author: MR. JUSTICE PIGOTT

text:
    O’ROURKE, Respondent, v. SCHULTZ, Appellant.
    [No. 1,138.]
    [Submitted. July 12, 1899.
    Decided October 25, 1899.]

      Sale — Rescission—Assignment Pendente Lite — Objections— Waiver— Conditioned Judgment — Injunction— Corporations —Transfer of Stock — Rights of Transferee — Tender of Sha/res — Appeal and Error■ — Law of the Case.

    1. The only exceptions which may be considered on appeal are those taken, or preserved to, the appellant.
    2. Where a contract provided that, if the purchaser of property should become dissatisfied, she should be entitled to a return of the purchase price on surrender of the property sold, the fact that pending the suit to enforce such agreement she assigned the contract is immaterial, since Code of Civil Procedure, Section 22, authorizes the continuance of a suit in the name of the original party, or substitution of the transferee, where plaintiff’s claim is transferred pendente lite.

    3. Where, in an action on a contract, it appeared that plaintiff’s interest had been assigned to another pendente lite, and defendant made no objection to such assignment in that action, he cannot subsequently object thereto in a proceeding to restrain the enforcement of the judgment recovered.
    4. Where, after a judgment for the rescission of a contract on,.plaintiff’s surrender of property received thereunder, it appears that she was unable to make such surrender, defendant is entitled to restrain the enforcement of the judgment.
    5. Where a transfer of corporate shares is valid, no irregularity in the issuance of the stock certificate to the transferee can affect her interest or lessen her rights to the stock transferred.
    6. A contract provided that, if the purchaser of a one-fourth interest in brick works should become dissatisfied with the purchase, she should be entitled to a return of the purchase price on surrender of the property sold. Subsequently, by agreement of both parties, her interest was transferred to a corporation, and 2,500 shares of its stock received, as representing the property. After the purchaser had sued to rescind the contract, she assigned it, and her assignee tendered the vendor 2,500 shares, to which she was legally entitled as against the corporation. Held, that such tender was valid, notwithstanding alleged irregularities in the issuance of the certificate representing the stock.
    7. Where defendant objected to atender of corporate shares on the ground that they had been attached in the hands of a former owner only, he cannot subsequently object to such tender on the ground of irregularities in the issuance of the certificates.
    8. Where, on appeal from an action to enforce a rescission of a contract for the sale of property represented by corporate shares, it was determined that the identical shares originally owned by plaintiff need not be returned, but any shares representing the value of the property might be tendered, such determination is the law of the case on a subsequent appeal of a proceeding to restrain the enforcement of the judgment.

      Appeal from District Court, Silver Bow County; John Lindsa/y, Judge.

      Injunction by John O’Rourke against Mary Schultz to restrain the enforcement of a judgment. From a judgment in favor of plaintiff, defendant appeals.
    Reversed.

      Mr. F. T. McBride, Mr. John W. Cotter and Messrs. Toole, Bach (& Toole, for Appellant.
    In the opening portion of this argument we will assume that it was necessary for Mrs. Schultz, before or at the trial, to tender the 2,500 shares of stock; and will attempt to show that, even under this view of the case, neither the complaint nor the testimony shows facts sufficient to sustain the preliminary injunction, or the awarding of a new trial of the original cause of action. There are two propositions of law which, when applied to the facts in this case, should, in our opinion, result in a reversal of the judgment of the order appealed from. (1st) Equity will not interfere to set aside a judgment except where the plaintiff (defendant in the judgment) was prevented by fraud, unavoidable accident, mistake or surprise — from availing himself of a defense to the original action. (2nd) Where he also shows that he was free from neglect. These are elementary propositions and are supported by the following authorities: Ma/yor of New Fork v. Brady, 115 N. Y. 599; Pico v. Cohn, 91 Cal. 129, 25 Pac. 970, affirmed on rehearing 27 Pac. 537; Brick v. Burr, 47 N. J. Eq. 189; Brown v. County of Buena Vista, 95 U. S. 157; Grimy. Handley, 94 U. S. 652; Hendrickson v. Hinckley, 17 How. (U. S.l 443; U. S. v. Throckmorton, 98 U. S. 61; Vance y. Burbank, 101 U. S. 514; Steely. Smelting Co., 106 U. S. 447-453; Greene v. Greene, 2 Gray 363; Zellerbach y. Allenberg, 67 Cal. 296; TJ. S. v. White, 14 Fed. 561; Dringer y. Receiver, 42 N. J. Eq. 573 and cases cited; U. S. v. Hancock, 40 Fed, 851 — 854; Amador C. de M. Co. v. Mitchell, 59 Cal. 168; field v. Flanders, 40 111. 470; Hanley y. Hanley, 114 Cal. 690 and cases cited; Stein v. Benedict, 83 Wis. 603, 614; Town of Andes v. Millard, 70 Fed. 515-517; Barnet v. Kilbourne, 3 Cal. 327; Freeman on Judgments, Yol. 2, Sec. 503; Allen y. Currey, 41 Cal. 318; Knox

      County v. Harshman, 133 IT. S. 152; Cray v. Barton, 62 Mich. 186-196-7; Codde v. Mahiat, 66 N. W. 1093 (Mich.); Liebry v. Parks, 4 Hammond (Oh.) 469; Green v. Dodge, 6 Hammond (Oh.) 80; Convwy v. Ellison, 14 Ark. 360; Wvngate v. Haywood, 40 N. H. 437; Weir v. Vail, 65 Cal. 468; Hamilton v. McLean, 139 Mo. 675, 687; Ratliff v. Stretch, 130 Ind. 285; Hollinger v. Reeme, 138 Ind. 363; Woodward v. Pike, 43 Neb. 777, 62 N. E. 230; 6otzhausen v. Kerting, 29 Fed. 821; Edmonson v. Best, 57 Fed. 531.
    We believe the following propositions or rules of law are well established by the foregoing cases:
    1st. That in order to set aside a judgement or restrain the execution thereof on the ground of fraud, — the fraud must be a fraud which is collateral to the issue, and not a fraud (or even a perjury) in the presentation of evidence, or the suppression of evidence.
    2nd. That the plaintiff in the equity suit must show in his bill that he was not guilty of negligence or laches — to excuse his failure to defend at law.
    3d. That he must show due diligence — and the facts alleged (and proved) must be inconsistent with the least neglect.
    4th. That he must show that he had in vain exhausted his remedies at law. This is a general principle in equity.
    5th. He must show affirmatively in his pleadings why he had not previously discovered the fraud which he alleges, and when and how he did discover it.

      Mr. John J. Me Hatton and Mr. John O. Bender, for Respondent.
    “Without attempting to draw any precise line to which courts of equity will advance, and which they cannot pass, in restraining parties from availing themselves of judgments obtained at law, it may safely be said that any fact which clearly proves it to be against conscience to execute a judgment, and of which the injured party could not have availed himself in a court of law; or of which he might have availed himself at law, but was prevented by fraud or accident unmixed with any fault or negligence in himself or of his agents, will justify an application of a court of chancery.” {Marine Insurance Co. v. Hodgson, 7 Cranch (U. S.) 332; Crim v. Ilandly, 94 U. S. 657.) “In all these cases and many others which have been examined relief has been granted on the ground that by. some fraud practiced directly upon the party seeking relief against the judgment or decree, that party has been prevented from presenting alhof his case to the court. ’ ’ {United States v. Throckmorton, 98 U. S. 61.) In Borland v. Thornton (12 Cal. 440) and in Riddle v. Baker (13 Cal. 295), the rule governing cases of this character is clearly laid down. {Spencer v. Vigneaux, 20 Cal. 442.) “Fraud in concealing from the complainant a good and valid defense to the action will entitle an injunction against a judgment that is contrary to conscience, where complainant has not been guilty of negligence. ” {Merriam v. Walton, 30 L: R. A. 786, notes and cases cited.) ‘ ‘In Norman v. Burns, 67 Ala. 248, it was said that if the defense was prevented by fraud, accident or surprise, or the act of the adversary, and the judgment is unjust, it would be énjoined. And where the defense was that the bill in suit was a forgery, and the excuse for not defending at law was that there was a similar genuine bill which was believed to have been the one in suit and which was not discovered until after judgment. {Barrel v. Allen, 5 W. Ya. 43; Norwegian Plow Co. v. Bollman, 31 L. R. A. 747, notes and cases cited.) Where there is a fraudulent suit Ijy a party, who is not the real party in interest, in order to prevent a defense, and it is- not discovered until after judgment, an injunction will be granted. {Hickerson v. Raiguel, 2 Heislc. 329; Stovall v. Northern Bank, 5 Smedes & M. 17; Davis v. Tileson,. 47 U. S., 6 How. 114, 12 L. Ed. 366; Greenleqf v. Maher, 2 Wash. C. C. 393; Goadv. Hart, 8 Smedes &• M. 787; Dady v. Brown, 76 Iowa 528; Marchman v. Sewell, 93 Ga. 653.) The court has jurisdiction in a subsequent action to set aside a judgment obtained by fraud. {Cole v. Langford, (1898) 2 Q. B. 36, 67 L. J. Q. B. N. S. 698.) One against whom a final judgment has been rendered may by a direct proceeding for that purpose have the case reopened upon averments that he was prevented from making a valid defense by fraud, accident or the act of the adverse party, unmixed with negligence on his part. (Ilammond v. Atlee, 39 S. W. 600; 15 Tex. Civ. App. 267.) A court of equity will vacate a judgment in a proper proceeding and grant a new trial, where it appears-that the judgment depends for its support on the perjured evidence of the successful party given at the trial, that the defeated party had a valid defense, which he was prevented from establishing by such perjury, and he had not been guilty of negligence and has exhausted all his ordinary legal remedies for obtaining the vacation.” (Munro v. Callahan, 75 N. W. 151; 55 Neb. 75, citing Graver v. Fawrot, 46 U. S. App. 268; 76 Fed. Rep. 257, 22 C. C. A. 156; Laithe~sr. McDonald, 12 Kan. 340; United States v. Throckmorton, 98 U. S. 61, 25 L. Ed. 93; Ward v. Southfield, 102 N. Y. 293; As-bury v. Frisz, 148 Ind. 513, 47 N. E. 328.) These temporary injunctions rest largely in the discretion of the district court. (Nelson v. O'Neill, 1 Mont. 284; Atchison v. Peterson, 1 Mont. 561; Mining Company v. Murray, 9 Mont. 475; Klein v. Davis 11 Mont. 155; Anaconda Mining Co. v. B. <& R. 17 Mont. 519; Bed Mountain Consolidated Mining Co. v. Esler, 18 Mont. 174; Bennett Bros. Co. v. Congdon, 50 Pac. 556.)
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

