dismissed by the filing of the praecipe and payment of defendants’ costs? Section 1004 of the Code of Civil Procedure provides as follows: “An action may be dismissed: * * * “1. By the plaintiff himself at any time before trial upon payment of . costs, provided a counterclaim has not been made or affirmative relief sought by the answer of the defendants. * * * The dismissal mentioned in the first two subdivisions is made by entry in the clerk’s register.” Section 1008 of the Code of Civil Procedure provides: “Upon the dismissal or disposition of an action in which the court has jurisdiction of the subject-matter of the action, it is the duty of the court to render such judgment for costs.” We insist, however, that in case the costs have been paid, no such judgment need be entered. Plaintiff .did everything required to be done by this statute. After filing a praecipe and payment of defendant’s costs, it became the duty of the clerk to enter the dismissal of the suit on the register of actions. If he has failed so to do plaintiff should not suffer thereby. Plaintiff went even further than the statute requires by calling the attention of the court to what had been done, and asking judgment of dismissal.
    A dismissal by the plaintiff under the statute is an absolute matter of right. Nothing remains in the discretion of the court at all. (New Hampshire v. Ball, 48 Pac. 137; S. C. 51 Pac. 899; lowmcm y. West, 35 Pac. 130; Jackson v. Roane, 23 S. E. 118; Bleckely v. White, 25 S. E. 592; Beals v. W. Tel. Co., 74 N. W. 54; Sha/rpless v. Giffen, 66 N. W. 285; Northwestern Mut. Life Ins. Co. v. Barbour, 23 S. W. 584; State v. Rost, 19 So. 256; Gassman v. Jarvis, 94 Fed. 603.) After the filing of the prcecipe, or at least after the making of the motion to dismiss the suit, the court lost jurisdiction of the suit inter partes and has no right to proceed further therein. (New Hampshire Banking Co. V. Ball, 51 Pac. 899.)
    There is no affirmative relief asked and no counter-claim alleged in the answer of Andrew J. Davis, trustee. (Babcock v. Maxwell, 21 Mont. 507; Moyle v. Porter, 51 Cal, 639; Wood v. Jordan, 57 Pac. 998; Peters v. Chandler, 51 S. W. 281; Union Bank v. Board of Commrs., 21 S. E. 410; Pom. Code, Bern. Sec. 97).
    That a receiver was appointed was no objection to the dismissal of the suit. The power of a court is limited to the appointment of a receiver during the pendency of the suit. The receivership is simply ancillary to the suit, and the suit is not ancillary to the receivership. True, the dismissal of the suit does not ipso facto discharge the receiver. It simply ends his duties inter partes, and the court retains jurisdiction of the receiver and the subject-matter of the suit in his possession to compel the receiver to settle his account and turn over the property to the parties from whom it was taken by him. When his account is settled and the property returned, his discharge by the court follows as a matter of course. The following authorities are more or less in point on this preposition: Field v. Jones, 11 Ga. 413; Irelands. Nichols, 40 How. Pr. 85; Rockwell v. Portland Bank, 50 Pac. 566; Campbell v. Eversole, 38 S.W. 486; High on Receivers, Secs. 833, 837; Beach on Receivers, Sec. 796; 2 Daniel’s Chan. Pr. (5th Ed.) p. 1754; Pitt v. Bonner, 5 Sim. 577. • That prohibition is the proper remedy, see: Kaufman v. Superior Court, 46 Pac. 9u4; Boyd v. Steele, 59 Pac. 21.

      Mr. E. N Harwood, for Respondent.
   MR. JUSTICE PIGOTT,

after stating the case, delivered the opinion of the court.

