author: ME. JUSTICE HOLLOWAY, Me. Chief Justice BraNtly:

text:
    FINLEN, Appellant, v. HEINZE et al., Respondents.
    (Nos. 1,824, 1,839.)
    (Submitted April 1, 1903.
    Decided July 24, 1903.)

      Mines — Claims — Assignment — Validity — Specific Performance — Consideration — Adequacy — Burden of Proof —Conspiracy —• Champerty — Evidence — Judgment — Modification — New Trial — Misconduct of Judge — Appeal— Assignments of Error — Sufficiency—Presumptions—Harmless Error — Review—Briefs—Costs.
    1. under Code of Civil Procedure, Section 1173, providing that, where the notice of motion for a new trial designates, as a ground, the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which the evidence is alleged to have been insufficient, and, if no specifications are made, the statement is to be disregarded, a specification merely alleging that the evidence is insufficient to justify a certain finding set out is insufficient.
    2. Code of Civil Procedure, Section 4417, provides that specific performance cannot be. enforced against a party to a contract if he has not received an adequate consideration therefor. Held that, while a party seeking specific performance of a contract is required to set forth the consideration therefor, the burden of proof that such consideration is inadequate is on the party resisting specific performance.

      3. Notwithstanding a statute may have been taken from another state, the . supreme court will decline to follow the decisions of such state upon tne subject when they are in direct conflict with its own decisions and are opposed to what appears to it to be the better reasoning.
    4. Where, at the time of the making of an agreement to assign certain mining leases, options, and bonds, is was admitted that the assignor had expended at least $54,000 in developing the mine, without exposing any ore of commercial value, when the assignee agreed, in consideration .of the assignment, to keep up the leases and bonds, continue the development, and, if the property appeared to the assignee to justify its purchase, to pay the assignor $54,000 therefor, without further risk or liability to the assignor, and thereafter the assignee made discoveries of great value in the mine, a finding that the consideration for the contract was not so inadequate as to preclude a decree of specific performance was justified, since the point of time to which the question of adequacy relates is the time of the formation of the contract.
    5. Where, at the time of the making of an agreement to assign certain mining leases, options, and bonds, the assignor had made explorations along the vein, and had concluded that an adjoining mine owner was trespassing on a vein having its apex within the boundaries of the mine leased and assigned, either the assignor or the assignee might have prosecuted such alleged trespass; and hence the fact that the assignment required that the assignor should prosecute such action for the benefit of the assignee, who agreed to pay the expenses of the litigation, did not render the contract void as a conspiracy within Penal Code, Section 320, making it a misde: rneanor for persons to conspire falsely to maintain any suit, etc.
    6. Where an assignor of an interest in a mining claim retained a contingent interest in the property, his agreement, which was a part of the assign- ' meat, to prosecute a suit in his own name against an alleged trespasser for the benefit of the assignee, at the latter’s expense, was not champertous.
    7 Where an action to recover an interest in a mining claim was tried on the issues raised by the counterclaim seeking specific performance of an alleged contract by plaintiff to convey his interest in such claim to defendant, and the answer thereto, a decree of specific performance would not be reversed on the ground that defendant’s answer to plaintiff’s complaint alleged that plaintiff had forfeited all his rights to the mine prior to the date of the agreement sought to be enforced.
    8. Where, in an action tried to the court, the evidence admitted without objection was sufficient to sustain the court’s findings, it will be presumed on appeal that evidence erroneously admitted was not considered by the court in arriving at its conclusion.
    0. Where a question objected to and excluded had been previously answered, the refusal of the court to permit its repetition was not error.
    10. Error in exclusion of pleadings in another action, offered in evidence, cannot be reviewed, where they are not included in the statement on the motion for a new trial.