In the spring of 1892 the plaintiff, O’Rourke, sold to the defendant, Mary Schultz, an undivided fourth interest in the Western Star Brick Yard & Brick Works for $2,500; the entire property was subsequently transferred to a corporation; with the consent of all concerned, one-fourth (2,500) shares of the corporate stock was duly delivered, by certificates representing the stock, in lieu of the one-quarter interest in the property itself, all the terms of the agreement of sale and purchase being applicable to the contractual rights as thus immaterially modified. By the terms of the contract the purchaser, Schultz, was entitled, if dissatisfied with the investment or the business at the end of one year from the date of the contract, to demand and receive from the seller, O’Rourke, the amount of the purchase price, and O’Rourke, upon making such repayment, was entitled to a retransfer of the property sold. Conformably to the agreement, Schultz requested repayment, and offered to return the stock representing the property sold to her, and, upon the refusal of O’Rourke to comply with the demand, Schultz brought an action and recovered a judgment therein against him for the sum of $3,168, which judgment was affirmed by this Court. (Schultz v. O' Rourke, 18 Mont. 418, 45 Pac. 634.)

The present action was instituted by the judgment debtor, O’Rourke, to restrain his judgment creditor, Schultz, from enforcing the judgment in Schultz v. O'Rourke; it being asserted in his behalf that it was obtained by fraud, and that he was prevented by the deceit of the plaintiff in the former action from presenting and proving in defense some of the matters now relied upon by him, and also that some of the other matters now urged were not material to any of the issues made therein. Upon the hearing of an application for an injunction pendente lite, the court below granted such injunction, and from the order in that behalf Schultz, the defendant, appeals.

Although the record is somewhat long, and the facts to be deduced therefrom not readily apparent, and although many questions have been fully discussed in the briefs and at the bar, the only question which deserves very serious consideration is whether at the time the judgment was rendered in Schultz v. O'Rourke, requiring O’Rourke to repay to Schultz the agreed purchase price, she was able to comply with the requirement of that judgment, by transferring to O’Rourke the shares of stock which then represented the property sold by O’Rourke to Schultz.

In the action which resulted in the judgment whose enforcement is now sought to be enjoined, O’Rourke, the defendant therein, contended that Schultz, the plaintiff in that action, should have made to the defendant therein a formal tender of the stock before trial, and that the failure to allege and prove such tender constituted a fatal defect in the plaintiff’s case; but this Court held that no such tender was necessary, as the covenants between the parties were mutual and dependent, and the performances thereunder were to be simultaneous, and that, even if such a tender had been required, the defendant, O’Rourke, had waived the production of any certificate of stock, or its absolute formal tender, either before or at the trial, — though perhaps an offer to retransfer the shares conditionally upon the simultaneous repayment of the purchase price to her was necessary to be made at the trial. But, notwithstanding these rulings by this Court in the former case between these same litigants, the necessity for such tender is now again earnestly urged by O’Rourke, the present plaintiff, and is treated even by Schultz as a proper subject for further discussion. As this Court does not contemplate the rehearing of the former appeal, and as the views heretofore announced will be adhered to, we here quote and repeat with approval a portion of the opinion: “The question of tender is by far the most important point in the case. * * From this evidence we do not think that there ever was a formal actual tender of any stock after March 29, 1893, until the trial. The tenders made before that time were not good, because under the terms of the contract itself the defendant was not obliged to return to her the $2,500 invested until the expiration of one year. All such tenders were premature. * * * The covenants of the agreement were mutual and dependent. If she were dissatisfied at the end of the year, then and in that event defendant agreed to refund to her the $2,500 she paid for her interest in the business, and she in turn agreed to reconvey to him such interest. The performances were to be simultaneous. That she was dissatisfied, and expressed such dissatisfaction to defendant, is indisputably proven. Such being the case, is it not a fair construction of the contract to say that, when she made known that dissatisfaction, it devolved upon defendant to pay or offer her the $2,500 agreed to be paid, and thereupon it at once became her duty to reconvey to him ? We think so. There was no express covenant on plaintiff’s part to tender, and it would seem that, where the covenants between the parties were mutual and dependent, the necessity of strict formalities by a tender before trial ought not to have been imposed upon plaintiff. * * * But, granting that plaintiff ought to have actually presented the certificate of stock to defendant after March 29, 1893, we think that the acts and declarations of defendant dispensed with greater formality than was observed. * * * There is ample justification to infer that the production of the certificates and their formal tender was waived. It was, therefore, unnecessary to offer the certificates themselves, as the law, under such circumstances, does not require a man to perform a nugatory act.” We shall not, therefore, consider any of the evidence or arguments which seem to rest upon the expected re-examination of the alleged right to have the stock certificates transferred, or offered to be transferred, by Schultz, as a condition precedent to her right to maintain an action for the purchase price thereof; that question has been finally adjudicated in this Court.

Having heretofore determined, and now reaffirmed, the right of Schultz, upon the pleadings and proofs involved in the former action, to recover the judgment now attacked, we approach the consideration of the present case with a full appreciation of the unusual and extraordinary nature of the relief sought; for the plaintiff, O’Rourke, having had his day in court as defendant in Schultz v. O' Rourke, is manifestly required to show very substantial reasons for invoking the aid of the courts to the end that he may be protected from the enforcement by writ of execution of a demand already formally and finally adjudged to be payable by him.

What, then, are the circumstances which are supposed to justify the judgment debtor in resisting the judgment, and in asking the Court to enjoin its enforcement? This Court, in the concluding paragraph of the opinion handed down in the former case, said: “Our conclusion upon the whole case is that the plaintiff is entitled to the sum found to be due her by the district court, and that upon payment of such sum defendant is entitled to 2,500 shares of stock tendered and left with the clerk of the court, and agreed to be transferred by plaintiff under the contract.” The judgment debtor, O’Rourke, now claims that Schultz was not the owner of the contract of sale at the time when the judgment was rendered for the payment of the amount due under that contract; that she was not then, nor had she been for a long time prior thereto, the owner of 2,500 shares, and could not, therefore, comply with her covenants, nor with the requirements of the judgment itself; that the certificate of stock left with the clerk of the district court for O’Rourke was and is void, and that it would be inequitable and against conscience to permit the judgment to be executed, when the obligations of the judgment creditor have not been performed and cannot be enforced; and the plaintiff further insists that he was prevented from presenting these defenses in the other action by reason of the false representations of the plaintiff in that, and defendant in this, action.

The first cause of action stated is, in substance, that Schultz has a judgment against O’Rourke for $3,168, and that O’Rourke has a judgment against Schultz for $693 in the same court; and that Schultz is insolvent. The relief prayed is that the smaller judgment be set off pro tanto against the larger. To this statement a demurrer for insufficiency was interposed and sustained. Whether or not the order sustaining it was right is not before this Court, since the only exceptions which may be considered are those taken by, or preserved to, the appellant, who is the party claiming to be aggrieved by the order or judgment of the court below. (Buck v. Fitzgerald, 21 Mont. 482, 54 Pac. 942.)

Whether or not Schultz during the pendency of Schultz v. O' Rourke assigned the contract of sale to one Fanny Matusevitz, either in pledge, or so as to transfer the general ownersbip, or otherwise, is not material, in so far as O’Rourke is concerned. If he had no knowledge that an assignment had been made, he was justified in continuing to regard Schultz as the only person other than himself who was interested in the contract, the performance of the conditions of which was due to Schultz from him, and from her to him; fulfillment upon his part of its covenants would work his discharge, and the recovery of a judgment fixing liability would prevent the maintenance of an action by Matusevitz upon the contract. At the time the former action was commenced, May 23, 1893, Schultz was, for aught that appears to the contrary, possessed of the same interest in the contract that she had when it was made; the assignment was executed on or after June 14, 1894, and pending the suit, and under such circumstances the action could be continued in the name of Schultz notwithstanding the assignment, for Section 22 of the Code of Civil Procedure (Compiled Statutes of 1887) declares that in case of a transfer of interest pending suit the action “may be continued in the name of the original party, or the court may allow the person to whom the transfer is made to be substituted.” Moreover, the original contract itself, with the assignment to Matusevitz thereon endorsed, constituted part of the plaintiff’s proof in Schultz v. O'Rourke, was received in evidence at the trial, and was subject to the inspection of O’Rourke, whose duty it was at the time to make the objection now urged, or apply for a substitution of Matusevitz for Schultz as plaintiff. Having done neither, he may not now be heard to interpose the objection, for he has waived it by remaining silent when he might have spoken. We are not to be understood, however, as intimating, much less as deciding, that the written assignment, of itself, was, under the circumstances, as between O’Rourke and Matusevitz, notice to O’Rourke sufficient to charge him with knowledge that Matusevitz had become the successor to Schultz’s rights in the contract.

O’Rourke alleges in his complaint, and asserts that he .has proved, that when the judgment was rendered Schultz was not the owner of 2,500 shares of the stock, and that the certiflcate delivered to the referee, and by him deposited with the clerk of the district court, was and is void. He contends with plausibility and force that as the obligations of the several parties to the contract of sale were held by this Court to be mutual and dependent, and the performances thereof were required by the contract and also by the judgment to be simultaneous, it would be inequitable to permit Schultz to collect her judgment against O’Rourke if it should appear that she was then, and ever since has been, unable to discharge her own obligation, arising out of the same contract, to retransfer the shares. We are inclined to agree with this contention, and, if the proofs sustained his allegations, we should deem it our duty to sanction the protection which the court below has endeavored to afford O’Rourke against the supposed failure of Schultz to discharge her obligations as recognized in the judgment given in her favor, and by which her discharge of those obligations was declared to constitute a right of O’Rourke maturing simultaneously with his discharge of his obligations to her thus adjudicated.

