author: ME. CHIEF JUSTICE BKANTLY

text:
    In re DAVIS’ ESTATE. LEYSON et al., Appellants, v. ROOT et al., Respondents.
    (No. 1,799.)
    (Submitted February 28, 1903.
    Decided March 14, 1903.)

      Probate Proceedings — Jurisdiction of Court — Will Contest— Compromise Agreement — Confirmation — Partial Distribution.

    1. Though the jurisdiction of the district court when exercising its probate powers is, in a sense, special and limited, and depends upon the statute, yet, by implication, it also possesses all the powers incidentally necessary to an effective exercise of the powers expressly conferred.
    2. Under Code of Civil Procedure, Secs. 2320-2382, giving the district court, while exercising probate jurisdiction, power to entertain a contest of a will, the court has power, on consent of all the parties interested, to enter a decree affirming a compromise of such a contest, and ascertaining the share to which the parties are respectively entitled.
    3. Where a contest of a will was settled by agreement of the parties, and a decree entered affirming such agreement, and fixing the shares of the estate to which the parties were entitled as agreed, such decree became the basis of administration as to the devolution of the property, and such parties and their assigns, though not heirs or legatees named in the will, had a right to petition for a partial distribution of the estate under Code of Civil Procedure, Sec. 2833, authorizing such distribution on petition of an heir, devisee, or legatee.
    4. Where a distributee of an estate has assigned his share, and the assignment has been recognized by the court, and is not disputed by the assignor, neither the administrator nor another distributee is interested or has a right to object to such share being paid to such assignee.
    5. Where no receiver has been appointed and the funds in the hands of an-administrator have not been impounded in any way, the fact that there are suits, by strangers to the estate, pending against several of the distribu-tees in which the plaintiffs seek to obtain liens on the interests of the defendants in the estate, and in which the administrator has been made a party, furnishes no reason why the court should refuse to order a distribution of the estate.
    5. Code of Civil Procedure, Sec. 2840, authorizing a suit by persons interested in an estate to determine their distributive shares therein, does not require such suit to be brought where all parties interested have agreed as to the share each is to receive, and a ^decree has been entere^ pursuant to such agreement.
    6. Where, in proceedings for the partial distribution of an estate, it appears that one of petitioning distributees, who applied by attorney, is incompetent, and has no guardian, an order directing distribution to him is erroneous.

      Appeal from District Court, Silver Bow County; E. W. Har-ney, Judge.

    PROCEEDINGS on petition of Henry A. Boot and otters, for the partial distribution of the estate of Andreiv J. Davis, deceased. Erom a decree directing such partial distribution, and from an order denying a new trial, John H. Leyson, administrator with the will annexed, and another, appeal.
    Modified and affirmed.

      Messrs. Forbis & Matiison■, and Mr. B. N. Hanuood, for Appellants.
    Whatever may have been the cause which led to the malting of said order to divide up' said estate contrary to the provisions of the will, in a proceeding to- admit said will to probate, that part of said order is unauthorized by statutory provision and beyond the jurisdiction of said court in the exercise of its probate jurisdiction, and is null and void. (Chadivick v. Chadwick, 6 Mont. 566; In re McFarland's Estate, 10 Mont. 586; In re Higgins' Estate, 15 Mont. 474; State ex rel. Bartlett v. District Court, 18 Mont. 481; State ex rel. Shields v. District Court, 24 Mont. 1; Burns v. Smith, 21 Mont. 252; State ex rel. Kelly v. District Court (Mont.), 63 Pac. 717; Compiled Statutes, 1887, p. 282, Secs-. 30-34; U. S. v. Walker, 109 IT., S. 258; State ex rel. Allen v. Napton, 24- Mont. 450; State v. Wear, Judge, 33 L. B. A. 341; In re Burtons Estate, 93 Cal. 459 ; In re Estate of Dunne, 65 Cal. p. 380; Estate of Letellier, 74 Cal. 311; Alcorn v. Buschke, 133 Cal. 655; Harrington v. LaBocque, 10 Pac. 498; Knowlion v. Johnson, 46 Me. 489; Wood v. Stone, 39 N. H. 572; Holcomb v. Sherwood, 29 Conn. 419; Smith v. Westville, 88 Cal. 374; Ex parte Lange, 18 Wall. 163; Windsor v. McVeigh, 93 IJ. S. 274; In re Phillips' Estate, 18 Mont. 314.)

      Mr. Charles B. Leonard, and Messrs. Clayberg S Gunn, for Bespondents.
    The district courts of Montana, sitting as courts of probate, have no jurisdiction to consider or determine a claim asserted by a third person, a stranger to the estate, against the shares or interests in the estate claimed by any distributee, and such claim cannot be interjected into the proceedings in the estate. {Dray v. Bloch, 45 Pac. 772; McLaughlin v. Barnes, 41 Pac. G2; Hancock v. Hubbard, 19 Pick. 167; Davis v. Newton, 6 Met. 537; Stevens v. Palmer, 15 Gray, 505; Stewart v. Lolvr, 22 Am. St. 150; Snodgrass v. Andrews, 64 Am. Dec. 169; Matter of Estate of Nerac, 35 Oal. 392.)
    The duties of an administrator are to preserve the estate, pay the debts of the deceased, and distribute the remainder of the estate to the parties the court finds tó be entitled to it. He is in no way or manner interested in claims by a third person against the distributees or in disputes between the distributees. {Bates v. Byberg, 40 Gal. 463; Goldtree v. Thompson, 83 O'al. 420; Roach v. Ooffey, 73 Oal. 281; Estate of Marrey, 65 Gal. 287; In re Jessup’s Estate, 80 Cal. 625; People v. Pfeiffer, 59 Cal. 89.)
    Proceedings in distribution are proceedings in rem and can only be attacked on appeal. {The William Hill Go. v. Lawler, 116 Cal. 359; Grew v. Pratt, 119 Gal. 139; GoadY. Montgomery, 119 Cal. 552; Matter of Trust of Trescony, 119 Cal. 568; Jeivell v. Pierce, 120 Gal. 79; Mulcahey v. Dow, 131 Oal. 73; Kearney v. Kearney, 72 Gal. 591; Gunha v. Hughes, 122 Oal. 111.)
    If an administrator obeys the order of distribution made by the court he is protected in such action against all the world. {Cathaway v. Bowles, 136 Mass. 54; Loving v. Stememan, 1 Met. 204; White v. Weatherbee, 126 Mass. 450; Pierce v. Presr cott, 128 Mass. 140; PartlowY. Moore, 56 N. E'. 317.)
    The probate court has jurisdiction on the hearing of a petition for distribution to ascertain and determine, and it must ascertain and determine, who are the persons entitled to the distribution of shares in the estate, and for such purpose can consider only the rights of persons who claim through the estate. {The William Hill Go-, v. Lawler, 116 Oal. 359; In re Oxarart, 78 Cal. 109; In re Jessup’s Estate, 81 Oal. 408; Estate of

      Freud, 134 Cal. 333; Blackburn, v. Webb, 133 Cal. 420; Estate of Blieid, 129 Cal. 172.)
   ME. CHIEF JUSTICE BKANTLY

delivered the opinion of the court.

This matter is before the court upon appeals by John H. Leyson, administrator with the will annexed of Andrew J. Davis, deceased, and by John E. Davis, administrator of John A. Davis, deceased, one of the legatees under the will, from an order of partial distribution and an order denying a. new trial. A brief statement of the proceedings had in the district court up to the making of the order from which the appeal is taken accompanies the opinion delivered upon a motion to dismiss the appeals, made and determined during the December term of this court. (In re Davis’ Estate, 27 Mont. 235, 70 Pac. 721.) The following additional statement, will be necessary to a full understanding of the merits of the controversy:

The first contest over the probate of the will was instituted by Maria A. Cummings, Henry A. Eoot, Harriet E. Sheffield, and Henry A. Davis, the first being a sister, and the others nephews and nieces of the deceased. Pending the controversy John A. Davis, the proponent of the will, died, and John E. Davis, his son and one of the appellants, qualified as his administrator, and was substituted in the contest proceedings in his stead. In order to end the litigation a. compromise was finally effected between the proponent and the contestants named. Under its terms the contest was to be withdrawn, the will was to be admitted to probate, and the contestants were to Receive certain shares of the estate.- On March 27, 1895, an order was made by the court in pursuance of this compromise, and in accordance with its terms the respective shares of the parties Were therein ascertained and declared. Afterward other contests arose. These were finally settled by an agreement to which all the claimants, including the first contestants and the administrator of John A. Davis, deceased, were parties. This agreement was upon application of all parties, approved by the court, and on August 24, 1897, an order was entered which ascertained from the various agreements the names of the persons interested and' their respective shares. The respective shares are set out in the opinion delivered on the motion to dismiss the appeals heretofore cited. Since the order of August 24, 1895, up to the application for the order now under consideration, the administrator has proceeded under the direction of the court to administer the estate upon the basis of that order. The petitioners are Henry A. Davis, Ellen S. Cbmue, a nephew and niece of the testator, Sarah Maria Cummings, a sister, and J oseph A. Coram, assignee of Elizabeth Ladd and Marie Louise Dunbar, nieces of the testator. Subsequent to the filing of the petition Harriet El Sheffield and Henry A. Davis appeared by counsel and joined in the prayer of the petition, as did also Calvin P. Davis, a nephew, Elizabeth S. Bowdoin, a sister, and Harriet Holton, a niece and the successor in interest of Harriet Wood, a sister and one of the distributees named in the order of August 24, 1897. All of the petitioners, except Coram, were parties to some one of the contests', and were found by the order of August 24, 1897, to- be entitled to share in the estate; as were also Elizabeth Ladd and Marie Louise Dunbar, nieces, whose interests Coram claims. During the course of administration certain specific legacies provided for in the will and recognized in the compromise settlements have been paid. All debts due from the estate have also been paid. A large amount of money and property has been distributed from time to- time to the parties named in the order of August 24,1897, or to their assignees. Among these assignees Coram has been recognized as .entitled by assignment to the shares of Elizabeth Ladd and Marie Louise-Dunbar, and has received a large amount of property and money by virtue of his substitution in their stead. To all of these payments John E. Davis consented, receiving* .the proportion thereof belonging to the estate of his father. The petitioners made their application under Section 2835 of the Code of Civil Procedure, which declares that if it appears at the hearing that the estate is but little indebted, and that the share of the party applying may be allowed to him ivithout loss to- the creditors of tbe estate, tbe court or judge must make an order requiring tbe executor or administrator to deliver to tbe applicant tbe net proceeds of his share, or such part thereof as is designated in tbe order, upon bis giving tbe bond required, unless tbe bond bo dispensed with.