    11. Where, in an action to recover an interest in a mining claim, a court entered a decree granting specific performance of an alleged agreement to convey plaintiff’s interest to one of the defendants, it had no jurisdiction to subsequently modify such decree by adding a paragraph retaining jurisdiction with reference to the granting Of an injunction restraining the operation of the mine.
    12. Where appellant filed a brief containing 283 pages, much of which was repetition, and consisted of long arguments, extended excerpts from reported cases, and irrelevant matter, the cost of printing such brief would not be allowed on reversal of the judgment. 0
    13. Where an action was tried to the court, and a female employe of one of the successful defendants had communications with the judge, and wrote letters to him, to which he replied, soliciting further conversation with relation to the case while the same was being argued before him, and such letters containing references to benefits to be derived by the judge in case of a decision favorable to the writer’s employer, and the judge, in an affidavit submitted, failed to deny the authorship of the reply, such acts entitled plaintiff to a new trial.
    14. Affidavits, not explained away, casting grave suspicion upon the integrity of a court’s decision, is ground for a new trial, without reference to the merits of the case.

      Appeal from District Court, Silver Bow Countyj B. TF. Harney, Judge.

    ActioN by Miles Finlen against F. Augustus Iieinze and others. From a decree entered in accordance with the prayer of said Heinze’s counterclaim, from an order overruling a motion for a new trial, and from an order modifying the decree, plaintiff appeals.
    Reversed.
    STATEMENT OE THE CASE.
    This action was originally commenced by the plaintiff, Fin-len, against the defendants, Arthur P. Heinze, Montana Ore Purchasing Company, the Johnstown Mining Company and F. Augustus Heinze, to recover possession of the Minnie Healy lode mining claim. The complaint alleges that the plaintiff had certain leases and bonds from John Devlin, Mrs. Devlin and Mrs. Eeilley upon an undivided three-fourths interest in the claim, and from Caroline V. Kelley upon an undivided one-twentieth interest therein; that under the terms of these leases and bonds- he" had the option to purchase such interests at any time prior to February 3, 1900, upon complying with the terms thereof, and paying the purchase price agreed upon; that he had kept all the terms of the leases and bonds l>y him to- be kept or performed; “that on or about the — day of-, 1899, and before the commencement of this action, and Avhile plaintiff was in actual possession of the whole of said Minnie Healy claim, and, by virtue of said lease and agreements above mentioned, entitled to the possession of said Minnie Healy claim, the said defendants above named forcibly, and without plaintiff’s consent, and against his will, and without any right so to do, entered into and upon the said Minnie Healv lode claim and the underground workings thereof, and ousted and ejected plaintiff therefrom, and ever since have, and do now, retain from plaintiff the possession of said claim, and every part thereof.”'
    The complaint contains a second 'cause of action for damages for ores extracted, and prays for an injunction restraining the defendants from further operating the mine.
    To this complaint the defendants Arthur P. Heinze and the Montana Ore Purchasing Company filed an answer, denying that they, or either of them, ever at any time entered into the possession of the Minnie ITealy lode claim, or any portion thereof, or mined or extracted any ore therefrom, or converted the same to their own use. The defendant Johnstown Mining Company interposed an answer denying the material allegations of the complaint, and setting up its claim to an undivided one-eighth interest in the property acquired from the rightful owner, without any notice of the plaintiff’s outstanding claims. The defendant F. Augustus Heinze filed an answer admitting the allegations of the complaint- with reference to the original ownership of the Devlins, Eeilley and Kelley, the execution of the leases and bonds, and their transfer by mesne conveyance to the plaintiff, and denying the other material allegations of the complaint. The answer sets up new matters by way of affirmative defenses, and also an equitable counterclaim (“cross-bill,” so called), in which, after reciting the history of the execution of the leases, and bonds, their transfer to the plaintiff, his possession and working the claim thereunder (in which operations it is alleged he expended a large amount