We are unable, after an examination of the record, to find in the evidence any substantial support for the allegations of O’Rourke touching Schultz’s relation to the stock issued by the corporation in which they both became interested under the circumstances disclosed by the proofs in the former case. Analysis of the stock book and the testimony shows indisputably that the only shares which were ever issued were issued and disposed of as follows, the corporation having been organized in April, 1892: On April 12, 1892, 20 certificates, each for 500 shares, and amounting in all to 10,000 shares, were issued; certificates 1, 2, 3, 4, and 5, representing 2,500 shares, were issued to one Carl Schultz, the husband of Mary Schultz, the former plaintiff and present defendant; certificates 6, 7, 8, 9, and 10, for 2,500 shares, were issued to John O’Rourke; certificates 11, 12, 13, 14, and 15, for 2,500 shares, were issued to one Lisker; and certificates 16, 17, 18, 19, and 20, for 2,500 shares, were issued to one Le Claire. Although the authorized capital stock of the corporation justified the issuance of 20,000 shares, each having the par value of $1, no greater issue at any one time than 10,000 shares appears from the records, and, consistently with the agreement of the parties, one-fourth of this total issue, namely, 2,500 shares, was issued immediately after the incorporation to Carl Schultz, the husband of Mary Schultz, who had purchased a one-fourth interest in the property then held by the corporation. It n ay be observed that the 2,500 shares issued to Lisker have never been transferred, and are being now still owned by him, they may be eliminated from all further investigation as to subsequent, transfers or changes of ownership; and we have therefore to deal only with the 2,500 shares originally issued to Carl Schultz, the 2,500 shares originally issued to John O’Rourke, and the same number issued to Le Claire. Pursuing the inquiry chronologically, we find that on April 23, 1892, certificate 21, for 2,400 shares, was issued to Le Claire, and certificate 22, for 100 shares, was also issued to the same person, certificates 16, 17, 18, 19, and 20, formerly issued to Le Claire, being simultaneously canceled, and his holding being in no way modified by the new issue; on the same day, however, certificate 21, for 2,400 shares, was canceled, and certificate 23, for a like amount of shares, was issued to one Davis, trustee, thus still preserving the total amount of the original issue. At the close of that day the stock holdings, as disclosed by the certificates, were, therefore, as follows: Lisker, 2,500 shares; Carl Schultz, 2,500.shares; John O’Rourke, 2,500 shares; Le Claire, 100 shares; and Davis, trustee, 2,400 shares,' — a total of 10,000 shares, as before. On June 6, 1892, certificates 6, 7, 8, 9, and 10, for 2,500 shares, originally issued to John O’Rourke, were canceled, and five new certificates, numbered 24, 25, 26, 27, and 28, each for 500, and amounting in all to 2,500 shares, were issued to one Fransman, the transaction constituting a mere transfer of the original O’Rourke shares to Fransman. On the same day certificates 1, 2, 3, 4, and 5, issued to Carl Schultz for 2,500 shares, were canceled, and new certificates 29, 30, 31, and 32, for 500 shares each, and certificate 33, for 475 shares, were issued to Mary Schultz, and certificate 34, for 25 shares, was issued to Carl Schultz,— making a total reissue of 2,500 shares; the transaction being simply a transfer from Carl to Mary of 2,475 of the shares originally issued to him, and still preserving the issue of 10,000 shares; the holdings at the close of that day being, as shown by the certificates: Lisker, 2,500 shares; Fransman, 2,500 shares; Mary Schultz, 2,475 shares; Carl Schultz, 25 shares; Le Claire, 100 shares; and Davis, trustee, 2,400 shares. On June 16, 1892, we find that the shares represented by certificates 24, 25, 26, 27, and 28, which had theretofore been issued to Fransman, each for 500 shares, and amounting in all to 2,500 shares, and which had been transferred to Fransman by John O’Rourke, were canceled, and new certificates 35, 36, 37, 38, and 39, each for 500 shares,« and amounting in all to 2,500 shares, were issued to one Thomas O’Rourke, — the transaction being merely a transfer of the Fransman stock to Thomas O’Rourke, and still, preserving the original total issue of 10,000 shares; the stock holdings at the close of that day, as represented by certifi-. cates, being: Lisker, 2,500 shares; Thomas O’Rourke, 2,500 shares; Mary Schultz, 2,475 shares; Carl Schultz, 25 shares; Le Claire, 100 shares; and Davis, trustee, 2,400 shares, — a total of 10,000 shares, as theretofore. There seems to have been no change in the stock issue after June 16, 1892, until October 15, 1893, when certificate 23, issued theretofore to Davis, trustee, for 2,400 shares, was indorsed by-Davis, surrendered and canceled, and certificate 22, theretofore issued to Le Claire, was surrendered and canceled, and the stubs show that they were reissued to Matusevitz on October 15, 1893, though neither of the stubs specifies the number of the subsequent certificate by which the reissue was made. Manifestly this transfer of the Le Claire 100 shares, and the Davis, trustee, 2,400 shares, to Matusevitz, did not materially change the stock holdings, nor alter the total issue of 10,000 shares. The only certificate shown by the record to have been issued thereafter is certificate 40, the stub of which shows that it was issued to Matusevitz for 2,500 shares on July 24, 1894, and we are forced to conclude that this certificate is a reissue of ’certificates 22 and 23, which had theretofore been issued, respectively, to Le Claire, and Davis, trustee, and thereafter canceled, the stubs of which disclose that the stock represented by these certificates was reissued to Matusevitz, and hence we must believe that on July 24, 1894, the holdings, as shown by the certificates, were: Lisker, 2,500 shares; Thomas O’Rourke, 2,500 shares; Mary Schultz, 2,475 shares; Carl Schultz, 25 shares; and Matusevitz, 2,500 shares. We note that the stub of certificate 40, then owned by Matusevitz, as heretofore shown, explained that this certificate was surrendered by her, canceled, and reissued on July 25, 1894, to John O’Rourke, for 2,500 shares, but the stub does not show the number of the new certificate under which the reissue was made, nor does the record contain either the new certificate or its stub, but as the evidence does show that a certificate for 2,500 shares in the name of John O’Rourke was delivered to the referee, and by him lodged with the clerk of the district court, the inference is warranted that this refers to the old assigned certificate, No. 40, or that the new certificate, if issued, is numbered 41; and as certificate 40 had been therefore lawfully issued to Matusevitz, and had been transferred by her to O’Rourke, we are at least constrained to the conclusion that she was entitled to demand the issuance of a proper certificate to her assignee, and that such certificate issued to O’Rourke, as the transferee of Matusevitz, would have involved no improper exercise of power by the executive officers issuing it, and even if the paper representing these shares, and which is called a ‘ ‘stock certificate, ’ ’ was not signed by the proper officer of the corporation, nevertheless the assignment of 2,500 shares by Matusevitz to O’Rourke would at the least invest in him the right to have such a certificate properly issued, and would meanwhile transfer to him the full ownership of the shares which would be represented by that certificate when duly issued.

The foregoing is a correct chronological statement of all of the stock issues of the corporation, although there are some transfers by indorsement, (so called) not yet referred to, because not represented by issues of new certificates, and some difference of opinion may exist as to what particular prior issues are represented by subsequent issues; but, however essential these details may be to a complete narration of the stock transactions, they do not materially modify the relations of the parties to the stock holdings, nor do they affect the rights of the parties to this action. That we may not seem to have overlooked any of the features of the case, we deem it not improper to review briefly the other circumstances which are regarded as.significant and important by O’Rourke. The O’Rourke stock may now be eliminated, as the Lisker stock has alréady been, from all further investigations, as O’Rourke’s shares were merely transferred and reissued to Fransman, and then transferred and reissued to Thomas O’Rourke, no dispute concerning any of these issues or reissues having arisen.

Certificates 1 to 5 were originally issued to Carl Shultz, and 16 to 20 to Le Claire; no suggestion has been made involving a controversy as to the regularity of either of these issues. Certificates 1 to 5, for 2,500 shares, were surrendered by Carl Schultz, canceled and reissued under certificates 29 to 33, for 2,475 shares, in the name of Mary Schultz, and certificate 34, for 25 shares, in Carl’s name; there is no serious dispute as to the regularity of this transfer and reissue. Certificates 16 to 20, for 2,500 shares, originally issued to Le Claire, were surrendered and reissued under certificate 22 for 100 shares, in his name, and certificate 23 for 2,400 shares in the name of Davis, trustee, both of said certificates and the shares represented by them being then pledged to Davis, trustee, as security for the payment of a loan to Le Claire; this seems also to constitute neutral territory, and not to involve any dispute concerning the regularity of the proceedings or the rights of the parties. The subsequent transfers and transactions, however, seem to be regarded by O’Rourke as tending to establish the averments of his complaint. Mary Schultz, as owner and holder of certificates 29 to 33, amounting to 2,475 shares, indorsed them to her sister, Matusevitz, and Carl Schultz, as owner of certificate 34, for 25 shares, assigned 23 of them to Matusevitz;' it is insisted by the appellant, Mary Schultz, that these two transfers are represented by a reissue to Matusevitz under certificate 40, for 2,500 shares, while the respondent, O’Rourke, contends that certificate 40 represents other stock assigned to her. As the total number assigned to Matusevitz under certificates 29 to 34 is only 2,498 shares, and as the number represented by certificate 40 is 2,500 shares, we concur in respondent’s view, and conclude that certificate 40 represents (whether in whole or in part is of no importance upon this appeal) the original Le Claire stock, which was represented by certificates 16 to 20, and was subsequently issued by certificates 22 and 23, and pledged to Davis, trustee. It should seem, therefore, that Matusevitz became the assignee of all the original Schultz stock, excepting two shares, although no new certificates were issued to her for them, and became the assignee of all the original Le Claire stock, and received certificate Nd. 40 for the Le Claire shares. It may possibly be that certificate 40 represents all of the shares (2,498) assigned to Matusevitz under certificates 29 to 34, and also two shares only out of the original Le Claire stock; in any event, at least two of the Le Claire shares must necessarily have been reissued by certificate 40 for 2,500 shares.