The plaintiff contends that at the time!she filed the prmaipe for dismissal she paid all the costs of the defendants in the action, and that neither of the answers stated a counterclaim or sought affirmative relief, and that therefore the action was dismissed, and the court was thereafter without jurisdiction. Section 1004 of the Code of Civil Procedure is as follows: “An action may be dismissed or a judgment of nonsuit entered in the following cases: (1) By the plaintiff himself, at any time before trial, upon payment of costs; provided, a counterclaim has not been made or affirmative relief sought by the answer of the defendant. If a provisional remedy has been allowed, the undertaking must thereupon be delivered by the clerk to the defendant, who may have his action thereon. (2) By either party upon the written consent of the other. (3) By the court, when the plaintiff fails to appear on the trial, and the defendant appears and asks for the dismissal. (4) By the court, when upon the trial and before the submission of the case the plaintiff abandons it. (5) By the court, upon motion of the defendant, when upon the trial the plaintiff fails to prove a sufficient case for the jury. * * The dismissal mentioned in the first two subdivisions is made by entry in the clerk’s register.” It is apparent that a counterclaim is not interposed; but we are of the opinion that affirmative relief is sought by the answer of Davis, trustee. Under the provisions of Chapter 1Y, Title X, Part II of the Code of Civil Procedure, (Sections 1340-1399), which treats of actions for the partition of real property, the defendant is not required to plead facts sufficient to constitute a counterclaim in order to obtain affirmative relief. In actions brought for partition the plaintiffs must set out specifically and particularly so far as may be known to them, the interests of all persons in the property; the defendants must set rorth in their answers fully and particularly the origin, nature and extent of their respective interests. The rights of all parties may be put in issue, tried, and determined. An answer stating the matters required to be pleaded by the statute will, when established, entitle the defendants to full relief. While the rule ordinarily applicable to actions in general is that a defendant will not be granted affirmative relief unless he pleads and proves facts constituting a counterclaim, actions for partition comprise an exceptional class. In McClaskey v. Barr (C. C.) 48 Fed. 130, a suit for partition, the court said that “when the defendants have an interest in the property as co-tenants, it is incumbent on them, by their answer, to disclose the nature and extent of such interest as fully as the plaintiff in his complaint, is required to disclose the nature and extent of his interest. They become, as it were, plaintiffs seeking affirmative relief, and bound by all the rules of pleading to exhibit the facts upon which alone that relief can be properly extended,”— which is quoted from the text of Section 499, of Freeman on Co-Tenancy and Partition. The opinion in the case just cited, as well as Section 499 of .Mr. Freeman’s treatise, approves the following extract from Morenhout v. Higuera, 32 Cal. 290: “An action for partition under our statute is to some extent sui generis. The parties named in the complaint, whether as plaintiffs or defendants, are all actors, each representing his own interest. Whether plaintiffs or defendants, they are required to set forth fully and particularly the origin, nature, and extent of their respective interests in the property. This having been done, the interest of each or all may be put in issue by the others; and, if so, such issues are to be first tried and determined, and no partition can be made until the respective interests of all the parties have been ascertained and settled by a trial. ’ ’ Parties to an action in partition are all actors or plaintiffs, each against each and all others. (Senter v. DeBernal, 38 Cal. 637). A plaintiff may dismiss or discontinue an action where no judgment other than for costs can be recovered against him by the defendant, but when under the pleadings and evidence relevant thereto, such other judgment may be recovered, the plaintiff will not be permitted, as of course, to dismiss or discontinue. (McKesson & Hunt v. Mendenhall, et al., 64 N. C. 502. See, also, Estell's Executors v. Franklin, 29 N. J. Law, 264).

Nor do we think that the plaintiff complied with the requirement of Subdivision 1 of Section 1004, supra, that he must pay costs as a condition to a dismissal by himself before trial. The compensation of a receiver is taxable costs. (Hutchinson v. Hampton, 1 Mont. 39; Ervin v. Collier, 2 Mont. 605.) The compensation of a legally appointed receiver, while primarily chargeable to and payable out of the property or funds in his hands, as was held in Hutchinsion v. Hampton, supra, is nevertheless (in the absence of exceptional facts) ultimately taxable to the losing party, whose wrong occasioned the appointment, as was declared in Ervin v. Collier, supra. The receiver in Cornue v. Root, et al., was appointed upon the application of the plaintiff, who sought thereafter to dismiss the action without paying the amount of the costs chargeable against the defendants’ interest in the real property — indeed, it is not admitted that the plaintiff has any interest therein. The attempted dismissal by the plaintiff, without payment of the costs occasioned by her acts, was ineffectual. At the common law neither a disco untinuance nor a dismissal could be entered, except by order of the court or of the chancellor. Subdivision 1 of Section 100é alters the common-law and equity-rule by permitting the plaintiff himself, upon condition that he pay the costs, to dismiss his action (in the absence of a counterclaim pleaded or affirmative relief sought) at any time before trial by entry in the clerk’s register. Without the performance of this condition the attempted dismissal is ineffectual. It is true that a plaintiff may not infrequently be unable- to ascertain the amount of the costs at the time that he desires to dismiss the action; this is a penalty which he must suffer as a consequence of the mistake or error committed by him in bringing the action, which he impliedly admits should not have been commenced. We cannot, of course, on application for a writ of prohibition, determine whether the defendant or the District Court erred in the amount allowed to the receiver. There was jurisdiction to allow compensation and fix its amount.