of money without being' able to make discovery of any ore of commercial value), it is alleged the plaintiff represented to defendant Heinze that the claim would not justify his further prosecuting work or expending money on it, and that he was anxious to dispose of his options on the property. It is further alleged that on November 23, 1898, the plaintiff entered into an agreement with the defendant- Heinze whereby he made an optional assignment of all of bis interests in the leases and bonds to1 Heinze, upon consideration tliat Heinze would go into possession of the property, work the same, keep the leases and bonds alive, and, if the property appeared to him (Heinze) to be of sufficient value to justify its purchase under 1he leases and bonds, then he would pay to the plaintiff, Kinlen, $54,000. It is alleged that this assignment was made by a verbal agreement, but that plaintiff agreed to execute formal written assignments as soon as they could be pre- ‘ pared and presented to him; that he (Heinze) was put in possession of the property by the plaintiff, and, relying upon the agreement so made and the representations of the plaintiff, he fully kept and performed all the terms of the leases and bonds to be kept and performed by the lessee, and, with the full knowledge and consent of the plaintiff, expended large sums of money in exploring and developing the property; that he discovered and exposed large bodies of valuable ore, whereby the claim was greatly enhanced in value, and became worth much more than when he took possession of it; that he deemed himself justified in purchasing, and would purchase, the interests of the Devlins, Beilley and Kelley, and is ready and willing to pay to the plaintiff, Kinlen, the agreed sum of $54,000, but that the plaintiff now refuses to make such written assignments, and denies that the defendant has any interest in the leases and bonds, or any of them, and has assumed to purchase from Mrs. Kelley her one-twentieth interest in the property, and has taken a deed therefor. The prayer of the counterclaim is that Kinlen be required to make such assignments; that ho be declared to be a trustee for the benefit of the defendant Heinze of the one-twentieth interest acquired from Mrs. Kelley; and that he be required to make transfer of the same, upon defendant Heinze paying into court the sum of $54,000, and the further sum which the plaintiff had paid to Mrs. Kelley for her interest in the property. To this counterclaim the plaintiff filed an answer, denying all the material allegations thereof, and to this answer the defendant Heinze filed a reply.
    Upon the issues raised by the counterclaim, answer and reply, tbe cause was tried to tlie court, sitting witout a jury, and, upon the conclusion thereof, findings of fact and conclusions of law were made in favor of the defendant Heinze, and in July, 1901, a decree in accordance with the prayer of his counterclaim was entered. On March 18, 1902, the court made certain modifications of the decree. The appeals are from the decree, from the order overruling plaintiff’s motion for a new trial, and from tlie order of the court modifying the decree.

      Mr. 11’. lb. Dixon, Mr. Á. J. Shores, Mr. G. F. Kelley, Messrs. Forbis & Evans, Mr. D. Gay Stivers, and Mr. T. J. Walsh, for Appellant.
    The evidence is too contradictory and uncertain to permit a court of equity to exercise the power of specific performance. In all cases of specific performance, the evidence must be clear, conclusive and satisfactory. (22 Ehc. PI. & Pr. 1075; Baggs v. Bodlcin, 32 W. Va. 566; Gutsinger v. Ballard, 115 Ind. 93; Burcelle v. Miner, 4 Wall. 513; De Sollar v. Hanscome, 158 U. S. 216; O'Connor v. Jackson, 62 Pac. 761-762; Printup v. Mitchell, 17 Ga. 567; Bice v. Bigby, 61 Pae. 290-294; Brown v. Brown, 33 N. J. Eq. 650; Semmes v. Worthington, 38 Md. 318; Yanwert v. Chidester, 31 Mich. 208; Banks v. Weaver, 48 Atl. 515; Pomeroy on Specific Performance of Cont. 510; Civil Code, Secs. 4280, 2035, 4417, 2160, 4419, 3930; Magee v. McManus, 70 Cal. 553 ; Burnett v. Kullok, 76 Cal. 535; 22 Am. & Eng. Ehey. of Law, 1031; Adams’ Equity, 78-79; Note to Seymour v. Delaney, 15 Am. Dee. 270, 299; 2 Pomeroy’s Eq. Juris. 926-927; Morrill v. Everson, 77 Cal. 114; Windsor v. Miner, 124 Cal. 492; Prince v. Lamb, 128 Cal. 120; Stiles v. Cain, 66 Pac. 231; Nicholsonx. Tarpey, 70 Cal. 608; Foster v. Elk Fork Co., 90 Eed. 178-181; Federal Oil Co. v. Western Oil Co., 112 Eed. 373-376; Addison on Contracts, See. 9; Clark on Contracts, 148; Browne on Statute of Frauds; Phillips v. Thompson, 1 Johns. Ch. 131; Parlchurst v. Van Cortlandt, 1 Johns. Ch. 372; Warvelle on Vendors, 705, 693.)