1. Tbe main contention of tbe appellants is that tbe order of August 24, 1897, is void so far as it undertakes to recognize tbe right of any of tbe contestants to share in tbe estate,'being-in excess of tbe jurisdiction of tbe court sitting in tbe exercise of its probate powers, and that, being void, it furnished no basis for the order from which tbe present appeal is prosecuted. They say that tbe will itself being admitted to probate furnished tbe only basis for tbe administration of tbe estate, and in undertaking to recognize tbe contestants’ as entitled to. interests therein, and to ascertain and declare such'interests, even though this was done by tbe consent of tbe proponent, tbe court has proceeded without warrant of law. This argument proceeds upon tbe theory that, though tbe district court is one of general jurisdiction, yet, when exercising its probate jurisdiction, its powers are limited by the statute from which they are derived, and unless express authority-can be found in tbe statute for tbe particular order, or part of it which is called in question, it is void, citing State ex rel. Bartlett v. District Court, 18 Mont. 481, 46 Pac. 259; State ex rel. Shields v. District Court, 24 Mont. 1, 60 Pac. 489; Burns v. Smith, 21 Mont. 252, 53 Pac. 742, 69 Am. St. Rep. 653; and State ex rel. Kelly v. District Court, 25 Mont. 33, 63 Pac. 717.

Speaking generally, tbe soundness of this proposition is not controverted. The foregoing eases fully support it; but they are not inconsistent with another proposition of equal weight and importance: that, though the jurisdiction of tbe court when exercising its probate powers is, in a sense, special and limited, and depends upon tbe statute, yet, by implication, it also possesses all tbe powers incidentally necessary to an effective exercise of tbe powers expressly conferred. This, must be tbe case. Otherwise tbe court would be unable to discharge its very important functions. Touching- its powers in respect of executors and administrators, the proper function of tlie court is tlie control of tlie devolution of property upon the death of its owner. All questions of law and fact which necessarily arise from the inception of tlie proceeding down to- and including the distribution of tlie property must necessarily fall within the purview of this power of control. Hence, having the express power to entertain a contest of a will (Sections 2320-2382, Code of Civil Procedure), it has power incidentally to decide any question which properly arises upon such contest, and, necessarily, upon consent of all the parties interested, to enter a decree affirming and adopting a compromise of such a contest., and ascertaining the shares to which the parties are respectively entitled, as was done in the present case. This proposition seems too clear for argument. It would be intolerable if it were the law that a court could entertain a controversy and vet have no power, upon a settlement by compromise of all the parties interested, to- ratify such settlement and thus end the controversy. By this statement we do> not mean .to imply that under our system the court, in the exercise of its powers in matters of probate, may consider and determine collateral questions. The validity of claims of creditors against the estate, when disr puled by the executor or administrator, or disputed claims asserted by him against third persons, or claims of such third persons against creditors, heirs, legatees, devisees, or distrib-utees, must, if an adjudication be necessary, be tried by the court sitting as a court of general jurisdiction, and in an action brought for that purpose, the power to determine such questions, either not being conferred by statute, or, as in cases of disputed claims against the estate and the like, the power of adjudication being expressly otherwise provided for. (Section 2608, Code of Civil Procedure.) Therefore the validity of disputed assignments of a distributive share, or legacy, or devise, cannot be tried or determined by a court sitting in probate proceedings. This is a collateral question; but when there is no dispute, as where the party entitled gives his consent, there is no1 reason, upon principle, why the court may not recognize and give it effect. The order of August 24, 18 9 Y, was therefore clearly a. proper order to make. Tlie court bad jurisdiction of tbe subject-matter and. of the parties, and its action in the. premises is not open to question either by the administrator or by one of the parties at whose instance the order was made.

2. The point is made that the court had no jurisdiction to make the order, because, under Section 2835, supra, it has no power to entertain the petition for partial distribution unless it be presented by an heir, devisee, or legatee, and that none of the petitioners fall within any of these classes. It is argued that the record shows that none of the petitioners-, other than Coram, fall within the terms of the statute, since they are not named in the will, and that, being at most but assignees of the interest they respectively claim under the compromise agreement, they are strangers to the record. Coram, it- is said, is confessedly an assignee of persons who are occupying the same position as the other petitioners, and as to him, in any event, the court had no power to entertain the petition. What has already been said disposes of this contention. The petitioners, other than Coram, are in effect distributees. The order of the court admitting the will to probate under the compromise agreements, amounted to a recognition of the wil-1 only so far as it preserved the provision therein touching the specific bequests, and permitted the estate of the proponent to receive a greater proportion of the testator’s estate than it would have been entitled to had he died intestate. The order itself became the basis of administration and controlling as to the devolution of the property. In effect it became the will under tire agreement of the parties, each one becoming entitled tó just such a share- of the estate as he would have been entitled to had he been mentioned as- a legatee or devisee to the same e<xtent. The assignment to Coram by Elizabeth Ladd and Marie Louise Dunbar was not disputed by either of them. It had theretofore been recognized by the court. Distribution had been made to Coram. He had, therefore been, in effect, substituted in the stead of his assignors, and had all the rights rvhich such substitution implied. It did not lie in the mouth of the administrator to question the substitution. There were no creditors whose interests lie was bound to protect, and tlie order directing payment would be bis warrant therefor. Nor could the administrator of John A. Davis question it. It was no concern of either of them so long as the assignors did not complain.

3. The answers of the appellants to the petition admitted the' material allegations contained in it, but set up, among other things, the pendency of certain suits in the district court of Silver Bow7 county and in the circuit court of the United States for the Ninth circuit to vdiich the administrator, Leyson, had been made a party, as reasons why the petition should be denied. During the progress of the hearing Leyson, the administrator, asked leave to file a supplemental answer setting up these matters more fully, and pleading other grounds of objection of the same character. This application was denied. Thereupon evidence was offered by him and admitted without objection showing the pendency of some of these actions and the existence of the other facts alleged, but upon objection excluded as to others. So far as we are able to determine from1 the record before us none of these matters were material. One of the actions pending in the district court of Silver B'ow county, entitled Eva A. Ingersoll, Administratrix, etc., against Henry A. Boot et al., was brought for the purpose of recovering a balance of a claim of $95,000, alleged to be due the estate of Robert J. Ingersoll, deceased, for services rendered as an attorney to the defendants named therein in defeating the probate of the will, and to have the judgment recovered declared a lien upon the shares, among others, of Root, Coram, Ladd, Cornue, Dunbar, and Cummings. In the prayer of the complaint the plaintiff asked for the appointment of a receiver to* take charge of the distributive shares of these petitioners and to hold them for the purpose of applying them to the payment of the judgment recovered in the action. The administrator is made a party defendant; but there is nothing in the record tending to show that any receiver has been appointed, or that the shares thus sought to be reached are impounded in any way in the hands of the administrator. Upon this showing the administrator may safely pay the shares due the petitioners, for it is no concern of his what are the merits of that action. The court could not, upon this proceeding, pass upon the validity of the claims alleged by the plaintiff or the right of the Ingersoll estate to a lien upon them in the administrator’s hands. The record does not show the nature of the other suit pending in that court, further than it was not brought by a creditor to recover a claim against the estate. It therefore furnished no reason why the court should not make the order prayed for.

The action pending in the "United States circuit court was brought by one Erwin Davis against John E. Davis, administrator of John A. Davis, and distributees of the estate of Andrew J. Davis, other’ than petitioners', to- determine conflicting claims to- the distributive shares of the defendants named there1in under certain contracts made by John A. Davis in his lifetime. Erwin Davis is a stranger to the estate of Andrew J. Davis. Whatever may be the merits, of this controversy, they do not affect the interests' of the petitioners, because petitioners are not parties to that suit and the existence of the controversy was a fact wholly immaterial to be considered in this proceeding.

4. It is argued that the court had no authority to- make the order because it does not appear that any suit has ever been brought under the provisions of Section 2840' et seq. of the Code of Civil Procedure to determine the rights of the petitioners to distributive' shares in the estate. The position assumed by the appellants is that this section of the statute is exclusive, and that no distribution can be had until such suit has been.tried and determined. This position is untenable. Section 2840 .does not require that such a suit should be brought as a condition precedent to an order of distribution. If the rights of the petitioners have otherwise been ascertained, as was done in this case by the compromise agreements, and the order of August 24, 1897, made in pursuance thereof, there is no necessity for such suit. After the estate has been in process of settlement now f pr some thirteen years, and all the petitioners have been recognized as distributees since the date of the order referred to, the objection that their rights have not been determined by a proceeding instituted for that purpose is, to say the least, somewhat capricious.

5. Though the administrator did not make the formal objection that Calvin P. Davis was an insane person,-and therefore could not petition for his distributive share, the hearing Was conducted as if this issue was presented, and evidence sufficient to make out a prima facie case of incompeteney was introduced in the form of a certified judgment of the superior court of Sonoma county, C'aL, the place of petitioner’s residence. His application was made by attorney. The order, in so far as it directed distribution to him, is erroneous. He should have appeared by guardian. As he did not, there was no competent person asking for a distribution in his behalf. The order must therefore be modified in this respect.

Many other points are presented in the briefs of counsel, but ■ none of them are of sufficient merit to demand notice’.

The district court is directed to modify the order by omitting therefrom any direction as to the share of Calvin P; Davis, and when so modified it will stand affirmed. The order refusing a new trial is also affirmed. The appellants will, pay the costs of appeal.

Modified and affirmed.


source: Caselaw Access Project

author: ME. JUSTICE MILBUEN

license: Public Domain

text:
    HUGHES et al., Respondents, v. ROWAN et al., Defendants. ROWAN, Appellant.
    (No. 1,481.)
    (Submitted February 26, 1903.
    Decided March 14, 1903.

      Removing Cloud on Title — Evidence—Attempt to Compromise.