The defendant, as the judge of the court over which he presides, has jurisdiction of the action. Let judgment be entered setting aside the alternative writ of prohibition, denying a peremptory writ, and dismissing the proceedings.

Judgment for the Defendant.


text:
    STATE, ex rel. GEMMELL, Relator v. CLANCY, Judge, Respondent.
    [Nos. 1540 and 1541.]
    [Submitted June 20, 1900.
    Decided July 30, 1900.]

      Injunction — Disobedience— Constructive Contempt —Affidavit of Facts — Refusal to Allow Defence — Certiorari.
    1. Code Civ. Proc. Sect. 2172, provides that, where a contempt is not committed in the court’s presence, an affidavit ot the facts shall be presented. Section 2173 authorizes the issuance of an order to show cause on such affidavit, and Sections 2178 and 2179 ■ provide that, when the person on whom the order to show cause was served appears, the court must investigate the charge and determine whether the person charged is guilty. Held, that it was improper to refuse to allow relator to move to dissolve a temporary Injunction, or to be heard in opposition to the motion to continue it, on the ground that he was in contempt for violating the injunction by posting notices on the property on which he was forbidden to go, when no contempt proceedings had been instituted against him and no opportunity was given him to defend himself in the matter.
    2. In all contempt proceedings — save for such as are committed in the court’s immediate presence — an affidavit is essential.
    3. In cases where the alleged contempt consists in the violation by a party of an order made in a civil suit still pending, such party is entitled to a separate and distinct notice of the contempt proceeding, in order that he may be afforded an opportunity to prepare his defense, — since every one has the inalienable right of being heard in his own defense.
    4. A non-appealable order, in the malting of which the court exceeded its jurisdiction, may be reviewed on certiorari.

    Certiorari by George Gemmell to review the action of William Clancy, J udge of the Second Judicial District Court, in holding relator guilty of contempt.
    Orders reversed.

      Mr. George M. B our quin, Mr. Franlc F. Corbett, and Messrs. Clayberg & Gunn, for Relator.

      Messrs. Forbes & Evans, Mr. William II. De Witt, and Mr. T. Bailey Lee, for Respondent.
   MR. JUSTICE WORD

delivered the opinion of the court.

Proceedings on certiorari to review the orders of the District Court of Silver Bow County made on the 3d and the 30th days of March, 1900. The facts are these: In a certain action pending in said District Court, entitled ‘ ‘Lyman M. Harley and Butte & Boston Consolidated Mining Company, Plaintiffs v. Montana Ore Purchasing Company, George Gemmell, et al., Defendants,” respondent, as judge of said court, issued a temporary injunction against said defendants, which was duly served on the relator herein on the 6th day of January, 1900, enjoining and restraining him from entering upon the Washington placer mining claim, particularly described in the complaint, of which plaintiffs alleged they were the owners and in possession. On January 26, 1900, relator filed his separate answer in said action, denying, among other things, the ownership and possession by plaintiffs of said Washington placer mining claim, and setting up matters in the way of defense immaterial on this hearing. Relator subsequently filed an amended answer and a supplemental answer, and also made and served his motion to dissolve the temporary restraining order theretofore issued in said cause. This motion came on for hearing on the 3d day of March, 1900. Testimony was introduced in support of said motion. It appeared from the evidence of relator given on said hearing that on the 6th day of January, 1900, and shortly after he had been served with said temporary restraining order, relator had posted upon the premises embraced in said order three separate location notices, copies of which were offered in evidence. Thereupon counsel for plaintiffs objected to relator being heard upon his motion to dissolve, on the ground that relator was in contempt of court. Relator further testified that he had posted said location notices by advice of counsel. The court, the respondent herein, sustained said objection, and refused to hear relator on his said motion to dissolve, on the ground that relator was in contempt of court in entering upon said premises and posting said locatian notices thereon after said restraining order had been served upon him. Afterwards, to wit, on March 30, 1900, plaintiffs’ order to show cause why an injunction pendente lite should not be granted came on to be heard. Witnesses were called and evidence was given in behalf of plaintiffs. At the close of plaintiffs’ evidence, relator offered to introduce evidence in his own behalf. ’ At once, and before the introduction of any evidence by relator, plaintiffs objected to any testimony whatsoever being offered on the part of the relator, for the reason that it had already been adjudged, on March 3, 1900, that relator was in contempt of court. The court sustained said objection, would not permit relator to introduce evidence, and refused to hear him in opposition to plaintiffs’ application for an injunction pendente lite. Thereafter on the 30th day of April, 1900, the court made an order granting plaintiffs’ prayer for an injunction during the pendency of the action. On the application of relator, writs of eertiorari issued out of this Court to review the orders of the court above designated. Only one return has been made; but, as this return embraces all the matters pertaining to both orders, they will be considered together.