      The contract, if not indefinite, is too1 incomplete1 for enforcement. (Pomeroy on Contracts, Sec. 154; Smith v-. Burnham, Fed. Cas. 13,019.)
    There being no mutuality in the contract it cannot be specifically enforced. (Civil Code, Sec. 4412; Walceham v. Bar-leer, 22 Pac. 431; Schroeder v. Qemmder, 10 Nevada, 3(34; Hall v. Center, 40 Cal. 66; Hawralty v. Warren, 18 N. J. Eq. 134; Johnston v. Trippe, 33 Fed. 530; Lindley on Mines, Sec. 859; Wails v. Keller, 56 Fed. 1; Conrad v. Rust, 11 N. W. 265; Geiger v. Oreen, 13 Morrison’s Min. R. 324; Sturgis v. Galindo, 59 Cal. 28; Stanton v. Singleton, 126 Cal. 657; 1War-ble Co. v. Ripley, 10 Wall. 359; Federal Oil Co. v. Western Oil Co., 112 Fed. 373; Bromley v. Jefferies, 2 Vernon, 415; Jones v. Williams, 37 L. R. A. 682-706.)
    The contract is ag’ainst public policy and void. (Clark on Contracts, 429; Penal Code, Sec. 320; Johnston v. Shrewsbury, 3 De G-. M. & Gr.; Mayger v. Cruse, 5 Mont. 495; Frye on Specific Performance, 456, p. 222; 15 Am. & Eng. Ency. of Law, 2d Eid., 927; Bliss on Codo Pleading, Sec. 351.)
    No part performance of the contract has been shown. The contract relied upon is within the statute of frauds, being by parol, and is not enforceable except a part performance is shown. (Pomeroy on Contracts, Secs. 120, 107, 116, 104, 106; Wright v. Paclcett, 22 Gratt. 370; Ackerman v. Fisher, 5 7 Pa. St. 457; Iron Age Pub. Go. v. W. U. Tel. Co., 83 Ala. 498; 20 Ency. PI. & Pr. 435; 3 Pomeroy’s Equity, Sec. 1409, note, p. 2174; Bennett v. Dyer, 35 Atl. 1004; 2 Pomeroy’s Equity, 803, S07; Burns v. Daggett, 6 N. E. 727; Cooper v. Thomason, 45 Pac. 299 ; 2 Beach’s Equity Juris. 617; Foster v. Maginnis, S9 Cal. 264; Cooper v. Great Falls, 30 ¡3. W. 353; Boulder v. Farnham, 12 Mont. 1; Colson v. Thompson, 2 Wheat. 336-341; 22 Am. & Eing. Ency. of Law, 1006; Mechem on Agency, 718-719; Fowler v. Sutherland, 68 Cal. 414; St. Louis v. Montana-Co., 113 Fed. 900; Browne on Statute of Frauds, 490; Wach, v. Sorber, 30 Am. Dec. 269; Barrett v. Geisinger, 35 N. E. 354-357; Eckert v. Eckert, 3 Penrose & W. 332-360; 2 War-velle on Vendors, 786, 782; Detrich y. Sharar, 5 Pa. St. 521, 523; Pomeroy on Contracts, Sec. 114; Phillips v. Thompson, 1 Johns. Ch. 149; Williams v. Moms, 95 IT. S. 457; Blum v. Robertson, 24 Cal. 128-143; Stoddard v. Bowie, 4 Md. Ch. 482; Ogsbury v. Ogsbury, 115 N. Y. 290; Ducy v. Ford, 8 Mont. 239; Wheeler v. Reynolds, 66 N. Y. 228.)