    1. In an action to remove a cloud from the title to a mining claim, plaintiff averred that defendant had no interest therein. On direct examination he testified that he knew of defendant’s asserted claim of an interest two years before he brought suit, and that an exchange of deeds between him and defendant had been made to enable plaintiff to perfect his chain of title so that he could secure a patent from the government, and with th'e understanding that the deeds should not transfer any interest. On cross-examination he testified that he had not attempted to purchase defendant’s interest, nor authorized his attorney to endeavor to do so; that he told his attorney that he would rather settle the matter than have a lawsuit; that, in response to the attorney’s proposition whether he should see if defendant would settle for what it would cost to have a lawsuit, witness said, “Xes and that-defendant wanted $5,000. Held* that this testimony went to the credibility of plaintiff, he having averred that defendant did not own any interest or share in the property, and was improperly stricken out.
    2. Plaintiff was asked if he did not authorize his attorney to endeavor to purchase defendant’s interest. Held, error to sustain an objection to the question as disclosing an attempt to make a compromise, for it might have appeared, if the question had been answered, that it was an attempt on plaintiff’s part to purchase defendant’s claim outright.

      Appeal from. District Court, Silver Bow County>; William Clancy, Judge.

    AotioN by John Hughes and others, executors of the will of Stephen Hughes, deceased, against Thomas Eowan and others. Judgment for plaintiffs. From, the judgment and from an order denying a motion for a new trial, defendant Eowan appeals.
    Beversed.

      Messrs. Mediation & Cotter, for Appellant.
   ME. JUSTICE MILBUEN

'delivered the opinion of the court.

The plaintiffs brought this action to remove an alleged cloud upon their title to the Copper Bottom, quartz lode claim, situate in Silver Bow county. It is alleged in the second amended complaint, upon which the case'was tried, that in 1888 James Eraser and William T. Bobbins located the claim and became the owners thereof in common. Plaintiffs aver that Eraser and Bobbins executed and delivered to one Thomas McCale a deed for an undivided one-third interest in the property, which instrument was lost without having been recorded, and that Mc-Cale conveyed this one-third interest to the plaintiff James Hughes. Thus, the plaintiffs allege, they, having had conveyed to them the other interests, acquired complete title to the whole property. They further allege that on the 23d day of December, 1892, after tbe making of the deed from McO'ale to Hughes, Fraser wrongfully and fraudulently made, executed and delivered to the defendant Rowan a deed for an undivided one-sixth interest in the property, and that this deed did not, in law or faet, convey any title, for the reason that Fraser did not own any part of the realty at the time of the making of the last-mentioned deed, and that said deed casts a cloud upon the title of the plaintiffs. It is alleged further that the deed from Fraser to Rowan was made without any consideration, and that before the time of execution thereof Rowan well knew that Fraser did not own the property, or any part thereof, or any interest therein, and that Rowan had actual and constructive notice of the execution and delivery of the deed previously made by Fraser and Robbins to McCale, and of the one from McCale to James Hughes; and, further, that the deed from Fraser to Rowan was made for the use and benefit of Fraser himself. Subsequently the plaintiffs applied to the Hnited States for a patent to the claim in controversy, and, being required to furnish a complete abstract of title, this abstract, when furnished, failed to show a deed executed from Fraser and Robbins to' Mc-Cale, but did show that Fraser had conveyed to Rowan. The proceedings being thereby obstructed, it is alleged that for the purpose of expediting the issuance of the patent defendant Rowan, on the 29th day of December, 1892, without any consideration, conveyed to the plaintiff James Hughes, by deed, an undivided one-sixth intei’est in the real estate for the purpose of aiding in the procuring of a patent to the plaintiffs; but plaintiffs allege that this deed did not in law or equity convey any right or title whatever. It is further alleged that, at the very time of the making and delivery of the last-mentioned deed, the plaintiff Hughes executed and delivered to said Rowan a deed reconveyihg the’undivided one-sixth interest; these two deeds were delivered at one and the same time, one in exchange for the other, and it is claimed by plaintiffs that the deeds were, each of them, made and delivered without valuable or any consideration. The deed from Rowan to Hughes recites, among other things, that the conveyance was made “in trust for tlie purpose of applying for a United States patent thereon.” The deed from Hughes to Rowan contains this participial phrase: “It being tho intention of the said party to reconvey to tho said second party an undivided one-sixth interest of, in, and to the said claim, which said interest hasi this day been convoyed to the said first party for the purpose of applying for a patent thereon.” The defendant Rowan appeared and demurred to the amended complaint, ■ one ground of demurrer being that the complaint did not state facts sufficient, to constitute a cause of action, or to entitle the plaintiffs to the relief ashed. Tho cause having been tried upon the issues joined before tho court, a jury having been expressly waived, findings of fact and conclusions of law were made and found in favor of the plaintiffs, and a decree entered accordingly. From the judgment, and an order denying a motion for a new trial, defendant Rowan appeals. Respondents did not file a brief or appear to argue this case on appeal.

The overruling of the demurrer to the complaint is not mentioned in the brief of counsel or relied upon as error, and whatever views we may have upon this- point, not presented, we refrain from expressing. Besides the point raised as to laches of the plaintiffs, suggested in alleged error No. 2, which point lias nothing in support of it to make it worth our consideration, 1ho only errors relied upon and mentioned in the brief, and properly presented in the argument so that we can consider the same, are those numbered 7 and 8, to-wit: “The court erred in sustaining plaintiffs’ objections, to the questions asked the witness Tames Hughes on cross-examination;” and: “The court erred in sustaining plaintiffs’ motion to strike out certain evidence of tho said witness” — reference being mado pointedly to tho transcript.

It appears in the testimony, and is averred in the complaint, that the plaintiff Tames Hughes, in. order to procure a patent from' the government, his chain of title appearing deficient, five days after the recording of the deed from Fraser to. Rowan solicited and procured from Rowan the deed above referred to for the one-sixth interest, and on the same day reconveyed to Rowan, in manner and form as above suggested, the same interest. In his direct testimony he testified that at the time of the mailing of these two deeds the understanding between him and Rowan was that they should not transfer any -interest, but should leave the interests as they were before the deeds Avere made. On cross-examination he testified that he Avaited until the 1st of July, 1804, before commencing chis action, and that it Avas not a fact that he tried to buy this interest during the interval, meaning betAveen the 29th (lav of December, 1892, and the 1st day of July, 1894. Witness stated that- he kneAV on the 29th of December 1892, that Mr. RiOAV'an claimed to oavii this one-sixth interest. He also stated that he’did not authorize his attorney, Mr. AValsh, to go-to RoAvan and try to buy it before this suit Avas begun, and that he did not authorize any one else to do so-; that Mr. AValsh Avas his attorney, and represented him in the matter part of the time. AVitness. had a conversation with Mr. AA^alsh before he commenced this suit, Avith reference to an attempt to purchase the share Avhich Rowan claimed, and told his counsel that he would. sooner settle it than have a law-snit; that Mr. AValsh made a proposition to him (Avitness), and said: “I Avill see Mr. RoAvan, and if he Avants to settle it for Avliat it Avonld cost to have a lawsuit” — and Avitness said “Yes;” that Mr. AA^alsh Avont to- Mr. Rovvan, and Mr. RoAvan Avanted $5,000. AVherenpon, further pursuing the cross-examination, counsel for Mr. Row;an asked: . “You did authorize Mr. Walsh to go to him and try to purchase this interest?” Counsel for the plaintiffs objected to this question “as. incompetent, irrelevant, and not proper cross-examination,” and asked “that this evidence be stricken out, as to an offer to compromise the suit;” which motion Avas granted, defendant Rovvan saving an exception to the ruling of the court.

Tlie court erred in striking out this testimony of Mr. Hughes in regard to the negotiations with Mr. Rowan, and in sustaining the objection to the question last above stated. In the- light of the fact that the suit was to remove an alleged cloud upon the title of the plaintiffs, cast by the deed from Eraser to- Rowan and the deed from witness Hughes to Rowan, it is difficult to understand why tbe court would strike out any testimony sc relevant, and touching, as it did, upon the relations between the two parties. It certainly went to the credibility of Mr. Hughes, he having averred that Rowan did not own any interest or share in the property.

The court erred in assuming, without giving an opportunity for all the facts to come out on cross-examination, that this was an attempt to make a compromise'. For all that the court knew it might have been disclosed, by permitting the ques answered, that it was an attempt on the part of Hughes to purchase outright the claim of Rowan, and not to compromise for the sake of preventing the expense and annoyance of a lawsuit. We cannot say that the answer to this question, if it had been made, Would not have properly influenced the court to1 find in favor of Rowan. Considering, the inconsistent acts of the principal plaintiff, James Hughés, in dealing with Rowan to procure a deed from him for an interest which he swears he knew Rowan claimed — and this a year or twO1 before the suit was commenced — 'the defendant Rowan certainly had the right to thoroughly cross-examine Mr. Hughes as to the full nature of the negotiations with Mr. Rowan, especially as the witness stated, in his testimony which was stricken out, that he had a conversation with Mr. Walsh before commencing suit, with reference to an attempt to purchase the claim. If the negotiations were in fact in the nature of a compromise, of course Mr. Hughes could not be, in law, prejudiced thereby; but it might have turned out upon cross-examination that it was an attempt to buy with the recognition of the ownership of Rowan.

As the cause must go back for a new trial, it is regrettable that, other points suggested are not properly presented in the brief, so that this court could pass upon them. Reversed and remanded.

Reversed and remanded.


author: MB; JUSTICE HOLLOWAY

text:
    METZ, Respondent, v. CITY OF BUTTE, Appellant.
    (No. 1,475.)
    (Submitted February 25, 1903.
    Decided March 14, 1903.)

      Municipal Corporations — Defect in Sidewalk — Negligence— Presumptions — Evidence—Instructions.
    1. Where a sidewalk at a certain place was about five inches higher than the ordinary grade of the sidewalk, and plaintiff was injured in stepping- down from such elevated portion in the nighttime, in an action against the city for the injury defendant sought a nonsuit on the hypothesis that, the sidewalk having been constructed by the city officials, it was to be presumed that it was constructed on a general plan adopted by the city, and that plaintiff must show tnat the elevation actually constituted a defect. I-Ield3 that no such presumption could be indulged in in the absence of an3r evidence to show the sidewalk at that point built on a general plan.
    2. In an action against a city for injuries owing to a defective sidewalk, witness could not state as to whether, in his opinion, the sidewalk was reasonably safe ; it being a question for the jury to determine whether or not the sidewalk was defective.
    3. Where the court instructed that if the city, by its officers, had notice of the defect, which was a dangerous one, the city was liable for any damages on account thereof, such instruction was not erroneous on the ground that it eliminated contributory negligence, where other instructions clearly told the jury that contributory negligence would preclude recovery.

      Appeal from District Court, Silver Bow County; Henry C. Smith, Judge.

    Action by JLou Metz against the city of Bntte. From a judgment for plaintiff, and from an order denying’ a motion .for a new trial, defendant appeals.
    Affirmed.