First, as to the order of March 3, 1900. The defendant Gemmell, relator herein, as was his right, had filed and served his motion to vacate the temporary restraining order issued on the day the action was begun. In due course this motion to dissolve came on for hearing. While the relator was on the stand, counsel for plaintiffs objected to said relator being-heard, on the ground that it appeared from his own testimony that said relator was in contempt. The court adopted the views of plaintiffs’ counsel, and refused to hear relator. When relator’s motion came on for hearing, and he took the stand in his own behalf, no judgment or other proceedings for contempt had been taken against him. No affidavit containing the facts constituting the contempt had been presented. No notice had been given him; nor had he been served with an order to show cause why he should not be punished for contempt. On the contrary, it does appear that, on the hearing of said motion on the 3d day of March, relator was held guilty of contempt without notice, without an opportunity to be heard, without an opportunity to defend, and in the absence of an affidavit of the facts constituting the contempt necessary to set the power of the court in motion. It appears from the evidence of relator that any contempt which relator may have committed was ‘constructive, ’ ’— that is, one not committed in the immediate view and presence of the court, —and therefore a contempt which did not permit a summary punishment. Section 2172 of the Code of Civil Procedure provides that, when a contempt not in the presence of the court is committed, an affidavit shall be presented of the facts constituting the contempt. Upon the affidavit an order to show cause may be made. (Code of Civil Procedure, Section 2173). When the person upon whom the order to show cause is served appears, the “court or judge must proceed to investigate the charge” (Code of Civil Procedure, Section 2178), and must determine whether the person proceeded against ‘ ‘is guilty of the contempt charged” (Code of Civil Procedure, Section 2179). These provisions of the Code plainly disregarded, should have been followed; for, as was said in Batchelder v. Moore, 42 Cal. 412, 1‘the power of a court to punish for an alleged contempt of its authority, though undoubted, is in its nature arbitrary, and its exercise is not to be upheld, except under the circumstances and in the manner prescribed by law. It is essential to the validity of proceedings in contempt, subjecting a party to fine and imprisonment, that they show a case in point of jurisdiction within the provisions of the law by which such proceedings are authorized, for mere presumptions and intendments are not to be indulged in their support. The statute of this state regulating contempts and their punishments provides that, when the alleged contempt is not committed in the presence of the court, an affidavit of the facts constituting the contempt shall be presented. (Prac. Act, Section 481). If there be no affidavit presented, there is nothing to set the power of the court in motion, and if the affidavit as presented be one which, upon its face, fails to state the substantive facts which in point of law do or might constitute a contempt on the part of the accused, the same result must follow — for there is no distinction in such a case between the utter absence of an affidavit and the presentation of one which is defective in substance, in stating ,the facts constituting the alleged contempt. ” (Galland v. Galland, 44 Cal. 475, 478; Johnson v. Superior Court, 63 Cal. 578, 579; Ex parte Ah Men, 77 Cal. 198, 200, 19 Pac. 380; Boston & M. Consol. Copper & Silver Min. Co. v. Montana Ore Purchasing Co., 24 Mont. 117, 60 Pac. 807.