    The defendant in his answer set up that Finlen had forfeited his rights under the leases and bonds, and undertook to prove the fact by testimony; this defeats the defendants’ right to a specific performance of the contract. (Willison v. Watkins, 3 Peters, 43; Bigelow on Estoppel, 547; Fears v. Merrill, 50 Am. Dec. 229 ; Conrad v. Bindley, 2 Cal. 174 (Ricks v. Lavell, 64 Cal. 20; Pearis v. Covillaud, 6 Cal. 617; Whittier v. Siege, 61 Cal. 239; Thorne v. Hammond, 46 Cal. 530; Brown y. Co-villaud, 6 Cal. 566; Creen v. Covillaud, 10 Cal. 317; Willard v Taylor, 8 Wall. 557; Kennedy v. Hazelton, 128 D. S. 667.) The cross-bill is insufficient. (Code of Civil Procedure, Sec. 1895; 20 Ency. PI. & Pr. 458; 3 Pomeroy’s Equity, 1408; Wenham v. Sivitzer, 59 Fed. 947; Bliss on Code Pleading, 351; Arguello v. Bours, 67 Cal. 450; Dorris v. Sullivan, 90 Cal. 286.)
    There is a variance between contracts as pleaded and as proven. (Iron Age Pub. Co. v. W. U. Tel. Co., 83 Ala. 498; Brown y. Brown (Mich.), 11 N. W. 205; 2 White & Tudor’s Leading Cases in E'quity, Pt. 1, 1027; Allen v. Young, 6 So. 747; Mdgee v. McManus, 70 Cal. 553; Browne on Statute of Frauds, Chapt. 9; Fuller v. Reed, 38 Cal. 99.)
    Plaintiff is entitled to a new trial on the ground of irregularity in the proceedings of the court and of the adverse party, through which plaintiff was prevented from having a fair trial. (Code of Civil Procedure, Sec. 1171; 14 Eincy. PL & Pr. p. 721; Hayne on New Tidal & Appeal, 64, 48; Coswell v. State, 49 Ga. 103; Walker y. Walker, 11 Ga. 203; Walker v. Hunter, 17 Ga. 414; Springer v. State, 34 Ga. 381; Redmond v. Royal Ins. Co., 7 Phil. 167; Keegan v. McCandless, 7 Phil. 248;
      Gottle v. Cottle, 6 Greenl. 140; Bitchie y. Holbrooke, 7 Serg. & R. 458; Perkins y. Knight, 2 N. FL 474; McIntyre y. Hussey, 57 Me. 494; Hojfram y. Callwpe, 55 Me. 565; Turner v. Beardsley, 17 Wend. 349; Spire y. Hitkin, 44 At. Rep. 13; Whipple y. Preece, 56 Pac. 296; Peck v. Pierce, 28 At. Rep. 524; Morse v. M. O. P. Co., 105 Red. 337; Mattox v. H. S-, 146 IT. S. 140; McDaniels v. McDaniels, 40 Yt. 374; Bradbury y. Cony, 62 Me. 227; Knight v. Freeport, 13 Mass. 219; Whitney y. Whitman, 5 Mass. 405; Eerr on Frauds and Mistakes, 292; Kemp v. Bose, 1 Giff. 258 ; Stoke y. Kuan, 11 Wis. 407.)