      Mr. Edwin M. Lamb, for Appellant.
    If there was a dangerous defect in the sidewalk on thp street at the point complained, of it was due to the fact that the plan adopted by the defendant for the construction of the sidewalk was dangerous and unsafe, for the sidewalk existed at the time of the injury as originally constructed. (Cordon v.' City of St. Paul 12 N. W. 1013.)
    There was no evidence that' a. defect existed in the walk complained, of. It is true, as shown by the testimony, that plaintiff was injured, but “the jury are not to infer a defect on the highway at a particular time and place merely from the fact that an injury was sustained at that time and place.” (Church v. Cherry field, 33 Me.. 460; Collins v. Dorchester, 6 Cush. (Mass.), 396; Morgan v. City of Lewiston, 40 Atl. 515.)
    A witness may give his opinion when the subject of the inquiry is so indefinite in its nature as not to be susceptible of direct proof. (Bice on E'v., Vol. I, page 357.)
    If different persons, upon the facts, might have different opinions as to the condition of the street for safety, the city ought to have the benefit of the doubt. The presumption is in favor of the city. (Could v. Toyelm, 32 Kan. 485.)

      Messrs Mediation & Cotter, for Bespondent.
   MB; JUSTICE HOLLOWAY

delivered the opinion of the court.

This action ivas commenced in the district court for Silver Bow county by the plaintiff, Lou Metz, against the city of Butte, to recover damages for personal injuries alleged to have been suffered by the plaintiff by reason of the negligence of the defendant in permitting a dangerous defect to be and remain in a sidewalk along one of the streets of the city, in consequence of which the plaintiff, without fault or negligence on her part, fell, and seriously injured herself. The uneontroverted facts are that Quartz street, in Butte, is one of the principal thoroughfares in that city; that it runs east and west, crossing Main street and Alaska street at right angles; that on the north side of Quartz street, about half way between Main and Alaska streets, the city, in 1894, erected a building for a hosehouse; that the grade of the street is quite steep, descending from Main street west; that at the southwest corner of the hosehouse there is a step or offset about five inches high, extending across the sidewalk; that along this walk a great many pedestrians travel both during the daytime and at night; and that the step or offset was known to the building inspector and assistant street commissioner of Butte long prior to the date of the plaintiff’s injury. Upon the trial the plaintiff introduced evidence tending’ to prove the injury suffered by her, the character and extent of it, the fact that it was caused by her stepping off of the step or offset in the sidewalk while traveling- along the walk after night, when it was very dark; that no light or signal was placed by the city at the point in the walk where the step or offset occurs; and that she had no knowledge of its existence until the time of the accident. The witness Kemp, for the plaintiff, testified that in 1894 he was sanitary inspector of Butte; that the sidewalk, a.t the point where the step or offset occurs, was constructed in that year under the directions of the building inspector of Butte, who' drew the plans for the hcsehouse; that the southeast corner of the hosehouse was put on the established grade of the street; that the southwest corner was from 14 to 18 inches above that grade; that in constructing the sidewalk in front of the building to correspond somewhat with it and the slope of the street the walk was placed considerable above grade, necessitating the step or offset in order to connect with the adr joining walk; and that the -walk had been left in that condition ever since 1894. At the close of plaintiff’s case the defendant interposed a motion for a nonsuit upon the ground that the evidence does not show that the sidewalk at the place where the plaintiff fell and received the injuries complained of was not in k reasonably safe condition for persons traveling over the same and using reasonable care, but does show the contrary to be the fact. This motion was overruled. In presenting its defense, the attorney for the city asked the witness Sanfield if, in his opinion, the walk at the point where, tire step1 or offset appears was reasonably safe for pedestrians using ordinary care and diligence in passing over it. Upon objection by the plaintiff, the testimony was excluded. By agreement of the parties the jury visited and inspected the sidewalk at the point where the step> or offset occurs. Among others; the court gave to the jury instruction numbered Y, which reads as follows: “You are instructed that if you find from the evidence that the city, by its officers, viz., street commissioner or his assistant, or either of them, had notice of the existence of the step in the sidewalk at the point complained of at and prior to the time of the alleged injuries to the plaintiff, and if yon find that the existence of sncli step in the said sidewalk was a dangerous defect therein, then such notice to said officers, or either of them, would be notice to the city, and the city would be liable for any damages sustained by plaintiff on account of the existence of such defect, if you find from the evidence that the same was a defect.” The jury returned a verdict in favor of the plaintiff for $3,000 damages. From a judgment for that amount and costs, and from an order overruling defendant’s motion for a new' trial, this appeal is prosecuted.

■The defendant contends that there is no evidence in the record showfing or tending to show that the sidevnlk where the plaintiff fell was not reasonably safe for any person exercising due care to- pass over it, and therefore the motion for nonsuit should have been granted. This is urged upon this court upon the hypothesis that, the sidewalk haying been constructed by the city officials, it is to be presumed that it was constructed upon a general plan adopted by the city for the construction of its sidewalks; and that, even though'the plan may be defective, the judgment of the city officials upon that question must be deemed conclusive here; that it is incumbent upon the plaintiff to show something more than the condition of the walk, the fact of her having been injured by reason of the alleged defect, and the character of her injuries; that she must show affirmatively by evidence that the step or offset actually constitutes a defect in the walk; and that, having failed to do this, the court should say, as a matter of law, that no defect has been shown to exist. With this contention we cannot agree. In the absence of any testimony whatever upon the subject, we cannot say that any presumption is to be indulged that the sidewalk at the point in question was built upon any general plan adopted by the city for that purpose-. But, on the other hand, the witness Kemp, for the plaintiff, testified that the walk at the point in controversy was actually built above the established grade adopted by the city for its. sidewalks.

Neither do we tbinlc the district court erred in sustaining the objection to the question asked the witness Sanfield. All the facts and circumstances being before them, it was a question for the jury to determine whether or not the step or offset in the sidewalk constituted such a defect that the city, in the exercise of ordinary care and prudence* should have remedied. In Leonard v. City of Butte, 25 Mont. 410, 65 Pac. 425, this court held that, where the evidence showed that the sidewalk was composed of flagging, some part of which was so- smooth that passers-by were frequently failing, it was a question of fact for the jury to say whether or not the walk was defective. In City of Centralia v. Baker, 36 Ill. App. 46, it was held that it was a question of fact for the jury to determine whether or not a walk was defective, where the evidence merely showed that one board had become warped by the sun so that it projected above the general level of the walk, thus presenting an obstruction against which passers-by were liable to stumble and- fall. In Town of Watertown v. Greaves, 50 C. C. A. 172, 56 L. R. A. 865, 112 Fed. 183, the circuit court of appeals for the First-circuit had under consideration precisely the same question as presented by this record, and held that, where thei evidence showed a difference of three inches in the height of two- adjoining portions of the walk, it was a question for the jury to- say whether there was. a defect in the walk. To the same effect are the decisions in Tabor v. City of St. Paul, 36 Minn. 188, 30 N. W. 765; Redford v. City of Woburn, 176 Mass. 520, 57 N. E. 1008; Lamb v. City of Worcester, 177 Mass. 82, 58 N. E. 474.

Exception is taken to instruction No. 7 given by the court, in that it is contended that the jury was told, if they found that the officers of the defendant city had notice of the existence of such step- prior to- the date of the plaintiff’s injury, and if they further found that such step’ constituted a defect, then notice thereof to such officers was notice to the city, and the city would be liable to respond in damages for injuries sustained by the plaintiff by reason of such defect. Complaint is made -that under this instruction the plaintiff could recover even though she had been guilty of contributory negligence. Standing alone, this instruction might be open to the criticism made upon it, but no court is presumed to state all the law of a case in one instruction, and, taken in connection with other instructions given, notably No. 6, in which the jury was told that the plaintiff could not recover if guilty of contributory negligence, we are of the opinion that the objection to the instruction complained of is not well founded, and that the district court gave to- the jury all matters of law necessáry for their information in rendering a verdict.

We have examined the other errors assigned, and find no merit in them.

The judgment and order appealed from are affirmed.

Affirmed.

Me. Justice MilbuuN, being ill, did not hear the argument and takes no part in the foregoing decision.


author: TI-IE HONORABLE J. M. CLEMENTS, Mr. Justice Pigott,

text:
    REINS, Respondent, v. KING, Appellant.
    (No. 1,442.)
    (Submitted April 15, 1902.
    Decided March 14, 1903.)

      Mining Claim, — Location, — Adverse Claim — Appeal—Assignments of Error — Costs—Memorandum—Striking Out.

    1. When the plaintiff in an action to determine an adverse claim to a mining claim had located the claim in 1893, and defendant claimed to have located it in 1896, and the court found that defendant made no valid location of the claim, errors, if any, in ruling on the admissibility of evidence as to a location and working of the claim by a third party prior to plaintiff’s location, were immaterial.
    2. Where assignments of error in rulings as to the admission of evidence do not refer to the page of the transcript where the matters are to be fonnd, the assignments will not be considered.
    3. under Code of Civil Procedure, Section 1867, providing that “a party in whose favor judgment is rendered, and who claims his costs, must deliver to the clerk and serve on the adverse party a memorandum of the items of his costs and disbursements within five days after the verdict or notice of the decision,” where plaintiff did not serve such memorandum until eight days after a decision in his favor, and the records did not show that he did not have notice of the decision until within five days prior to such service, defendant’s motion to strike out the memorandum of costs should be sustained.

      Appeal from District Court, Silver Boiv County; John Lindsay, Judge.

    ActioN by John- P. Reins against Silas P. King. From a judgment in favor of plaintiff, and from an order overruling’ a motion to strike out plaintiff’s memorandum of costs, defendant appeals.
    Modified and affirmed.

      Messrs. Mediation cG Cotter, for Appellant.

      Messrs. Stapleton & Stapleton, for Respondent.
   TI-IE HONORABLE J. M. CLEMENTS,

one of the District Judges of the First Judicial District, sitting in the place of the Chief Justice, delivered the opinion of the court.

On the 13th of March, 1893, the plaintiff located the Combination lode claim in Summit Valley mining listi’ict, Silver Bow county. On the 12th of February, 1896, the defendant located the Boomerang lode claim, which included a portion of the ground covered by the Combination lode claim. On August 25, .1897, the defendant made application for a patent to the Boomerang claim. On October 13, 1897, plaintiff filed in the Hnited1 States land office at the city of Helena his adverse claim to the ground in conflict under the two locations. ■ This suit was brought to determine such adverse; claim. The cause was heard by the. court sitting with a jury. Special findings were submitted to the jury, but no -general verdict. Both parties moved the court to reject certain of the findings and adopt others. The court made certain findings of fact and rendered judgment in favor of plaintiff.