Under these circumstances, O’Rourke claims, in the first place, that Mary Schultz did not own shares of stock at any time during the pendency of the former suit, and therefore could not transfer 2,500 shares to him in fulfillment of her obligations; and, in the second place, that, if she did own 2,500 shares at one time during the pendency of that action, they were levied upon and sold while the action was pending, under execution issued out of a justice’s court upon a judgment against Mary and Carl Schultz. Since there is no conflict in the evidence relating to this subject, it becomes our duty to ascertain whether the inferences that may reasonably be deduced from the undisputed facts justify the order of the court below.

Matusevitz did not testify in the case at bar, but the records of the corporation show that 4,998 shares of stock, represented by regularly issued certificates, were duly assigned to her by the holders of the stock. The corporation has in no way questioned the regularity of the proceedings by which these issues or transfers were made, nor has any one testified to facts which might suggest a well-founded doubt as to the regularity of the transfers to her, though counsel indulge in vigorously expressed suspicions respecting the purpose for which the transfer of the Schultz stock to Matusevitz was made; and also pronounce certificate 40 to be a forgery, because the person who signed it as secretary was not lawfully elected to that office, thus seemingly overlooking the fact that, if the transfer of the shares to her was valid, no irregularity whatever in the mere issuance of the paper certificate could affect her rights or lessen the extent of her ownership.

After an exhaustive examination of the transcript, we find no evidence tending to create a substantial doubt as to the accuracy of the corporation’s records in the particulars mentioned, and from them it appears that at the time when the former suit was commenced, and ever since April, 1893 (possibly since February of the same year), the legal title to the original 2,500 Schultz shares of stock, excepting the two shares retained by Carl Schultz, was and has been in Matusevitz. Without, therefore, considering the regularity or legal sufficiency of the proceedings, on the execution against the property of Mary Schultz, we must conclude that they did not affect the 2,498 shares which had been duly assigned to Matusevitz in February or April, 1893, and which from that time stood on the records of the corporation in her name. Neither could they reach, had the attempt been made to do so, the 2,500 shares transferred to her in October, 1893, and ultimately represented by certificate No. 40, and likewise standing in her name on the books of the corporation.

The respondent, O’Rourke, further contends, however, that Matusevitz did not succeed to the ownership of the Le Claire stock which was pledged to Davis, trustee, and in support of this contention he claims that, while it is conceded that the pledgee’s lien was legally enforced, and the pledged stock properly sold by auction to Carl Schultz, he was unable to transfer title to Matusevitz, because the purchase at the pledgee’s sale was made with the understanding that O’Rourke was to become entitled to an equal one-third interest in the Le Claire stock then purchased, he to pay his equal proportion of the purchase price thereof. The record shows that this stock was transferred to Matusevitz, and, while counsel differ as to who purchased and who paid for the stock, no attempt has been made to show that Matusevitz had ever heard of the agreement among Lisker, Carl Schultz, and O’Rourke concerning O’Rourke’s supposed interest in that purchase; nor was the evidence sufficient to charge Mary Schultz with such knowledge, even conceding that her knowledge of the agreement would be an important item; and hence, in the absence of any proof to the contrary, we are, of course, obliged to conclude that Matusevitz became the legal owner and assignee of these shares, as shown by the books of the corporation. Furthermore, we cannot appreciate the alleged strength of respondent’s application for relief to a court of equity, in so far as it rests upon the right to have an undivided one-third interest in the stock, when he does not pretend to have ever paid or contributed any portion of the purchase price to any person.

We conclude, therefore, that on and after October 15, 1893, the outstanding and issued shares of the corporation stock were held as follows, as shown by the records of the corporation: Lisker, 2,500 shares; Thomas O’Rourke, 2,500 shares; Matusevitz, 4,998 shares; and Carl Schultz (or his successor in title under execution sale), 2 shares.

In these circumstances, the present defendant and appellant, Mary Schultz, as plaintiff in Schultz v. O' Rourke, filed with the referee in that case a certificate numbered 40, for 2,500 shares, issued to Matusevitz, and indorsed by her to O’Rourke, which certificate so indorsed and assigned was subsequently-filed with the clerk of the district court for the benefit of O’Rourke, then the defendant, but now the plaintiff. The respondent contends that this certificate was issued through some questionable proceedings whereby the secretary of the corporation was removed and a new secretary elected, and he therefore claims that the certificate is irregular and void. In making this contention he has overlooked the fact, already adverted to, that the certificate is a mere muniment of title, and that if Matusevitz was the owner of the 2,500 shares mentioned in that certificate, as we think she was, no defect in the certificate would impair her ownership of those shares, or his right thereto as her assignee. Respondent has overlooked also the further fact that, when these shares of stock and the certificates representing them were offered at the former trial, he refused them for reasons other than the supposed defects in the certificate, although the certificate bore upon its face sufficient to notify him of the defects of which he now complains. Having the opportunity and means of knowledge at hand, he should have pointed them out at the time. In the opinion rendered in the former suit this language was used: “Upon the trial there was a formal tender of 2,500 shares, indorsed in blank, it appears, and a demand of the return of <¡52,500 paid for the stock. * * * No objection was made to the sufficiency of the tender or to its form, except that the stock was attached, as defendant was informed. The defendant cannot now urge any reason for refusing the stock offered on the trial, other than that expressly relied on. He is held to have waived the objections that plaintiff did not have the stock in her own name. * * * The identical shares originally made over to her were not necessarily the only shares which she could return to defendant. As said, one share was as good as another, and represented the same interest in the property.” The 2,500 shares offered to O’Rourke by Mary Schultz had not been attached, nor had any attempt been made to reach or to sell them, and, if this record correctly discloses the condition of the corporation’s stock, O’Rourke was and is entitled to have stock certificate 40 canceled, and a new certificate issued to him for 2,500 shares, in strict conformity to the agreement between him and Mary Schultz, and in fulfillment of her obligations to him as declared in the judgment rendered in the former action. If O’Rourke has been deprived by Carl or by Mary Schultz, or by both of them, of the right to share equally in the benefits and bear proportionally the burdens arising from the purchase of the Le Claire stock, he may be able to obtain adequate relief in some appropriate action or proceeding for that purpose, but his proofs in the present case certainly make no such showing as would entitle him to charge with this supposed equity the 2,500 shares owned by Matusevitz, and acquired by her free from such equities, and decline to receive them from Mary Schultz (who is not shown to have had knowledge or notice of the arrangement by which Carl Schultz purchased the Le Claire stock for the benefit of Lisker, himself, and O’Rourke) in discharge of her obligations to him. We have already repeated the language of the opinion in the former case: “The identical shares originally made over to her were not .necessarily the only shares which she could return to the defendant. As said, one share was as good as another, and represented the same interest in the property;” and such is the law of the case. In further illustration of this manifest truth, we may say that if Schultz had purchased or otherwise acquired the 2,500 shares owned by Lisker, and offered them to O’Rourke, he could not have refused them; and with equal force it may be said that one share is no worse than another, and that, therefore, the offer of the Matusevitz shares constituted as complete a compliance with the conditions of her contract as the offer of other shares derived from a different source.

Restricted, as we must be, in our inquiry, to the contents of the record before us, we can discover in this case no facts which justified the district court in restraining the execution of the judgment heretofore made by it and affirmed by this Court. The order appealed from is therefore reversed, and the cause remanded.

Reversed and remanded.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    TUOHY’S ESTATE, PAUWELYN, EXECUTOR, Appellant.
    [No. 1,480.]
    ON MOTION TO DISMISS APPEAL.
    Decided October 26, 1899.]

      Appeal in Probate Proceedings— Order Directing Execution of Lease — Statute.
    1. An appeal is authorized by statute only, and, unless the subject matter of an appeal falls fairly within the statute, the appeal does not lie.
    2. Under Code of Civil Procedure, Section 1722, as amended by Session Laws 1899, p. 146, providing that appeals may be taken (Subdivision l) from all final judgments (Subdivision 2), from orders granting or refusing new trials, orders in extraordinary proceedings, interlocutory orders, and special orders after judgment, and (Subdivision 3) from judgments or orders in probate proceedings, appeals from judgments and orders in probate proceedings are only allowable under Subdivision 3, except in the granting or refusing a new trial, which may be taken under Subdivision 2.
    3. Under Code of Civil Procedure 1895, Section 1722, as amended by Sess. Laws 1899, p. 146, an order of the district court directing an executor to execute a lease of certain realty belonging to his testator’s estate, is not a “final judgment in a special proceeding” from which an appeal will lie. (in re McFarland’s Estate, 10 Mont. 446, and In re Higgins’ Estate, 15 Mont. 475, distinguished.)
    4. Under Code of Civil Procedure, Section 1722, Subdivision 3, as amended by Sess. Laws 1899, p. 146, providing that appeals may be taken from orders directing a conveyance of realty in probate proceedings, an appeal will not lie from an order directing the execution of a lease of realty, as “conveyance,” as used in the statute, does not include a lease.

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

    Proceeding in the estate of James Tuohy, deceased. Erom an order directing Cyril Pauwelyn, executor, to execute a lease of certain realty, he appealed. One McSherry and and another, who were made respondents, moved for a dismissal of the appeal.
    Dismissed.

      Messrs. Pemberton & Maury, for Appellant.

      Mr. W. L. Lippincott and Mr. D. Gay Stivers, for Respondents.
   PER CURIAM.