The practice of beginning contempt proceedings by affidavit, as provided by Section 2172 of the Code of Civil Procedure, is almost universal; and an examination of the authorities will generally disclose that in all contempt proceedings, save for such as are committed in the court’s immediate presence, an affidavit is essential. (4 Am. & Eng. Enc. Pl. & Prac. 779; Rapalje on Contempt, p. 122.) Nothing said by this Court in the case of Forrester and MacGinniss v. B. & M. C. C. & S. Mining Co., 23 Mont. 122, 58 Pac. 40, whether by way of argument or otherwise, was intended, or is to be understood, as a holding that in a proceeding for a contempt the affidavit required by statute need not be presented.

' The relator was entitled to notice of the alleged contempt in order that he might be afforded an opportunity to prepare his defense; and, even in cases where the alleged contempt consists in the violation by a party of an order made in a civil suit still pending, it is held — and, in our opinion, correctly held — that such party is entitled to a separate and distinct notice of the proceeding. ( Worcester v. Truman, 1 McLean, 483, Fed. Cas. No. 18,043; State v. Matthews, 37 N. H. 450; Ex parte Kilgore, 3 Tex. App. 247; Ex parte Langdon, 25 Vt. 680; Ex parte Ireland, 38 Tex. 344; Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914; Code of Civil Procedure, Sec. 2173.)

Proceedings in constructive contempt are criminal in their nature. (Ex parte Gould, 99 Cal. 360, 33 Pac. 1112, 21 L. R. A. 751.) Relator should have been accorded the inalienable privilege of being heard in his defense; for no proposition can be more clearly established than that a man cannot incur the loss of liberty or property for an offense by a judicial proceeding until he has had a full opportunity of meeting the charge against him. In Galpin v. Page, 18 Wall. 350, 21 L. Ed. 959, the court said: “It is a rule as old as the law, and never more to be respected than now, that no one shall be personally bound until he has had his day in court, by which is meant, until he has been duly cited to appear and has heen afforded an opportxmity to he heard. Judgment without such citation and opportunity wants all the attributes of a judicial determination; it is judicial usurpation and oppression, and can never be.upheld where justice is justly administered. ’5 ‘ ‘Wherever one is assailed in his person or his property, there he may defend; for the liability and the right are inseparable. This is a principle of natural justice, recognized as such by the common intelligencé of all nations. A sentence of a court pronounced against a party without hearing him, or giving him an opportunity to be heard, is not a judicial determination of his rights, and is not entitled to respect in any other tribunal.” (Windsor v. McVeigh, 93 U. S. 274, 23 L. Ed. 914.) In Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215, the court say: <iThe fundamental conception of a court of justice is condemnation only after hearing. To say that courts have inherent power to deny all right to defend an action, and to render decrees without any hearing whatever, is, in the very nature of things, to convert the court exercising such an authority into an instrument of wrong and oppression, and hence to strip it of that attribute of justice upon which the exercise of judicial power necessarily depends. ’ ’

In disregard of the statute, without notice, without a hearing, without an opportunity to defend, the respondent on March 3d held relator guilty of contempt, and, by way of punishment, refused to hear him on his motion to dissolve the temporary restraining order theretofore issued in said cause.

We will next consider the order of March 30th. The action of the court in failing to grant or deny relator’s motion to set aside the temporary restraining order left that order in force. Between March 3d and March 30th no proceedings for contempt had been taken against the relator. As recited above, plaintiffs, on the hearing of their order to show cause on March 30th, offered their proofs and rested. When relator sought to introduce evidence in his own behalf, he was met with the objection that he had theretofore been adjudged guilty of contempt, and therefore was not entitled to be heard. The court sustained this objection. Belator was denied his right to defend, — his right to introduce evidence, — and was refused a hearing. Counsel for respondent contend that both on the hearing of March 3d and of March 30th relator was in contempt; and that the punishment of the court was in denying relator what he asked as a favor and not as a matter of right. Holding, as we do, that the court was without jurisdiction to inflict any punishment whatever upon relator for his alleged contempt, since he had been denied the rights and privileges granted him by statute and in justice due him, we are not called upon to decide whether the privileges refused him were of favor or of right.