Among other findings of fact the court found that the defendant made no valid location of the Boomerang lode claim, for the reason that the whole of the land attempted to be located was then covered by the Combination lode claim, and also that he failed to make a discovery of quartz in place bearing gold, silver, copper, or any other precious metal or deposit; also that he failed to mark the boundaries as required by law.

The defendant alleged in his answer, as an affirmative defense, that on March 9, 1881, one Henry G-. Dahl located the ground in controversy as the Betsy Dahl lode claim, and that at the time the plaintiff located the Combination lode claim the Betsy Dahl was a valid existing location. This the plaintiff denied in his replication, and alleged that at the time he located the Combination claim on March 13, 1893, the Betsy Dahl claim had become forfeited by reason of the non performance of the annual assessment work on the same for the year 1892, and was, therefore, public, unoccupiéd mineral land of the United States-. Upon this issue the defendant introduced in evidence the affidavits of the persons who performed work and made improvements upon the Betsy Dahl claim in 1892 to the effect that the value of the work and improvements was $115.50. The plaintiff introduced evidence to the effect that the value of the work and improvements done and made on the Betsy Dahl claim in the year 1892 was much less than $100. The defendant then offered to prove the value of the work and improvements to be more than $100. The court refused to permit the defendant to introduce the proof offered, to which action of the court the defendant excepted, and assigns as error.

On this issue the court found that the Betsy Dahl claim was forfeited and became vacant and open to location by others on January 1, 1893, by reason of the failure of D'ahl and his co-owners to do or to have done the necessary representation work thereon for the year 1892.

While the finding on this issue might have been different had the court permitted the introduction of the proof offered by the defendant, inasmuch as the court found that the defendant failed to make a valid location of the Boomerang claim on the 12th of February, 1896, in that he failed to make a proper discovery of minerals, and failed to properly mark the boundaries of his claim, it becomes immaterial whether or not the Betsy Dahl claim was properly represented in 1892. Whatever merit there might otherwise be in this assignment of error, it can avail the defendant nothing, in view of the finding of the court that he failed to initiate a valid location of the Boomerang claim in February, 1896. The court having found against the defendant on that issue, it would make no difference, so far as the rights of the defendant are concerned! in this action, whether the ground was or was not unappropriated mineral land on March 13, 1893, when the plaintiff initiated his location of the Combination claim. And, there being a conflict of testimony on the issue as to whether the defendant initiated a valid location of the Boomerang claim in February, 1896, there appears no reason for disturbing the finding of the court in that regard.

Appellant assigns as error the action of the court in sustaining and overruling various objections to the introduction of testimony, which, in most of the instances, relate .to the value of the work performed on the Betsy Dahl claim in the year 1892, and in none of the assignments of error is the page of the transcript indicated. This court cannot search the record for sueh matters as are not referred to by the page of the record where the matters may be found.

Defendant also appeals from the order of the court overruling his motion to tax the costs in the action. The record shows that on August 22, 1898, the court made and filed its findings of fact and conclusions of law, and ordered judgment in favor off the plaintiff; that thereafter, on August 30, 1898, plaintiff filed his memorandum of costs. Section 1867 of the Code of Civil Procedure provides that a party in whose favor a judgment is rendered, and who claims his costs, must deliver to the clerk and serve upon the adverse party, within five days after the verdict or notice of the decision of the court, a memorandum of the items of his costs and necessary disbursements in the action. It appears from the record that the plaintiff’s memorandum of costs was not served until eight days after the decision of the court was made and the judgment entered. As the record discloses nothing to show that the plaintiff had not notice of the decision of the court until within five days prior to the 30th day of August, 1898, the defendant’s motion to strike out plaintiff’s memorandum of costs should have been sustained.

Motion for rehearing filed March 21, 1903;

Nor the reasons herein given, the judgment is affirmed, except as to plaintiff’s costs, and it is ordered that the judgment be modified to that extent.

Each party in this appeal shall pay his own costs on appeal.

Modified and Affirmed.

Mr. Justice Milburn : I concur.

Mr. Justice Pigott,

who heard the argument in this case, having retired from the bench before the determination thereof, takes no part in this opinion.

dismissed April 29, 1903, in accordance with stipulation on file.


author: MB. CHIEF JUSTICE BBANTLY

text:
    BUTLER, Appellant, v. McCORMICK, Respondent.
    (No. 1,484.)
    ON Motion to Dismiss Appeals.
    (Submitted March 16, 1903.
    Decided March 17, 1903.)

      Buies of Supreme Gourt — Appellant’s Failure to File Brief— Dismissal.

    Where appellant has failed to file and serve a brief, as required by Supreme Court Rule X, Subdivision 5, the appeal will, on motion, be dismissed at the costs of the appellant.

      Appeal from, District Gourt, Silver Bow~ County; William Clancy, Judge.

      ActioN by F. H. Butler against John McCormick. From a judgment for defendant, and from an order denying a new trial, plaintiff appeals. Motion to dismiss tbe appeals.
    Granted.

      Messrs. McHatfon & Goiter, for Bespondent.
   MB. CHIEF JUSTICE BBANTLY

delivered tbe opinion of tbe court.

Appeals from a judgment and an order denying a new trial. Tbe defendant (respondent) bas submitted a motion to dismiss these- appeals on tbe ground that appellant (plaintiff) bas failed to file and serve a brief in support of them as required by tbe Bhiles of this Court. Tbe appeals have been pending since August 3, 1899. The Bules (Bule X, Subdivision 5) provide tbat appellants brief must be filed witbin sixty days after the transcript is filed, except wben tbe cause is advanced on tbe calendar, and then in such time as may be fixed by tbe court in tbe order of advancement. No order bas been made advancing tbe bearing; nor bas any brief been filed under the provision of tbe rule applicable. Tbe appeals are therefore dismissed át tbe costs of tbe appellant. (Bule X, Subdivision 5.)

Dismissed.


author: MR CHIEF JUSTICE BRANTLY

text:
    CASEY et al. Respondents, v. THIEVIEGE et al., Appellants.
    (No. 1,487.)
    (Submitted March 17, 1903.
    Decided March 19, 1903.)

      Appeal — Briefs — Compliance with Supreme Gourt Buies— Statement of the Case — Assignment of Errors.

    Where appellant’s brief totally fails in substantial particulars to comply with the requirements of Subdivisions “a” and “b” of Subsection 3 of Supreme Court Rule X, the judgment or order appealed from will be affirmed, without regard to whether the court’s attention is called to the defect in the brief by the adverse party or not.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    ActioN by George H. Casey and others against T. Thieviege and others. J udgment for plaintiffs. From the judgment and from an order denying a new trial, defendants appeal.
    Affirmed.

      Mr. W. C. J ones, Mr. William I. Lippincott, and Mr. Thompson Campbell, for Appellants.

      Messrs. McBride & McBride, for Respondents.
   MR CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Ejectment. Appeals from a judgment in favor of the plaintiffs and from an order denying defendants’ motion for a new trial.

We shall not undertake to investigate the merits of these appeals, for the reason that the brief filed by appellants in support of them does not comply with the rules of this court in two important particulars.

1. It contains no statement of the case in conformity with the requirement of Subdivision “a” of Subsection 3 cf Rule X in that it does not contain “a concise abstract or stater ment of the case;, presenting succinctly the questions involved, and the manner in which they are raised,” with reference to “the page numbers in the transcript in such .manner that pleadings, evidence, orders and judgment may be easily found.” The brief opens with a statement that the action is one in ejectment, but does not refer to the pleadings, judgment, or orders in the case, nor does it inform the court whether there is an appeal from the judgment or order, or both, or even that any appeal has been taken. The fact that the cause is in this court on appeal we find only by reference to the notice of appeal contained in the transcript. The brief contains references to the transcript, but these do not furnish the information contemplated by the rule.

Rehearing denied April 10, 1903.

2. It contains no assignment of errors, as required by Subdivision “b” of Subsection 3 of the same rule, in that, though four errors are assigned upon rulings made by the court in the admission and exclusion of evidence, the assignments neither set out the evidence totidem verbis, nor refer to the page or marginal numbers of that portion of the transcript containing the evidence. This court will not refuse to investigate the merits of an appeal where the brief shows an attempt in good faith to comply substantially with the rules; hut where there is a total failure in substantial particulars, as is the case here, we must exact the penalty by affirming the judgment or order complained of. This has grown to be the settled rule of practice in this court, without regard to whether our attention is called to the condition of the brief by the adverse party or not. (Kranich v. Helena Consolidated Water Co., 26 Mont. 379, 68 Pac. 408, 71 Pac. 672; Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41; Charles Schatzlein Paint Co. v. Godin, 24 Mont. 483, 62 Pac. 819, and cases there cited.) These appeals have been pending in this court since October 10, 1899, and, though the rule has been frequently applied since that time, as the fore1going cases and citations therein show, there has' heen ample opportunity to amend the brief herein, such opportunity has not been improved. We wish again to emphasize the statement that at least a substantial compliance with the requirements of the rules is a necessary prerequisite to the examination of any case upon the merits.

The judgment and order appealed from are affirmed.

Affirmed.


author: MR. JUSTICE MILBURN

text:
    ELLIOTT et al., Appellants, v. MARTIN et al., Respondents.
    (No. 1,483.)
    (Submitted March 16, 1903.
    Decided March 19, 1903.)

      Appeal — Burden of Proof — Immaterial Question — New Trial ■ — Newly Discovered Evidence — Discretion — Rides of Supreme Court — Briefs.
    1. where there is sufficient evidence to support a verdict lor defendants, the question as to which party had the burden of proof is immaterial on appeal, and will not be determined.
    2. It is not an .abuse of discretion to refuse a new trial asked on account of newly discovered evidence, where the moving party neither offers any affidavits of the witnesses nor any excuse for failing to do so.
    3. Alleged errors assigned in appellant’s brief, but not argued by counsel, will not be considered.
    4. The failure of appellant’s brief to comply with the requirements of Supreme Court Rule X, Section 3, warrants an affirmance of the judgment or order appealed from.
    . Appeal from District Court/ Silver Bow County; William Clancy, Judge.

    Action by J. A. Elliott and another against E, W. Martin and others. From a judgment for defendants and an order denying a new trial, plaintiffs appeal.
    Affirmed.