Motion to dismiss appeal. Cyril Pauwelyn, as executor of James Tuohy, deceased, seeks herein to have reviewed on appeal an order made by the district court of the Second Judicial District, sitting as a court of probate, directing him to execute a lease of certain mining ground belonging to his testator’s estate to C. J. McSherry and D. J. Ryan at a fixed rental for the term of two years. McSherry and Ryan, who are made the respondents, ask that the appeal be dismissed on the ground, among others, that the order is not appealable.

An appeal is authorized by statute only and, unless the judgment or order which it is sought to have reviewed in this mode falls fairly within the enumeration of appealable orders or judgments made by the statute, the appeal does not lie. (Hayne on New Trial & App., Sec. 181.) Appeals from district courts in this regard are provided for in Section 1722 of the Code of Civil Procedure, as amended by the Session Laws of 1899, p. 146. Under this section we find three classes, of judgments or orders from which appeals may betaken. Subdivision 1 includes all final judgments; subdivision 2 enumerates orders granting or refusing á new trial, orders made in extraordinary proceedings, interlocutory orders and special orders after final judgment; subdivision 3 enumerates judgments or orders in probate proceedings. This section was copied into our Code substantially from the Code of California. Though appeals are provided for therein not recognized by the Code of that state, the theory of classification is the same in both Codes. (Estate of Calahan, 60 Cal. 232.) The case cited involved the question whether an appeal lies from an order vacating a decree of distribution. The court observes: ‘‘It is quite clear that the first and second classes embrace judgments and orders other than those made in probate proceedings, and that the third class embraces only such as are made in such proceedings. ’ ’ The order was held to be nonappealable, because not enumerated among those declared in that class to be appealable. It was also held in that case that this order is not included in the second class, under the head of ‘‘any special order made after final judgment,” for the reason that the final judgment there mentioned refers to the judgment mentioned in the first class, that is, “a final judgment entered in an action or special proceeding commenced in a district court, or brought into a district court from another court.” In a later case (In re Smith’s Estate, 98 Cal. 636, 33 Pac. 744) in considering the same statute, it was determined that the term “final judgment,” as used therein, “applies only to those judgments known at common law as ‘final judgments,’ and that as to the statutory determinations termed ‘orders or judgments, ’ defined in the third subdivision, the term ‘final judgment’ does not apply.” Similar questions under this statute have been considered in the following cases by the same court: (In re Walkerly’s Estate, 94 Cal. 352, 29 Pac. 719; In re Dean’s Estate, 62 Cal. 613; In re Moore's Estate, 86 Cal. 58, 24 Pac. 816; In re Wiard’s Estate, 83 Cal. 619, 24 Pac. 45; In re Lutz’s Estate, 67 Cal. 457, 8 Pac. 39; In re Bauquier’s Estate, 88 Cal. 302, 26 Pac. 178, 532.) In this latter case it was held that an appeal from an order granting or denying a new trial lies under the provisions of - the second subdivision, because this provision is made applicable to probate proceedings by a section of the title pertaining to probate procedure the same as is found in our Code of Civil Procedure in Section 2921.

These cases furnish support for the rule, which seems entirely reasonable, that appeals from judgments or orders in probate proceedings are allowed only under the provisions of subdivision 3, except in the single case of an order granting or refusing a new trial, which may be taken under subdivision 2, as provided by section 2921, supra.

Counsel for the executor cite In re McFarland’s Estate, 10 Mont. 446, 26 Pac. 185, and In re Higgins’ Estate, 15 Mont. 475, 39 Pac. 506, in support of the position that the order appealed from is a final judgment in a special proceeding, and therefore appealable under the first subdivision of section 1722, supra. They call attention to the fact that similar orders were in these cases held to be final judgments, and appealable, under Section 421 of First Division of the Compiled Statutes. It is sufficient to say of these cases that the Compiled Statutes contained no provision similar to the one under consideration. Moreover, up to the admission of the territory into the Union as a state, we had special probate courts, and no appeal to this Court lay directly from these courts. (In re McFarland's Estate, supra.) Orders and judgments made therein could be reviewed, in the first place, only in the district court. Upon the organization of the state government, probate jurisdiction was given to the district courts by the Constitution (Constitution, Art. VIII, Sec. 11; Schedule, Sec. 4), and thereafter appeals to this Court from judgments or orders in these proceedings were possible only by classifying them under the head of special proceedings, and allowing appeals, under Subdivision 1 of- Section 421 of the First Division of the Compiled Statutes, which was by the Constitution continued in force, so far as applicable, to the new condition of things. Our present Code, while retaining the first subdivision of Section 421, supra, of the Compiled Statutes, makes special provision in section 1722, as we have seen, for appeals from judgments and orders made in probate proceedings, and thus renders obsolete the construction given to this subdivision in the two cases referred to. These cases are therefore no authority to support the contention of the appellant.

The order here considered is nowhere specifically mentioned in subdivision 3, unless it is included under the head of an order “against or in favor of directing the partition, sale or conveyance of real property, ’ ’ and whether it is provided for here turns upon the construction to be given to the word “conveyance.” In the Civil Code, Section 1642, the term £ ‘conveyance for the purposes of recordation’ ’ embraces ‘ ‘every instrument in writing by which an estate or interest in real property is created, aliened, mortgaged or incumbered, or by which the title to real property may be affected, except wills. ’ ’ Under section 1641, leases for terms exceeding one year are required to be recorded. Therefore this class of leases falls within the meaning of “conveyance,” as used in section 1642. But we apprehend that the term, as used in section 1722, supra, is used in a more restricted sense, and falls within the definition of that term as applied to the actual transfer of the title to lands and interests therein, and does not include the hiring of real estate at a fixed rental for a term of years. The definition given to the term in the Civil Code, it seems clear, is to make plain the meaning of the provisions of that Code touching recordation, and is not designed to change the more restricted, technical meaning in which it is used in the books. In the Code of Civil Procedure, wherever the word is used, it seems to be used in this narrower sense. (Section 2640 et seq.) We find support for this view in the following authorities: Mayor, etc. v. Mabie, 13 N. Y. 151; Des M. Co. Agr. Society v. Tubbessing, 87 Iowa, 138, 54 N. W. 68; Perkins v. Morse, 78 Me. 17, 2 Atl. 130; Sullivan v. Barry, 46 N. J. Law, 1; Kinney v. Watts, 14 Wend. 38; Tone v. Brace, 11 Paige, 566; Abendroth v. Town of Greenwich, 29 Conn. 356. In Sullivan v. Barry, supra, the court say: “But neither the word ‘convey’ nor ‘incumber,’ according to its ordinary signification, is expressive of the act of creating a tenancy for years in lands. The former of the terms is appropriate to the transfer of a title to a freehold; the latter, to putting the property in pledge for the payment of money. That the word ‘conveyance’ does not, when standing without assistance in a statute, signify its applicability to the passing of a chattel interest in realty, is clearly indicated in the cases of Kinney v. Watts, 14 Wend. 38, and Tone v. Brace, 8 Paige, 598.” (11 Paige, 566.)

We therefore hold that an appeal does not lie from the order in question, and that the appeal must be dismissed.

Dismissed.


text:
    O’ROURKE et al., Respondents, v. SHERMAN, Appellant.
    [No. 1,164.]
    [Submitted October 25, 1899.
    Decided October 30, 1899.]

      New Trial — Insufficiency of Evidence — Discretion of Trial Judge.

    The Supreme Court will not disturb the discretion of the trial court in granting a new-trial, on the ground that the evidence was insufficient to sustain the verdict, where the record discloses a substantial conflict as to material matters.

      Appeal from District Court,, Silver Bow County; J. J. Mc-Ilatton, Judge.

    Action by John O’Rourke and Daniel O’Sullivan against E. H. Sherman. There was a verdict and judgment for defendant, and a new trial granted on motion of plaintiffs. From the order granting new trial, defendant appealed.
    Affirmed.

      Mr. John W. Goiter, for Appellant.

      Mr. Chas. JR. Leonard, for Respondent.
   PER CURIAM.

— Action to recover $1,233.76, alleged to be due by defendant under the terms of a written lease between plaintiffs as lessors and defendant as lessee. Defendant denied the indebtedness and alleged a surrender of the lease and an assignment of all his interest therein, with plaintiffs’ consent, and for the consideration of a release of his obligations thereunder, to the firm of T. J. Sherman & Co., of which firm defendant alleged plaintiff, O’Rourke, and defendant, and others were members. Trial to jury. Yerdict and judgment for defendant. Plaintiffs’ motion for a new trial upon the ground of the insufficiency of the evidence to sustain the verdict was granted. Defendant appeals from the order granting a new trial.

The record discloses a substantial conflict in the evidence as to material matters. The action of the trial court was therefore within the exercise of its sound discretion and cannot be disturbed by this Court. The order appealed from is affirmed.

Affirmed.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    MONTANA MINING CO., LIMITED, et al., Respondents, v. ST. LOUIS MINING & MILLING CO. et al., Appellants.
    [No. 1,166.]
    [Submitted October 23, 1899.
    Decided November 6, 1899.]

      Injunction — Action on Bond — State and Federal Courts— Pleading — Judgment on the Pleadings — Damages.
    1. In an action in a state court on an injunction bond given in a federal court, conditioned to pay damages “if the court should finally determine that plaintiff was not entitled thereto,” the complaint alleged a final determination of the injunction suit by a judgment dismissing the cause. The answer alleged, by way of avoidance, that a suit was pending in the federal court, involving the title to the property in contror versy, but it did not allege that plaintiffs or defendants were interested therein. It also alleged that a suit by plaintiffs in the state court to determine the right to the property was also pending, but it did not allege that defendants had any interest in said suit. Held, that the answer did not show that the action was prematurely brought.
    2. An injunction bond given in a federal court may be sued on in a state court without an order of the federal court granting leave when a final disposition of the injunction suit has been made by the entry of judgment of dismissal, with costs against the plaintiff.
    3. Judgment on the pleadings is proper when the complaint is sufficient, and none of its material allegations are denied, and no affirmative matter alleged to defeat the action.