Counsel for respondent contend that the remedy of relator is, not by certiorari, but by appeal. This cannot be true of the order of March 3d, since this order is not appealable, and in making it the court exceeded its jurisdiction; nor, for the same reasons, can this contention be maintained as to the order of March 30th, in so far as that order holds relator guilty of contempt. It appears, however, from the record, that on April 30, 1900, the day the writs of certiora/ri issued out of this court, the court below, in an order which recites the proceedings had on March 30th, granted plaintiffs apt injunction pending the final determination of the action. This order of the court in this regard is evidently based upon the testimony introduced by plaintiffs on the hearing had on the 30th of March and relates thereto. The order granting the injunction is by statute appealable, and on an appeal therefrom to this Court the action of the court below in granting the injunction may be reviewed.

The position we have taken makes unnecessary a consideration of the other questions presented.

The orders of March 3d and of March 30th, in so far as they hold relator guilty of contempt and punish him therefor, are hereby annulled and set aside.


author: PER CURIAM

text:
    TANEY, Respondent, v. VOLLENWEIDER, Appellant.
    [No. 1561.]

      On Motion to Dismiss Appeals.

    [Submitted October 6, 1900.
    Decided October 6, 1900.]

      Appeal and Error — Motion to Dismiss Appeal — Transcript— Contents — Sufficiency—Briefs.

      1. Where plaintiff appealed from a judgment in favor of defendant, and also from an order denying a new trial, and defendant filed a motion to strike the transcript and to dismiss both appeals, the fact that the transcript did not contain a copy of the order denying the motion for a new trial would not sustain the motion to dismiss, since it in no wise affected the appeal from the judgment, and the motion must be granted or denied as a whole.
    2. Where plaintiff appealed from a judgment in favor of defendant, and aiso from an order denying a new trial, the fact that the transcript aid not disclose that any hill of exceptions or statement on motion for a new trial was settled or certified constituted no reason for dismissing the appeals.

      Appeal from District Court, Deer Lodge County; Welling Nap ton, Judge.

    Action by F. S. Taney against Mary Yollenweidér. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appealed. Motion^ to dismiss appeals.
    Denied.

      Messrs. Duffy ds Casey, for Appellant.

      Messrs. Walsh and James, for Respondent.
   PER CURIAM

— The respondent moves this Court to strike from the files the transcript, and to dismiss the appeals herein, upon the following grounds: (1) Because the transcript does not contain a copy of the order denying the appellant’s motion for a new trial; (2) because the transcript fails to disclose that any bill of exceptions or statement on motion for a new trial have been settled or certified; (3) because there is in the brief of the appellant no assignment of error, as is required by the rules of this Court; (4) because there is in the brief no specification that the court below erred in refusing a new trial; and (5) because neither the transcript nor the brief of the appellant is prepared in the manner and form required by the rules.

It appears from the transcript that the plaintiff appealed from the judgment as well as from an order denying her motion for a new trial. The transcript sets forth a copy of the judgment, but does not contain a copy of the order refusing a new trial. The motion is to strike the transcript and to dismiss both appeals, being directed against the transcript and the appeals as an entirety. The- motion will therefore be granted or denied as a whole.

The first and fourth grounds in no wise affect the appeal from the judgment. Whether the absence of a copy of the order appealed from and the failure to specify as error the refusal to grant a new tri'al would require the dismissal of the appeal from the order is not presented by the motion.

The fact that the transcript does not disclose that any bill of exceptions or statement on motion for a new trial was séttled constitutes no reason for the dismissal of the appeals, and the second ground of the motion is therefore untenable. It is hardly necessary to remark that a different question might be raised by the proper motion, where it made to appear that a bill of exceptions or a statement on motion for a new trial had been duly settled and filed, but was omitted from the transcript.

With regard to the third ground: Examination of the brief inclines us to the opinion that the specifications of error, while not as clearly or as artistically stated as they should be, are nevertheless sufficient (but barely so) to withstand the motion as presented.

The fifth sudivision is not argued, nor is attention invited to any particulars, other than those already adverted to, in which the transcript or brief is asserted to be violative of the rules of this Court.

The motion to dismiss is denied. Denied.

Decided Nov. 8, 1900.]