      Mr. Daniel Yancey, for Appellants.
    Upon the defendants rested the burden of proof to establish, by a preponderance of the evidence, the agreement which they plead in defense, and the court should have, so- instnicted the jury. (Code of Civil Proe., Section 3290; Stafford v. Horn-huchle, 3 Mont, 494; Wright v. Stewart, 19 Wash. 179, 52 Pac. Rep. 1020; Dignan v. Spurr, 3 Wash. 309, 28 Pac. Rep. 529; Roach v. Sumers, 20 Wall. 165, 22 TJ. S. 252; N. Penn. R. R. Co. v. Adams, 93 Am. Dec. 617; see, also, 61 Am. Dec. 58, and note 60 ; LeFrane v. Hewitt, 7 Cal. 186; Finn v. Val

      lejo St. Wharf Go., 7 Cal. 254; Simmons v. Oullahan, 75 Cal. 50.8, 11 Pac. Rep. 543.)

      Messrs. Hamilton & Thresherfor Respondents.
   MR. JUSTICE MILBURN

delivered tlie opinion of tbe court

So far as we are able to determine from the statement of the case set out in the appellants’ brief, this appears to be an appeal from a judgment entered in favor of the defendants and from an order denying a motion for a new trial. It appears that the defendants made and delivered to the plaintiffs their certain promissory note for $4,280.70, dated February 10, 1891, and gave as security therefor a 'chattel mortgage upon a certain stock of millinery goods used in trade. Appellants allege that upon default of interest on May 1, 1891, and of a certain in stallment of the principal on May 5, 1891, the sheriff of Silver Bow county, a.t plaintiffs’ direction, took possession of the mortgaged goods, and sold the same in the manner provided by the mortgage, and that the proceeds of the sale — $1,206.85—plain-tiffs credited on the note. The suit in this case was brought for the balance alleged to be owing upon the said- note. Defendants contend that prior to May 9, 1891, they made- an agreement with the plaintiffs to take and receive the stock of goods then in the possession of the defendants in full satisfaction of tne balance eying upon the note, and that tile plaintiffs accepted the goods. Plaintiffs denied the alleged accord and satisfaction, and now say that the question whether or not there was such accord and satisfaction is the only issue in the case.

One of the errors assigned is that the evidence is insufficient to support the verdict. It is enough to say that such examination as we have been able to give the transcript, without any material assistance from the brief, discloses the fact that the testimony is conflicting upon the question relied upon as the main issue in the case, to-wit, whether there was in fact accord and satisfaction. The jury seems to have found thát there was such a settlement, and that the defendants were not indebted to the plaintiffs; therefore, the court having entered judgment for the defendants, and having denied the motion for a new trial, we cannot say that the court erred in holding, in its discretion, that the evidence was sufficient to support the verdict. There seems to have been sufficient evidence, if the jury believed it to be true, given by the defendants in support of their defense of accord and satisfaction; and therefore it is not necessary for us to consider the controversy between appellants and respondents as to’ which party had upon it the burden of proof, the appellants contending that such burden was upon the respondents.

It is contended, also, in the argument that the court erred in refusing oeafain instructions numbered 1, 5, 6, 7, 9 and 10. The argument of counsel does not convince us that the court erred in refusing these instructions’, or any of them. Whether the court erred for any other reason not appealing in the argument is not for us to inquire, and, as no new points of law not heretofore passed upon by this court are raised, it is not necessary for us to set out at length the said refused instructions, or to go more extensively into our reasons for holding as we do in respect of them.

The court did not err in its discretion in refusing to- grant a new trial on the affidavit of plaintiff J. A. Elliott as to newly discovered evidence, for one reason, at least; that is, that Elliott neither offered any affidavits of the witnesses by whom he expected to prove the matters referred to in his affidavit, nor did he offer any excuse as to why he did not submit the same.

Some of the alleged errors assigned in the brief are not argued by counsel, and therefore we do not consider them.

We do not find any substantial error treated of in the argument, and the judgment and order denying a new trial must be affirmed.

A further reason why the judgment and order should be affirmed is that the brief of counsel fails to comply with Rule X, Section 3, in that it does not refer to the page numbers of the transcript in such a manner that the pleadings, evidence, orders, and judgment may be easily found. There is no reference whatever to the pleadings, orders, or judgment; and again we call attention of counsel to- the fact that the rules of this court are made to be obeyed, and are for the purpose of lightening the labors of the court, in order that matters other than those of counsel who fail to comply therewith may be heard and determined. (Casey v. Thieviege, 27 Mont. 516, 71 Pac. 755, and cases cited.)

Affirmed.

Me. Justice Holloway, having been absent, did not hear the argument and’takes no part in the foregoing decision.


author: MR, JUSTICE HOLLOWAY-

text:
    STATE ex rel. REYNOLDS, Respondent, v. LAURENDEAU, Appellant.
    (No. 1,482.)
    (Submitted March 16, 1903.
    Decided March 19, 1903.)

      Justices of the Peace — Default Judgment — Certiorari—Rem-edy1 by Appeal — Payment of Judgment — Subsequent Annulment.

    1. Code oí Civil Procedure, Section 1761, provides that there is no appeal from a judgment by default in a justice’s court, except on questions of law appearing on the face of the papers, except where the justice has abused his discretion in setting aside or refusing to set aside a default judgment. Held that, where a justice overruled a motion to vacate a default judgment, such section authorized an appeal, and the judgment could not be reviewed by certiorari.

    2. Where, after a writ of certiorari had been issued to review, a justice’s judgment, but before the justice had made his return thereto, and before the hearing of the writ by the district court, the justice’s judgment was satisfied, as appeared by the justice’s transcript filed in return to the writ,' it was error for the district court to enter judgment in the certiorari proceedings setting aside the judgment of the justice.

      Appeal from District Court, Silver Bow County; Henry C. Smith, Judge.

      Certiorari by tbe state, on relation of S. J. Reynolds, against E. J. Laurendean, as justice of tbe peace, to review a justice’s judgment. From a judgment vacating and setting aside tbe judgment, defendant appeals.
    Reversed.

      Mr. M. D. Leahey, for Appellant.

      Mr. Johm N. Kirk, for Respondent.
   MR, JUSTICE HOLLOWAY-

delivered tbe opinion of tbe court.

In November, 1896, tbe Oudaby Packing Company commenced an action in claim and delivery in tbe justice of tbe peace court for Silver Bow towinsbip against Samuel J. Reynolds, sheriff of Silver Bow county, Montana, to recover possession of certain personal property, or for tbe value thereof in ease possession could not be recovered, and for damages for its retention. After an amended complaint was filed, a summons was issued, returnable November 16 th at 2 o’clock p. m., and placed in tbe bands of Evan Herbert, a constable in said county, wbo made service by delivering a copy thereof to tbe defendant, Reynolds. On- November 16th, after waiting one hour after return time., and no appearance having been made by tbe defendant, bis default was entered, and, proof having been made sufficient to. satisfy tbe court, a judgment for tbe plaintiff as prayed for in tbe amended' complaint was entered. On November 28th tbe defendant, Reynolds^ appeared in tbe action by a motion to set aside tbe judgment and open tbe default, upon tbe ground that summons bad not been served in tbe proper manner, or by any proper person authorized to make service thereof. This motion was thereafter overruled. On April 23, 1898, a writ of certiorari was issued from tbe district court, directed to the justice of tbe peace, requiring him to certify up to tbe district court a transcript of tbe record and proceedings bad in tbe case of Cudahy Packing Company v. Reynolds, but no return thereto seems to have been made until December 8, 1898, when a transcript of tbe record was filed in tbe district court., which, among other things, contains this recital: “The within judgment is hereby canceled upon this record and declared fully satisfied, the amount thereof having been paid to the sheriff of Silver Bow county upon an execution heretofore issued from the Second judicial district court of Montana, wherein an abstract of said judgment was filed. Dated this 15th day of July, A. D. 1898. M. D. Laebey, Atty. for Plaintiff.” Upon the writ and this return the district court on July 28, 1899, made and entered a judgment annulling and setting aside the judgment entered in the justice of the peace court on November 16, 1896. B'rom this judgment of the district court this appeal is taken.

Numerous errors are assigned, but we will consider only two: (1) The court erred in issuing a writ of certiorari, for the reason that the sheriff had a plain, speedy, and adequate remedy at law by appeal; and (2) the district court erred in entering its judgment, for the reason that the judgment obtained in the justice of the peace court had been satisfied -long prior to the date of entry of the judgment in the district court.

1. It is contended that certiorari would not lie because the defendant, having appeared and moved the court to* set aside the judgment -and open the default, upon the court’s refusing to do so, could have appealed from the judgment i» the district court, and there have had, upon that appeal, every question reviewed and determined which he could have by the writ of certiorari. Section 1161 of the Code of Civil Procedure among other things provides: “* * * There is no appeal from a judgment by default rendered in a justice’s or police eoqrt, ■except on questions of law which appear on the face of the papers or proceedings, and except in cases when the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default or judgment. * * *” In State ex rel. Shanahan v. Lindsay, 22 Mont. 398, 56 Pac. 827, this portion of Section 1761 received careful consideration and construction by this court, with the conclusion reached that after the justice’s court has overruled a motion to vacate a default judgment an appeal will lie to the district court, and on that appeal the district court will first try de novo tbe legal, question raised by the motion to vacate tbe judgment of tbe court below. If no abuse of discretion be shown, tbe district court will enter judgment of affirmance; if sueb abuse be shown, tbe district court will set aside the default and permit tbe injured party to further plead, and tbe case will then proceed upon tbe issues raised by such further pleadings. In our judgment that decision is conclusive of this case. Tbe remedy upon certiorari is one uniformly classed as an extraordinary remedy, and can only be resorted to in tbe class of cases to 'which it is applicable — when there is no appeal, nor any plain, speedy, or adequate remedy in tbe ordinary course at law. (Section 1941, Code of Civil Procedure.) Thera being an appeal from tbe judgment of tbe justice of tbe peace court, certiorari would not lie to- correct tbe error complained o-f. (Hayes v. Dist. Court, 11 Mont. 225, 28 Pac. 259; In re Finkelstein, 13 Mont. 425, 34 Pac. 847; State ex rel. Shing v. Lenahan, 17 Mont. 518, 43 Pac. 712.)