      Obiter: Where judgment is rendered on the pleadings, it is not necessary, under Code of Civil Procedure, Sections 754,1020, for the trial court to hear proof to determine the amount of damages.

      Appeal from District Court, Lewis and Clarke County/ H. C. Smith, Judge.

    Action by the Montana Mining Company, Limited, and others, against the St. Louis Mining & Milling Company of Montana, and others. From a judgment for plaintiffs, defendants appeal.
    Affirmed.

      Statement oe the Case.
    This action was brought to recover damages upon an undertaking on injunction executed by the defendants to the plaintiffs to indemnify them in‘a suit instituted by the defendant corporation against the plaintiffs in the circuit court of the United States, on September 16, 1893. The covenant of the undertaking is as follows: “Now, therefore, we, the undersigned, resident freeholders of the state of Montana, do undertake and promise to the effect that the plaintiff herein will pay to the said defendants so enjoined and restrained as aforesaid such damages, not exceeding the sum of one thousand ($1,000) dollars, as such parties may sustain by reason of the injunction, if the court finally determine that the plaintiff was not entitled thereto.”
    The complaint alleges that on the 16th day of September, 1893, an action was brought by the defendant, the St. Louis Mining & Milling Company of Montana, against all the above-named plaintiffs in the circuit court of the United States, of the Ninth circuit, district of Montana; that a restraining order was duly issued out of said court on the 20th day of September, 1893, and served upon these plaintiffs; that under and by virtue of said order the plaintiffs, their agents, servants and employes, were enjoined and restrained from in any manner working, mining, excavating, or removing any ore from certain mining property situated in the county of Lewis and Clarke, state of Montana; that upon- the issuance of said restraining order the defendant, St. Louis Mining & Milling Company of Montana, executed and filed in the office of the clerk of the circuit court the said bond or undertaking as required by the restraining order; “that thereafter such proceedings were had in said cause that the judge of said court on or about the 3d day of. October, 1893, dissolved and set aside the said restraining order, and did finally adjudge and determine that the said defendant, the St. Louis Mining & Milling Company of Montana, was not entitled thereto”; that thereafter, on or about the 17th day of January, 1894, the said cause was dismissed, and final judgment entered therein in favor of these plaintiffs and against the defendant, St. Louis Mining & Milling Company of Montana; that these plaintiffs, in obedience to said restraining order, were compelled to and did cease working and mining the property aforesaid from the 26th day of September until the 3d day of October, both days included; that the plaintiff, Montana Mining Company, Limited, was greatly injured and damaged by reason of the delay in working and mining said ground, and obtaining ore therefrom to keep its mill employed; that the said plaintiff was put to great expense in employment of counsel and the preparation of evidence to secure a dissolution of said injunction; and that the damages so suffered amounted to above the sum of f 1,000.
    The defendants admit in their answer all the allegations of the complaint, and by way of avoidance, among other things, allege: “And these defendants aver that the said suit, wherein the said restraining order and injunction mentioned and set forth in the said complaint of the plaintiff, was for the purpose of preserving the property until the final determination of an action then pending in said court wherein the said injunction was granted, in which the title to said property was involved, and which has not yet been determined in said court. And they further aver that the said plaintiffs in this action, for the purpose of determining the question of the right to the said property, instituted an action in this Court, which said action is yet pending and undetermined in the Supreme Court of the State of Montana, and which action involves questions which are and may be tried, on an appeal from any decision that the said Supreme Court of the State of Montana may make therein, in the Supreme Court of the United States, by reason whereof none of the questions, according to the terms and conditions of the undertaking sued upon, have been finally determined, and this action is prematurely brought. Defendants, for further answer, show unto this honorable Court that no order was ever made by the said United States circuit court, or the judge thereof, authorizing or justifying any suit or action upon the bond sued upon, by reason whereof the said action is prematurely brought, and on account whereof no recovery should or ought to be had therein. ’ ’
    After the filing of this answer, the plaintiffs moved the court for judgment on the pleadings, upon the two grounds: (1) That the answer contains no denial of the material allegations set forth in the complaint; and (2) that it does not state facts sufficient to constitute a defense or counterclaim thereto. This motion was granted, and the court, • after hearing proof, rendered judgment against the defendants for the full amount of the penalty of the bond. From this judgment the defendants appeal.

      Mr. Thomas C. Bach and Mr. ErJvrLn W. Toole, for Appellants.
    Assuming that the jurisdiction of the trial court is to be maintained under the decision of this Court heretofore made, the right to determine all legal propositions legitimately involved necessarily follows.
    First. ■ Among these we insist that this bond, having been given in an equity suit in the Circuit Court of the United States, the right to recover damages upon it depends upon the exercise of the discretion of that court, which is as much a condition of the bond as though expressed in it. Hence we claim that the right to recover the damages sought to be recovered should have been passed upon by the court in which the bond was required and executed. It was within the province of that court to require a bond or not, and equally within its province to determine whether an action should be maintained upon the same. This being a part of the conditions of the bond, can this Court dispense with the exercise of the discretion mentioned and try the rights of the parties under the conditions of the bond given conditioned in pursuance of the provisions of the statutes of the state of Montana ? There was an action to determine the title to the property still pending, and it was an implied condition of the bond that leave to sue in another jurisdiction should first be granted by the court in which the bond was given, i. e., it will appear from the authorities that leave even to sue in the court in which it was given was necessary. This is eminently proper, as the court might say that the question as to the right of preliminary injunction is not yet finally determined, and that both action and order may be reinstated when the title question is ultimately settled. So this discretion was a material one, yet unexercised, and upon these points we cite the following cases: Coosaw Min. Co. v. Farmers’’ Min. Co., 51 Fed. 107; Brown v. Easton, 30 N. J. Eq. 725; Bussell v. Farleigh, 105 IT. S. 133; Meyer v. Block, 120 IT. S. 206; Foster Fed. Prac., 2d Ed., Sec. 237 and bot. p. 236; Bien v. Heath, 12Howard U. S. 168; High on injunctions, 3d Ed., Sec. 1656.
    Hence, if the court had jurisdiction to try the case, the record shows that the discretion contemplated and order re-' quired were never made, and that the condition of the bond thus implied has never been broken. Giving the right to the Circuit Court of the United States, or the judge thereof, to define the conditions of the bond, we claim that there was no such determination of the rights of the parties as would justify a recovery in this action. It would seem, in all reason, to follow that the action being simply in aid of an action at law, and not to control the legal title to property, cannot be said to be a final determination until a final determination of the rights of the parties, in which the aid of the court of equity was invoked simply for the purpose of preserving the property during the litigation over its title. The court directed the execution of a statutory bond, as shown by the bond itself. The conditions expressed, as judicially interpreted, do not refer to a dissolution of the restraining order, but the final determination of the merits of the contention to which it is ancillary. Here it was to preserve the property, and the condition is that it must be finally determined that the plaintiff was not entitled to the injunction. The liability of the sureties is controlled by the recitals in the bond, and the presumptions follow that the United States courts intended the statutory bond to receive the construction given, it by the state courts. Whether it did or not, the sureties have a right to stand upon it. (Palmer v. Foley, 71 N. Y. 106.) The actions cannot be united in the United States courts, and by the terms of the bond, it is not finally determined until the action set up in the answer, in which it was in aid of, is finally determined. (Clark v. Clayton, 61 Cal. 634; Dougherty v. Dore, 63 Cal. 170; especially Creek v. McManus, 13 Mont. 152.) Here, as shown by the pleadings, there was pending a main cause of action involving the title to the property, and the temporary restraining order was simply to preserve it. (Miles v. Fdwcvrds, 6 Mont. 190; Dein et al. v. Heath, 12 Howard U. S. 168; High on Injunctions, Sec. 1656.) And upon this proposition we cite the following authorities: Creek v. Mc-Manus et al., 13 Mont. 152, and the authorities and reasoning there used, supra; High on Injunctions, 3d Ed., Secs. 1640, 1656; Jones v. Ross, 29 Pac. 680; Drown v. C. M. <& 8. Co., 4 id. 1016, bot. p.; 8tewa/rt v. Miller, 1 Mont. 301. Keeping the distinction in view, referred to in 13 Mont., supra, and it would seem this proposition is sound.

      Messrs. Cullen, Day <& Cullen, for Respondents.
   MR. CHIEF JUSTICE BRANTLY,

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

Defendants contend that the judgment of the district court is erroneous, m that the action for injunction instituted by the defendant corporation in the circuit court of the United States, wherein the undertaking in question was given, was merely ancillary to an action at law then pending in the same court, and not yet determined, the object of which is to settle a controversy between the plaintiff and defendant corporations as to the title to the mining property involved; that the purpose of the injunction suit was to preserve the property pending the determination of the question of the ownership of it, and that the covenant in the undertaking has not been broken, because the circuit court has never finally determined this' question adversely to the defendant corporation; and therefore that it was not entitled to have the injunction issued. They argue that, if the judgment is sustained, and hereafter, upon a termination of the suit at law in the circuit court, it be finally adjudged that the defendant corporation is the owner of the property, it will be demonstrated that they have been compelled to pay damages for which they should not in any event be held liable; therefore the suit cannot be maintained until the suit at law is finally determined adversely to the defendant corporation. To sustain this contention they cite Palmer v. Foley, 71 N. Y. 106; Clark v. Clayton, 61 Cal. 634; Dougherty v. Dore, 63 Cal. 170; Creek v. McManus, 13 Mont. 152, 32 Pac. 675; Miles v. Edwards, 6 Mont. 180, 9 Pac. 814; Bein v. Heath, 12 How. (U. S.) 168; High on Injunctions, Secs. 1640, 1656; Jones v. Ross, 48 Kan. 474, 29 Pac. 680; Brown v. Galena M. & Smelting Co., 32 Kan. 528, 4 Pac. 1016; and Stewart v. Miller, 1 Mont. 301. Attention is also called to the procedure in the United States courts, under which legal and equitable relief cannot be had in the same action, but parties desiring extraordinary equitable relief in aid of an action at law must bring separate suits for that purpose, addressed to the equity side of the court. That this is so, however, they say, in no wise changes the rule that the main controversy must be finally determined before a suit can be maintained upon the undertaking. Conceding the law to be as they claim, this position is not tenable, under the pleadings in this case, for the reason that the affirmative matter set up in the answer falls far short of showing a case in which the rule can apply. It is alleged in the answer that a suit was pending in the circuit court involving the title to the .property in controversy, and that it is still pending; but there is no suggestion that the plaintiffs in this case, or any of them, are in any wise interested in the event of it, or that they are parties to it. It is not even averred that any of the defendants are interested in it as parties or otherwise. It is alleged in the complaint, and not denied in the answer, that the injunction suit has been finally determined. No matter what may be the condition of things with reference to the title and the litigation.over it, nothing is stated in this regard in this case to show why this action should not proceed. The same may be said as to the action now pending in this Court on appeal. Nothing is alleged in the answer touching this to show that-the defendants are interested in it. And, if there were, it would not aid the defendants, because the plaintiffs are actors therein.