    Tbe affidavits in support of tbe motion for new trial address to tbe court another question. There was another action pending in tbe United States court, begun sixteen days before this, one, by Finlen against Devlin and others, asking specific performance, into which Heinze had come as an intervener, setting up the same facts in a cross-bill as he asserts in his cross-bill in this action; under these circumstances it-was an abuse of discretion in the court to set this case down for trial. When two courts of coordinate jurisdiction both have before them actions involving the same issues between substantially the same parties, that court in which suit is last begun will stay its hand until a determination in the other court. (Freeman on Judgments, 118®.; Sharon v. Sharon, 84 Cal. 430; Bank v. Stevens, 169 IT. S. 432-439; Powers v. Blue- Grass Ass’n, 86 Fed. 705-708; Zimmerman v. So Belle, 80 Fed. 417-420; Farmers’ L. & T. Co. v. Lake Street, 177 IT. S. 51-61; Merrwnan v. Watson, 38 Pac. 1108.)
    The court erred in amending the decree. (Morrison v. Dap-man, 3 Cal. 271; De Castro v. Bichardson, 25 Cal. 49; Scam-man y. Bonslett (Cal.), 50 Pac. 272; Lees v. Freeman (Utah), 57 Pac. 411; Thompson v. Lynch, 43 Cal. 483; Hobbs v. Dujf, 43 Cal.. 485; Black on Judgments, Sec. 165; Parrott v. Mc-Devitt, 14 Mont. 203; Montana Milling Co. v. Jefferies, 16 Mont. 559.)

      Messrs. McHaibon & (Jotter, Messrs. Toole & Bach, Mr'. J. M. Benny, and Mr. Charles B. Leonard, for Respondents.
    As to tlie affidavits filed by tbe plaintiff as in support of bis motion for a new trial.
    A new trial is only a statutory right; the right to move for it must be given by the statute and confined to the ground in the statute, and each subdivision of the statute is a. separate, and distinct ground and cannot be aided or supported by another ground, or matters pertaining to another ground, mentioned in the statute, but must stand or fall on its own assignment and the matters properly presented in support thereof. (Code of Civil Procedure, Sec. 1171; Bisse v. Gasch (Neb.), 61 N. W. 616; Tovmley v. Adams (Cal.), 50 Pac. 550; State v. Votan', 16 Mont. 808; Froman v. Patterson, 10 Mont. 107, 114; McLeod v. Dickenson•, 11 Mont. 438; State v. Mason, 18 Mont. 362, 364; Sullivan v. City• of Helena, 10 Mont. 134, 139; Arnold v. Sinclair, 12 Mont. 248, 259; Valerius v. Bichard, 57 Minn. 443; Burton v. Todd, 68 Cal. 485; State v. Fry, 10 Mont. 409; People v. Fair, 43 Oal. 137; People v. O’Brien, 88 Oal. 488; People v. Voll, 43 Oal. 167; People v. McCarty, 48 Oal. 557, 559; Brum'agin v. Bradshaw, 39 Oal. 25, 35; Harding v. Vanderwater, 40 Gal. 77, 83; State v. Gawith, 19 Mont. 48, 51; Drexel v. Daniels (Neb.), 68 N. W. 899; Gregg v. Garrett, 13 Mont. 10; State v. Pilgrim, 17 Mont. 311; Lowe y. Lawrence, 7 Neb. 192; Gurner v. Dinsmore, 8 Neb. 384; Scoville v. Chapman, 17 Ind. 470; Horton v. Wilson, 25 Ind. 316; Fitch v. Bunch, 30 Oal. 208; Boston Tunnel Co. v. McKenzie, 67 Cal. 485; Mazkewitz v. Pimentel, 83 Oal. 450; 14 Ency. PI. & Pr. 884, and cases cited in notes; Fx parte Gibson, 31 Oal. 620, 625; Pico v. Cohn (Cal.), 13 L. R, A. 336.)