2. It is further urged that after tbe writ of certiorari issued, but before tbe justice of the peace made bis return thereto, and long prior to tbe final bearing by tbe district court, which resulted in tbe judgment herein appealed from, tbe judgment in tbe case of Cudahy Packing Company v. Reynolds had been fully satisfied and discharged of record, and that this fact was before the district court in the transcript of tbe justice which be filed in return to tbe writ. An examination of that portion of the record containing tbe return, of tbe justice of tbe peace shows the satisfaction and discharge of tbe judgment, duly acknowledged of record by tbe attorney for tbe plaintiff in that action on July 15, 1898. With this entry before tbe district court, wa fail to see bow that court could malee and enter a judgment annulling and setting aside a judgment of tbe justice of tbe peace court which was not then, and bad not been for a year, in existence.

For tbe reasons herein set forth, tbe judgment appealed from is reversed, and tbe cause remanded, with directions to tbe lower court to set aside tbe judgment made and entered on tbe 28th day of July, 1899, and dismiss tbe certiorari proceedings.

Reversed and remanded.

Mb. Justice MileueN : I concur on the second ground set out and argued in paragraph numbered two.


author: MB. CHIEF JUSTICE BRANTLY

text:
    GOON, Appellant, v. PROCTOR et al., Respondents.
    (No. 1,495.)
    (Submitted March 18, 1903.
    Decided March 27, 1903.)

      Water Rights — Abandonment—Findings—Harmless Error.

    1. Evidence examined, and held, to sustain a finding that’ whatever right decedent had acquired by prior appropriation to the use of the waters of-certain springs had been abandoned.
    2. where the court finds that plaintiff’s alleged water right had been abandoned, such finding is conclusive of the plaintiff’s right, and she is not prejudiced though certain of the findings in favor of defenda-1 are outside the issues made by the pleadings.

      Appeal from District Court, Cascade Countyj J. B. Leslie, Judge.

    ActioN by Barbara A. Goon, administratrix of Jonathan Goon, deceased, against I. 0. Proctor and Lucy D. Pinney. Decree for defendants, and plaintiff appeals.
    Affirmed.

      Mr. C. H. Benton, for Appellant.
    Cited: Stwrr v. Beck, 133 IT. S. 541, 10 Sup-. Court Pep. 350; Broder v. Water Co., 101 IT. S. 276; Williams v. Harter, 121 Cal. 48; Witherspoon v. Duncan, 4 Wall. 218; Blacks Pomeroy on Water Bights, Sec. 30; Curtis v. La Orange Water Co., 20 Ore. 34; Thompson on Homesteads and Exemptions, 231; Wilson v. Proctor, 28 Minn. 16; Shemliffer v. The Peerless Mill Co., 18 Kan. 24; Perrin v. Merrick,- 41 N. T. 319; Richardson v. Palmer, 25 Mo. App. 480; Schouler’s Ex. and A dm.; Sec. 242; Meyendorf et al. v. Frohner et al., 3 Mont. 321.

      Mr. Ransom Cooper, for Respondents.
   MB. CHIEF JUSTICE BRANTLY

delivered the opinion of tbe court

This action was brought for the purpose of having determined the relative priority of the rights of the plaintiff and the defendants to the use of the water of certain springs situate upon sections 3 and 4 of township T9 north, range 4 east, in the county of Cascade, Plaintiff claims a prior right to it under an, appropriation which- she alleges was made by her deceased husband, Jonathan Goon, in the year 1883 for use upon the northwest quarter of section 34, township 20 north, range 4 east, and by diversion and continuous use of it by her said husband and herself as his representative up to the bringing of the present action, except when the use was interrupted by the unlawful acts of the- defendants. The cause of action alleged is the unlawful diversion of the water by the defendants during the year preceding June 29, 1898, the date at which the action was commenced. The prayer of the complaint is for a perpetual injunction restraining the alleged wrongful diversion. The defendants deny the alleged appropriation by the plaintiff's predecessor either at the date alleged in the complaint or at any other time. They also deny that either the plaintiff or her predecessor ever used said water for any purpose, or that by any act of either of them any right to the use of it was ever acquired adverse to that of the defendants-. They then proceed to allege an exclusive right to the use of it in the defendant Pinney through her predecessor in interest, one Paul T. Rum-sey, who-, it is' alleged, appropriated it all in the year 1891 for use upon the south half of the northeast quarter and lots 3 and 4 of section 3 in township 19 north, range 4 east, in said county. It is alleged that, as soon as such appropriation was made, said Rumsey diverted the water for domestic and agricultural purposes ; that it thus became appurtenant to the said lands; that the defendant Pinney acquired the lands and water by mesne conveyances from said1 Rumsey; that she has continuously used it upon the lands for the purposes for which it was appropriated and diverted; and that the defendant Proctor has no interest in it, and has not used it except under Her direction as her agent. As an additional defense it is alleged that, if any right was ever acquired by Jonathan Goon, the predecessor of plaintiff, it was abandoned by him during his lifetime, and long before the purchase of her said lands by tire defendant Pinney, and that the plaintiff never used it, nor asserted any right to it, until the commencement of this action. The trial resulted in findings in favor of the defendants, and a decree establishing the claim of the defendant Pinney in accordance with her alle*-gations in the answer. The plaintiff has appealed from the judgment and an order denying her a new trial.

The principal controversy at the trial was upon the issue of abandonment of his right to' the rrse of the water by Jonathan Goon in his lifetime, and the principal assignment of error in this court is that the evidence submitted upon this issue is not sufficient to justify the court’s findings. We have carefully examined the evidence,, and find that it is- amply sufficient to sustain the findings on this issue. It tends to show that Jonathan Goon made an appropriation in 1883, as alleged in the complaint, and that thereafter* he made some use of the water upon the land now held by the plaintiff for agricultural and domestic purposes; but that subsequently, upon a settlement by Paul T. Pumsey, a son-in-law, upon the land thereafter acquired by defendant Pinney, Goon abandoned such use, allowing his ditches and flumes to- fall into disrepair and become filled up^ so that they would not convey water at all. It further tends to show, that these ditches, and flumes, remained in this condition until a short time before the present action was brought, and that the plaintiff herself on several occasions prior to the acquisition of the lands of Paul T. Pumsey by the defendant Pinney declared that she made no claim through the right acquired by her husband because he had made no claim- at any time subsequent to the settlement upon the said lands by Paul T. Pumsey. This evidence we think sufficient to justify the conclusion by the court that whatever right Goon acquired in his lifetime had been abandoned long before his death.

Complaint is made that some of the findings touching the appropriation and diversion of tbe water by the defendant Pin-ney or her predecessor are outside of the issues made by the pleadings, and that the judgment should be reversed for this reason. Conceding this to be the case, such error was not prejudicial to the claim- asserted by the plaintiff, for, if her bus-band, Jonathan Goon, abandoned any right acquired by him during his lifetime, then the finding of the court in that par-ti milar is conclusive of the plaintiff’s rights, and it is of no moment to her whether the other findings in the case are within or without the issues-. We find no- prejudicial error committed by the court in the trial upon this main issue.

The judgment and order are affirmed.

Affirmed.


author: ME. JUSTICE HOLLOWAY

text:
    CAIN, Respondent, v. GOLD MOUNTAIN MINING COMPANY, Appellant.
    (No. 1,500.)
    (Submitted March 20, 1903.
    Decided March 27, 1903.)

      Appeal — Insufficiency of Evidence. — Sufficiency of Specifications —- Talcing Case from Jury- — Motion to Nonsuit— Waiver.

    1. Code of Civil Procedure, Section 1173,, provides, inter alia, that, when the notice of motion for a new trial designates as the ground the insufficiency of the evidence, the statement shall specify the particulars in which such evidence is insufficient, otherwise the statement shall be disregarded. Held, that under a specification of the insufficiency of the evidence to support the verdict, the supreme court will not consider what the evidence does show, but only what it does not show, and a specification that the evidence is insufficient because it conclusively shows contributory negligence, etc., will be disregarded.
    2. A motion for nonsuit is not waived by the moving party putting in evidence after the motion has been overruled, hut he assumes the risk of supplying any deficiency in the other party’s case by the testimony of his own witnesses.
    3. upon a motion for a nonsuit, everything will be deemed to be proved which the evidence tends to prove.
    4. No case should be taken from the jury unless it appears as matter of law that no recovery can be had on any view which can reasonably be drawn from the facts which the evidence tends to establish.

      Appeal from District Court, Jefferson Qouníyj M. 3. Par- . her, Judge.

    ActioN for personal injuries by Thomas Cain against the Gold Mountain Mining Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals.
    Affirmed.

      Mr. Jesse B. Rooie, and Mr. William A. Olark, Jr., for Appellant.
    Mr. Richard B. Shepard was on their brief.
    When the facts are undisputed the effect of the testimony is a question of law, unless reasonable men might fairly draw different conclusions from the testimony. (Olsen v. Ry. Go., 9 IJtah, 129 ; Bunnel v. Ry. Go., 44 Pac. Pep. 927.)
    When the evidence is undisputed or is of suc-h conclusive character that the court in the exercise of a sound, judicial discretion would be compelled to set aside a verdict returned in opposition to it, the court should withdraw the ease from the jury. (Anderson v. Beal, 113 IT. S. 227-241; Scofield v. Ry. Go., 114 IT. S. 615; R. R. Go. v. Comerse, 139 IT. S. 469-472; Elliott v. Ry. Go., 150 IT. S. 245; Ry. Go. v. McDonald, 152 IT. S. 262-282; Victor Goal Go. v. Muir, 20 Colo, 320-331.)
    Where the facte are undisputed and but one reasonable inference can be- drawn therefrom, whether there was contributory negligence on the part of the plaintiff, is a question of law for the court. (Butte v. P. V. Goal Go., 47 Pac. Pep. 77; Wormell v. Ry. Go., 79 Me. 397; Schepers v. Union Depot R. Co., 126 Mo. 665; Hilsenbech v. Qwhrmg (N. Y.), 30 N. E. Pep.- 580; Apsey v. Railroad Go., (Mich.), 47 N. W. Pep. 513; Naylor v. Railway Go., 5,3 Wis. 661.)
    Where plaintiff's own evidence shows contributory negligence, a nonsuit should be granted. (Butte v. P. V. Goal Go., 47 PaG. 77; Hott v. Peters, 55 Wis. 405 ; Hoyt v. City of Hudson, 41 Wis. 105.)
    If the evidence introduced by the plaintiff establishes the defense of contributory negligence the motion for a nonsuit should be granted. (McQuillcen r. C. P. P. B. Go., 50 Cal. S.)
    Plaintiff knowing, as shown by the undisputed evidence, the dangerous position one would be placed in in entering the tunnel, then when he voluntarily entered it, he assumed the risks arising from his position and condition, and the court should have granted defendant’s motion for a nonsuit. (Bunt v. Mining Go., 11 Sawyer, 178; Bunt v. Miming Go., 138 IJ. S. 483; OooTc v. Mining Go., 12 TJtah, 57; Kilroy v. Foss, 161 Mass. 138; Naylor v. Railway Go., 53 Wis. 661; Victor Goal Go. v. Muir, 20 Oblo. 320.)
    The rule at one time seamed to prevail that if there is a scintilla of evidence, the case must go to the jury, is now abandoned by nearly all the courts. If the court would set aside a verdict for plaintiff, a, nonsuit should he granted. (Connor v. Giles, 76 Me. 132-134; McQuillcen v. C. P. B. B. Go., 50'Cal. 8.) ,
    Where the facts are undisputed and but one reasonable inference can be drawn therefrom, whether there was contributory negligence on the part of plaintiff is a question of law for the court. (Fowler v. P. V. Goal Go'., 52 Pae. Pep. 594; Kilroy v. Foss, 161 Mass. 138; Section 1004 of the Code of Civil Procedure of Montana., and cases cited.)
    Where the servant has equal knowledge with the master of the danger incident to the work, he takes the risk upon himself if he goes on with it. If a servant from any source has the same information that! the master has he is bound to act on it. (Wood on Master and Servant, Secs 349 and 372; Chicago & Alton B. B. v. Monroe, 85 Ill. 25; Mad River & L. E. B. B. v. Barber, 5 Ohio St. 541; McMillan v. Saratoga & W. B. B. Go., 20 Barb. 449; Thayer v. St. Louis <& G. B. B. Go., 22 Ind. 556; Buzzell v. Laconia Mfg. Go., 48 Me. 113; Crutchfield v. Richmond <& D. B. B. Go., 78 N. C. 300.)