The defendants argue, also, that the judgment was improperly granted, because it was discretionary with the circuit court to allow a suit to be brought upon an undertaking entered into under an order made by it, and that, as no order was made allowing-this suit to be brought in the state court, it is premature. In other words, the plaintiffs may not invoke the jurisdiction of the state court, or proceed at law upon the undertaking, until they are authorized by an order of the federal court to do so.

It was held in this case by this Court (19 Mont. 313, 48 Pac. 305) that the state court has jurisdiction; conceding, for the sake of argument, that the federal court could award or refuse damages in finally disposing of the injunction proceeding. That court made a final disposition of the case by entering a judgment of dismissal, and awarding costs against the plaintiff therein. This was tantamount to a direction to the defendants to go for relief to the tribunal of their choice.

Judgment on the pleadings is proper where the complaint is sufficient, and none of its material allegations are denied, and no affirmative matter alleged to defeat the action. (City and County of San Francisco v. Staude, 92 Cal. 560, 28 Pac. 778; Power v. Gum, 6 Mont. 5, 9 Pac. 575.)

The district court heard proof to determine the amount of damages. This was not necessary. (Sections 754, 1020, Code of Civil Procedure.)

Pet the judgment be affirmed.

Affirmed.


author: PER CURIAM

text:
    WASHOE COPPER CO., Respondent, v. HICKEY, et al., Appellants.
    [No. 1,465.]
    [Submitted October 13, 1899.
    Decided November 6, 1899.]

      Appeal and Error— Undertaking on Appeal — Jurisdiction— Record. _¡__□
    1. A court granted, first, a restraining order, then an order continuing in force the restraining order and directing an injunction pendente lite to issue, and afterwards entered another order making the restraining order absolute and directing that the defendants be enjoined until further order; and defendants filed notice of appeal “from the order continuing the restraining order issued therein in force, and from the order granting an injunction against defendants pending the final determination of tills action, and from the injunction order granted herein,” and the undertaking on appeal, which was in the sum of $300, recited that, “whereas defendants have taken an appeal from the orders in said cause continuing a restraining order in force, granting a temporary injunction, and from said order of temporary injunction,” and the defendants in their brief on appeal assigned the orders as separate errors. Meld, that the appeal should be dismissed, as said undertaking was void on account of ambiguity, because it could not be referred to either of the orders from which the appeal was sought, although one of said orders was not appealable. (Following Creelty. Bozeman Water Works Go., 23 Mont. 327; and Murphy V. Northern Pac. My. Go., 22 Mont. 577.)
    2. The statute providing for appeals must be strictly complied with.
    3. The supreme court has no jurisdiction to entertain the appeal, where the appellant fails to file a proper undertaking on appeal.
    4. Where a record on appeal contains a certificate of the trial court’s clerk, as required by Code of Civil Procedure, section 1739, providing that such clerk shall certify that “an undertaking in due form has been properly filed.” an undertaking may be shown to be void for uncertainty by filing a certified copy of the same in the supreme court, where such copy does not tend to contradict the record as to any matter of fact.

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

    Action by Washoe Copper Company against Edward Hickey, Michael A. Hickey, John H. Steward, F. Augustus Heinze and Arthur P. Heinze. There was judgment for plaintiff, and defendants appeal.
    Appeal dismissed.

      Messrs. Me Hatton da Cotter, Clayberg da Corbett, Mr. Cha/rles R. Leonard and Mr. Robt. B. Smith, for Appellants.

      Mr. William Scallon, Mr. J. K. McDonald and Mr. T. J. Walsh, for Respondent.
   PER CURIAM

This action was brought by plaintiff in. the district court of Silver Bow county to recover the possession of certain underground workings within the vertical planes of the boundaries of the Oden lode mining claim, and the ore deposits therein, situate in Silver Bow county, and to secure an injunction perpetually restraining the defendants from trespassing thereon, and removing therefrom any of the ore deposits. Upon the filing of the complaint, an order was made by the district judge requiring the defendants to appear before the court on April 22, 1899, to show cause why an injunction pendente lite should not issue, and directing them, until the hearing, to refrain from extracting and removing any.ore from the workings in controversy. On April 22d a hearing was had. At its conclusion the defendants moved the court to set aside and vacate the restraining order theretofore issued. Thereupon the court overruled this motion, and made an order continuing in force the restraining order, and directing an injunction pendente lite to issue when the plaintiff should execute a bond in the sum of $25,000. On May 27th, the required bond having been given, the court entered another order making the restraining order absolute, and directing that the defendants, their agents and employes, be enjoined, until further order, in accordance with the prayer of the complaint.

Thereupon the defendants served and filed their notice of appeal ‘ ‘from the order * * * continuing the restraining order issued therein in force, and from the order granting an injunction against the defendants pending the final determination of this action, and from the injunction order granted herein.” The undertaking on appeal is in the sum of $300. It contains this recital: “Whereas, the above-named defendants have taken an appeal from the orders of the district court made in the above-entitled action continuing a restraining order in force granting a temporary injunction, and from said order of temporary injunction: Now, therefore, if the above-named defendants and appellants shall pay all damages and costs which may be awarded against them on said appeal, or on the dismissal thereof, not exceeding the sum of $300, then this obligation shall be null and void; otherwise, to remain in full force and effect. ’ ’

The transcript on appeal was filed in this court on August 30, 1899. On October 2d, upon application of appellants under Subdivision 3 of Eule YII of this Court (44 Pac. vii), the cause was advanced, and set for hearing on the 13th of that month. On October 11th, the respondent, after obtaining an order from this Court shortening the time of notice required by Section 1822, Code of Civil Procedure, filed a' motion to dismiss the appeal on the ground that it was taken from two separate orders, whereas but one undertaking on appeal in the sum of $300 had been filed. The motion was set for hearing on October 13th, when the motion and the case on the merits were submitted together. At the hearing, counsel for appellants argued that the appeal was really taken from the order granting the temporary injunction, and was not designed to include any other order. Therefore the undertaking in the sum of $300 is sufficient to secure the appeal. But this argument is not sustained by the facts. It is apparent from the foregoing statement of the facts that the intention was to have this Court review the action of the district court in the making of both orders. Also in the brief of appellants, filed in this Court on October 2d, the orders are assigned as separate errors, and treated as such; counsel assuming that, whatever this Court should feel authorized upon the record to do with reference to the order of May 27th, it should, in any event, reverse and annul the order of April 22d.

The simple question presented, therefore, is as to the sufficiency of the undertaking to secure the appeal. We hold that it is not sufficient, in that it does not state which appeal it was intended to secure. This case comes clearly within the rule of Creek v. Bozeman Water Works Co., 22 Mont. 327, 56 Pac. 362, and Murphy v. Northern Pac. Railway Co., 22 Mont. 577, 57 Pac. 278, viz., that the undertaking is void for ambiguity, because it cannot be referred to either of the orders from which an appeal is sought to be taken. And it makes no difference that either of the orders is not appealable. Under the principle of Creek v. Bozeman Water Works Co, supra, the Court will not look into the record to determine whether this is so. The statute providing for appeals must be strictly complied with. A failure on the part of the appellant in this regard leaves this court without jurisdiction to entertain the appeal.

The certificate of the clerk of the district court, attached to the transcript, is in conformity with the provisions of the Code of Civil Procedure, Section 1739. In aid of the motion to dismiss, counsel for respondent presented with the motion a certified copy of the undertaking on appeal. Counsel for appellants insist that this court cannot look beyond the certificate of the clerk to determine whether the undertaking is sufficient, citing Bonds v. Hickman, 29 Cal. 461, and In the matter of the Fifteenth Avenue Extension, 54 Cal. 179. These cases, however, are not in point. They only decide the point that the record in the appellate court cannot be contradicted by affidavits filed in that court as to a matter of fact occurring in the proceedings in the trial court, so as to amend the statements contained in the record, but that such amendment, if made, must be upon application to the trial court. The certified copy of the undertaking presented with the motion does not tend in any way to contradict the record as it stands in this court as to any matter of fact. In order to avoid incumbering the record, the statute (section 1739, supra) provides that the clerk must certify that £an undertaking in due form has been properly filed.5 ’ The copy presented under the certificate of the clerk enables this Court to judge of the correctness of the clerk’s conclusion as to the form of undertaking. If this could not be looked to upon a motion to dismiss, then the certificate of the clerk conforming to the statutory direction would be conclusive upon this Court, and no appeal could be dismissed either for the want of an undertaking or because the one filed is insufficient.

The appeal must be dismissed.

Dismissed.


author: MR. JUSTICE HUNT

text:
    STATE, Respondent, v. SHEPPHARD, Appellant.
    [No. 1,417.]
    [Submitted October 17, 1899.
    Decided November 6, 1899.]

      Criminal Law — Review—Action of Trial Court in Denying a New Trial — Presumption—Appeal for Insufficiency of Eoidence — Record—Noncompliance with Supreme Court Rules — Effect—Trial—Opening Statement of Prosecuting Attorney.