      Mr. T. J. Walsh, for Respondent.
    If it was error in the court to overrule the motion for non-suit, that error was waived when the defendant proceeded with tbe case, and it cannot now be reviewed. . (Bogle v. Gassert, 149 IT. S. 17; U. P. Go. v. Callaghan, 161 IJ. S. 91; Hansen v. Boyd, 161 U. S. 397; Lynch v. Johnson, 67 N. W. 908; Lake Shore v. Richards, 152 Ills. 59; Thompson v. Avery, 39 Pac. 829; Hobson v. Milk Go., 49 N. T. S. 209; Pollock v. Iron Works Go., 157 N. T. 699; Tot'len v. Bwrhans, 61 N. W. 58; Bowmcm v. Bppinger, 44 N. W. 1000; Illstad v. Anderson, 49 N. W. 659.)
    Tbe ease, viewed simply as involving tbe proposition as to whether the plaintiff is to be deemed conclusively to have known that a car could not pass a man in the tunnel, is analogous to that large class of cases in which railroad employes sue to recover for injuries sustained by coming in contact with struct nres too close to tbe railroad track. Tbe duties of their position frequently require them to pass these places and repass them, and tbe question arises as to whether they are not to be deemed conclusively to know that the structures are too near and so near as to' be dangerous. The modern rule is that except under the most extraordinary circumstances no conclusive presumption of knowledge can be indulged by the court. (Potter ■v., Ddroit, 81 N. W. 80'; Wood v. Louisville, 88 Fed. 44; Southern Kansas Ry. v. Michaels, 46 Pac. 938; Valley Ry. Go. Keegan, 87 Fed. 849 ; New York v. Railroad Go., 41 N. E. 1037; Whipple v. New York, 35 At. 305; Dorsey v. R. R. Go., 42 Wis. 598; Murphy v. Wabash, 21 S. W. 862; Johnson v. Ry. Go., 44 Nl W. 884;' Pidcock v. U. P. Ry. Go., 19 Pac. 193; Sweet v. Ry. Go., 49 N. W. 882; Johnstone v. Oregon, 31 Pac. 283; Boss v. N. P., 49 N.' W. 655; Kelleher v. Milwaukee Ry. Go., 50 N. W. 942; Keist v. Ry. Go., 81 N. W. 181; Voorhees v. L. S. & M. S. Ry. Go., 44 At. 335 ; Galveston v. Ry. Go., 47 S. W. 1050; Guthrie v. Louisville, 47 Am. Pep. 286; Kelley v. Fourth of July. Go., 16 Mont. 484.)
    When a servant is put in imminent peril by the negligence of the master, he is not to be charged with contributory negligence by reason of the fact that be does not do tbe safest thing under tbe circumstances, or act with tbe same degree of prudence that be would under conditions permitting greater deliberation and calmer thought. (Hass v. By. Go., 57 N. W. 894; International v. Neff, 28 S. W. 283; Gulf By. Go. v. Knott, 36 S. W. 491.)
   ME. JUSTICE HOLLOWAY

delivered tbe opinion of tbe court.

Tbe plaintiff, Thomas Cain, was employed as a miner by the defendant, tbe Gold Mountain Mining Company, in tbe Euby mine, in Jefferson; county, Montana, working in the slopes getting out ore1. Tbe operations of that portion of tbe mine were reached through a tunnel about 600 feet in length. A track of iron rails was laid in tbe tunnel, and ordinary tram cars were used to haul out the ore and waste. Tbe tunnel bad sufficient grade that tbe cars ran out by force of gravity and with considerable velocity. On January 19, 1898, tbe plaintiff left bis work in tbe stopes, went to tbe mouth of tbe tunnel, and, in attempting to return to bis work, met a loaded car, and was by it crushed against tbe side of tbe tunnel and severely injured. He brought this action for damages, alleging negligence on tbe part of tbe defendant company in that tbe tunnel through which be bad to go to bis work was too narrow to permit a man and car to pass in it. Tbe answer denied any negligence on tbe part of tbe defendant; alleged contributory negligence on tbe part of the plaintiff; that tbe plaintiff assumed the risks incident to bis employment when be went to; work for tbe defendant company; and that tbe narrowness of tbe tunnel was apparent to the plaintiff, and constituted a risk which be so assumed. Upon tbe trial of tbe cause, after tbe plaintiff x-ested, tbe defendant interposed a motion for a nonsuit, which was overruled, and defendant then offered its testimony. A verdict in favor of tbe plaintiff for $2,500 was returned, and from a judgment entered'on that verdict^ and from an order overruling defendant’s motion for a new trial, these appeals are prosecuted.

Tbe only errors relied upon are, first, tbe insufficiency of tbe evidence to justify tbe verdict;, and, second, error of tbe court in refusing to grant defendant’s motion for a nonsuit.

1. The specifications of insufficiency of the evidence to justify the verdict are alike, and are wholly inadequate for the purpose intended. In form they are substantially as follows: The evidence is insufficient to support the verdict in this: that the evidence conclusively shows contributory negligence on the part of the plaintiff, knowledge of certain facts on his part, or something to the same effect. Section 1113 of the Code of Civil Procedure, among other things, provides: “When the notice of the motion designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. * * * If no such specifications be made the statement shall be disregarded on the hearing of the motion.” Under a specification of the insufficiency of the' evidence to- support the verdict, this court will not consider'' what the evidence does show, but only what it fails to show (First Nat’l Bank v. Roberts, 9 Mont. 323, 23 Pac. 718; Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Bardwell v. Anderson, 18 Mont. 528, 46 Pac. 443; Kumle v. Grand Lodge, 110 Cal. 204, 42 Pac. 634; Dawson v. Schloss, 93 Cal. 194, 29 Pac. 31), and, the specifications having wholly failed to point out any particulars in which the evidence is insufficient to support the verdict, we are bound by the terms of Section 1173, above, to disregard them on this hearing.

2. Did the district court err in overruling defendant’s motion for a nonsuit ? The respondent contends that this question is not before this court, and that the error, if error at all, was waived' by the defendant when it proceeded to put in its evidence after the motion had been denied. Upon this proposition the courts are hopelessly divided in opinion. All the federal courts, and a number of Hie state courts, hold that the motion for nonsuit is waived by the moving party putting in evidence afterwards; while, on the other hand, very respeotable authorities hold to the contrary. It can hardly be said to be unfair to the lower court for this court to review its action in overruling a motion for a nonsuit merely because other testimony has been offered since that ruling was made, for, upon sucb bearing in tbis court, tbe alleged error will be treated from tbe standpoint of tbe district court, and witb reference to tbe evidence it bad before it in making tbe ruling, and not otherwise. It would seem that tbe better rule is that tbe motion is not waived, any more tban a demurrer is waived by pleading further after tbe demurrer bas been overruled. However, tbe defendant assumes tbe risk of supplying the deficiency in tbe plaintiff’s case by testimony elicited from bis witnesses, and, if sucb occurs, tbe error in overruling tbe motion would be entirely cured. Tbis is tbe doctrine adhered to in California, Oregon, Washington, Colorado, Utah (by statute), and Missouri. (Elmore v. Elmore, 114 Cal. 516, 46 Pac. 458; Ferguson v. Ingle, 38 Oregon, 43, 62 Pac. 760; Matson v. Port Townsend; etc. Co., 9 Wash. 449, 37 Pac. 705; Alta Investment Co. v. Worden, 25 Colo. 215, 53 Pac. 1047; Weber v. Kansas City C. Ry. Co.; 100 Mo. 205, 13 S. W. 587, 7 L. R. A. 819, 18 Am. St. Rep. 541.) In tbis state it bas heretofore been an open question. (T. C. Power & Bro. v. Stocking, 26 Mont. 478, 68 Pac. 857.)

Considered from tbe standpoint of the district court in passing upon tbe motion for a nonsuit, we are satisfied that no error was committed in overruling it. Tbe evidence was sufficient to go to tbe jury. Upon a, motion for a nonsuit, everything will be deemed to1 be proved which tbe evidence tends to prove. (State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301; Morse v. Granite County Commissioners, 19 Mont. 450, 48 Pac. 745.) Tbe rule is well established “that no cause should ever be withdrawn from the jury unless tbe conclusion from tbe facts necessarily follows, as a matter of law, that no recovery could be bad upon any view which could reasonably be drawn from the facts which the evidence tends to establish.” (Great Northern Ry. Co. v. McLaughlin, 17 C. C. A. 330, 70 Fed. 669.)

For the reasons herein set forth, the judgment and order appealed from are affirmed.

Affirmed.