    1. Tbe trial court is presumed to have acted legally in denying motion for a new trial, and to have based on a proper foundation its decision that the evidence was sufficient to sustain the conviction.
    2. An appellant, relying on the insufficiency of the evidence, must show by the record affirmatively all material facts, or the substance thereof, so as to overcome the presumption in favor of the court below.
    3. On an appeal for insufficiency of the evidence to convict, the entire evidence which is material, or its substance, should be before the appellate court in the bill of exceptions.
    4. On an appeal for insufficiency of the evidence to justify the verdict, the appellate court will not examine the evidence to test its sufficiency, unless the fact that the bill of exceptions contains all the evidence, or the substance thereof, be certified to by the trial judge, or the bill itself clearly shows such to be the fact.
    5. The certificate of the stenographer, who transcribed his notes for an appeal, that the transcript contains all the evidence, cannot supply the certificate of the judge to that effect, or an omission of the bill of exceptions itself to show that it does.
    6. A failure to comply with Supreme Court Rule V. regulating the form of appellant’s brief, will warrant a refusal to consider specifications of error.
    7. It is not “misconduct” on the part of the prosecuting attorney to state to the jury in his opening statement that the defendant had made a confession, even though said confession be subsequently held to be inadmissible.

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

    Charles Shepphard was convicted of murder in the second degree, and from the judgment and from an order denying a new trial he appeals.
    Affirmed.

      Messrs. Walsh <& James, for Appellant.

      Mr. C. JB. Nolan, Attorney General, and Mr. J. H. Duffy, for the State.
   MR. JUSTICE HUNT

delivered the opinion of the Court.

The defendant, Charles Shepphard, was convicted of murder in the second degree, for the deliberate killing of John Benson, at Deer Lodge county, on"or about November 6, 1898. He appeals from the judgment and from an order overruling his motion for a new trial.

The principal error pressed upon our consideration is the alleged insufficiency of the evidence to sustain the verdict. This Court cannot say, though, that the evidence did not justify the verdict and order of the court denying a new trial. There is a presumption obtaining that the district court acted in obedience to the rules of law, and that its decision that there was evidence sufficient to sustain the conviction rested upon a proper foundation. An appellant, relying upon the ground of insufficiency of evidence to justify a verdict, is in duty bound to make up his record so that it'will affirmatively show all the material facts, or the substance thereof, upon which he predicates his assignment; that is, the appellant assumes to remove the reasonable intendments or presumptions which favorably accompany the action of the trial court. (People v. Williams, 45 Cal. 25.)

It is well established that, where the error relied on is the insufficiency of the evidence to justify the verdict, the entire evidence, or its substance, which is material, should be before the appellate court, to enable it to say whether or not the order denying a new trial was erroneously made. (People v. Leong Sing, 77 Cal. 117, 19 Pac. 254.) This being so, it is the duty of an appellant to see to it that his bill of exceptions contains, not only all the material evidence, or the substance thereof, but that that fact is properly certified to by the district judge who certifies to the bill, or that the bill of exceptions itself shows that the evidence therein contained and set forth is all the evidence had on the trial material to the illustration of the alleged insufficiency thereof to justify the verdict. Where the judge’s certificate is relied on, we think it sufficient if it uses any language by which it clearly appears that the bill contains all the evidence, or so much thereof as is necessary to demonstrate the point relied on, and that there need be no adherence to any precise words in the certificate of that fact. (People v. Henchler, 137 Ill. 580, 27 N. E. 602; Brock v. State, 85 Ind. 397; Grisell v. Noel Bros,’ Flour-Feed Co., 9 Ind. App. 251, 36 N. E. 452; Jones v. Layman, 123 Ind. 569, 24 N. E. 363.) Where the bill of exceptions itself is relied on to show the insufficiency of the evidence, it should either set forth in express language that all the evidence, or the substance thereof, or so much thereof as is necessary to illustrate the point relied on, is all incorporated in the bill, or it should contain statements equivalent to such expressions, or it should show a whole connected narrative, so constructed that it clearly appears that all the material evidence, or the substance thereof, is incorporated in the bill.

The practice in this state, though not uniform, in pursuing one of the two methods required, is yet quite consistent in observance of the essentials of whichever mode is selected. For instance, on examination of the transcript, we find that at the conclusion of the testimony in the case of Hamilton v. Great Falls Street Railway Co., 17 Mont. 334, 42 Pac. 860, and 43 Pac. 713, appear the words: “The foregoing was all the evidence in the case,” — a form to be commended; so, in the original record in the case of State ex rel. Pigott v. Benton, 13 Mont. 306, 34 Pac. 301, at the close of the testimony and admissions, these words appear: “And this was all the evidence;” and in Bonner v. Minnier et al., 13 Mont. 269, 34 Pac. 30, the transcript discloses that these words were used: “The foregoing was all the testimony and evidence introduced by the parties upon the trial of the cause,” — any one of which forms obviously secures certainty, and enables this Court to determine that all the evidence is in the record. Where the bill of exceptions itself is not certain, an example of a good form of certificate by the judge is found in the case of State v. Sloan, 22 Mont. 293, 56 Pac. 364, where Judge Armstrong certified that “the foregoing bill of exceptions is full, true, and correct, and that it contains all the evidence introduced and .offered * * * oon the trial of said cause. ”

But the record before us is fatally deficient under the requirements and practice of either method. We find the judge’s certificate is as follows: “The above and foregoing bill of exceptions and statement on motion for new trial is this day settled and allowed, in the presence of the respective counsel herein, in open court, this 3d day of April, 1899.” It falls short of showing, by positive or inferential language, that the bill of exceptions contains all the evidence, or the substance thereof, and we cannot presume from this certificate that it does, while the bill of exceptions itself fails to recite that all the evidence had on the trial is included therein; nor does it fairly appear from the expressions of the bill of exceptions that no other evidence was introduced than that contained in the bill. (Hibbard v. Kirby, 38 Ark. 102.) To illustrate, after the recital of the filing of the information and the arraignment and plea, the bill continues: “That thereafter, to-wit, on the 17th day of January, 1899, this cause came on regularly to be heard, * * * and the following testimony was introduced and proceedings had.” Then follows an examination of a juror as to his qualifications, and an exception by the defendant to the ruling of the court excusing the juror. Next comes the recital of a remark made by the county attorney in his opening statement, to which objection was made, which was overruled by the court, and to which ruling defendant excepted. The bill continues: “W. L. Powell, a witness on behalf of the state, after being duly sworn, testified as follows. ’ ’ Then appears the testimony of Dr. Howsley, “a witness on behalf of the state.” Next follows the testimony of several other witnesses, and at the end of one appear the words, “State rests.” The next thing apparent is a motion by defendant that the court direct a verdict of not guilty upon certain grounds. This was overruled, and an exception noted. Defendant’s testimony follows. At the conclusion of the testimony of one of his witnesses, the bill recites, “Defendant rests.” Rebuttal testimony then comes, and we find the words, “Testimony closed.” And this is all that there is in the bill to show that it contains all the evidence, or the substance thereof, had upon the trial, except a certificate of the stenographer of the court certifying that “the above and foregoing transcript, pages 1 to 168, both numbers being inclusive, contains a full, true, and correct copy of my notes, in narrative form, taken at the trial of the above-entitled cause, to the best of my ability. ’ ’ But the certificate of the stenographer cannot be considered by this Court to supply the certificate of the judge or the omissions of the bill of exceptions itself. (Code of Civil Procedure, Sec. 377; People v. Woods, 43 Cal. 176; People v. Armstrong, 44 Cal. 326.) If, after the testimony of the prosecution, there had been a recital that “thereupon” the state rested, and after the last testimony of the defendant incorporated in the bill a recital that “thereupon” the defendant rested, or the formula that “this was all the evidence given in the case’ ’ had appeared, or there were sufficient in respect to the judge’s certificate to make it reasonably certain that the whole of the evidence material to the point assigned, or the whole of the substance thereof, was in the record, we should examine into it to test its sufficiency. (Ironwood Store Co. v. Harrison, 75 Mich. 197, 42 N. W. 808.) But it is not at all clear by this record that there was no other evidence before the jury than that included in the record, and, in the absence of an affirmative showing of a connected narrative or of positive statement that the entire evidence is therein, defendant has failed to avail himself of the point he would rely on.

The appellant assigns a number of other errors in his specification of errors of law occurring at the trial and excepted to by the defendant. But his counsel have entirely ignored Buie Y of the rules of this Court (11 Pac. vii), which íequires that: “The appellant’s brief shall contain, in the order here stated: * * * (b) A specification of errors relied upon, which shall be numbered and shall set out separately and particularly each error intended to be urged, ’ ’ etc.

“(c) A brief of the argument, exhibiting a clear statement of the points of law or fact to be discussed, with a reference co the page of the record, and the authorities relied upon in support of each point. ’ ’

This failure to comply with the rules of the Court warrants us in refusing to discuss the several points pressed by the specifications. (State v. Allen, 23 Mont. 118, 57 Pac. 725.)

In their argument upon the insufficiency of the evidence to justify the verdict, counsel refer to the misconduct “of the prosecuting attorney in pressing his case in the manner shown by the record. ’ ’ This ‘ ‘misconduct’ ’ seems to have consisted in this: The county attorney, in his opening statement, told the jury that defendant had made a confession. Thereafter certain confessions of the defendant were offered in evidence, and admitted, after the court had heard testimony in relation to the circumstances under which the confessions had been made. After the introduction and admission of such confessions, on motion of the defendant the court withdrew them from the consideration of the jury, upon the ground that it appeared that the defendant had made the admissions while laboring under some inducement and fear of the authority of the officials to whom he made them. But, in our opinion, there was no ‘ ‘misconduct on the part of the prosecuting attorney” in stating to the jury that a confession had been made, or in endeavoring to have the confessions admitted in evidence as part of the state’s case; indeed, in our judgment, two of the confessions were admissible, and it was error on the part of the court to have withdrawn them from the consideration of the jury. It is unnecessary to discuss any of the other assignments. They are deemed waived, because not argued.

The judgment and order appealed from are affirmed.

A firmed.