    The affidavits were incompetent, irrelevant and immaterial, and not such as could or should be considered. (Code of Oivil Procedure, Secs. 3228, 3229, 3124; Wetzstein v. B. & M. Co., 66 Pac. 943, 947; Bartlett v. U. S., 106 Fed. 884; Wagoner v. Wagoner (Md.), 10 Atl. 221; Clear v. Clear, 19 N. J. E’q. 37;
      State x. Carroll, 85 Iowa, 1; State x. Tosney, 26 Minn. 262; Cline x. Cline (Ore.), 16 Pac. 282; Van Voorhisx. Van Voor-his, 94 Micb. 60; Bradshaw y. Degenhart, 15 Mont. 261, 273; People v. McCoy, 71 Cal. 398 ; Bullmer y. People, 95 Ill. 394; 12 Ehcy. PI. & Pr. 623; Berry v. DeWitt, 27 Peel. 723; Davis y. Allen, 11 Pick. 468; Fessenda v. Sayer', 53 Me. 536; Hunter v. Georgia, 43 G-a. 483; Arha/rt y. Stcmdc, 31 N. T. S. 871; y. Ey. (7ov Í7 S. E. 649.)
    The trial court has tbe right to decide the question of irregularity or misconduct on the part of the court or the judge, or on the part of the jury, its decision has the same controlling effect in each instance, and ought to be given, and is entitled, to greater weight- when it passes upon and disposes of a charge of irregularity or misconduct against itself or its judge than when it passes upon a like question with reference to the jury, for the reason that it has a better knowledge of the same — in fact, it must have personal knowledge in the one, where, in the other, it must exercise its judgment upon matters which are only brought to its attention by way of affidavit, and in instances in which, most frequently, a conflict or contradiction exists in the affidavits with reference to the fact. The judge has a right to insert in a bill of exceptions a statement that the matters complained of are not true, and thus dispose of the contention. (People v. Azojf, 105 Cal. 632, 39 Pac. 59, at 61.)
    The irregularity or misconduct on the part of the jury are questions of fact to be determined by the trial court, and its determination thereof is final and not subject to revision on appeal. (People v. Sullivan, 129 Cal. 557, 62 Pac. 101, 103; Hull v. Minneapolis St. By. Co. (Minn.), 67 N. W. 218; Peterson v. Faust (Minn.), 14 N. IV. 64; Tierney v. Minneapolis & St. L. By. Co. (Minn.), 23 N. W. 229; Thompson v. Anderson (la.), 63 N. W. 355; Light v. Chicago, M. & St. P. By. Co. (Ia.), 61 N. W. 380; Morgan v. Boss, 74 Mo. 318 ; Gordon v. Trevarthan, 13 Mont. 387, 389; Hill v. Corcoran, 15 Colo. 270, 25 Pac. 171.)
    The same rule applies generally with reference to affidavits on tlio ground of newly discovered evidence, where there is a conflict in the affidavits. (Nyhart v. Pennington, 20 Mont. ■158, 162; Territory v. Burgess, 9 Mont. 57, at 80; Holland v. TIusion, 20 Mont. 84.)
    The affidavit .of a juror is admissible to disprove misconduct and support his verdict. (People v. Azoff, 105 Cal. 632, 39 •Pae. 59 ; Saltzmanr. Sunset T. & T. Go., 125 Cal. 501, 58 Pac. 169; State v. Anderson, 14 Mont. 541, 545; State v. Jackson, 9 Mont. 508, 522; Kerr v. Lunsford (W. Ya.), 2 L. R. A. 668, 679.)
    Where irregularity is charged on the part of the court and is disputed by counter-affidavits, the order denying a new trial will not be disturbed. (People v. Wynn, 133 Cal. 72, 65 Pac. 126.)
    The party alleging error in refusing to grant a new trial must make the error affirmatively appear — must show an abuse of discretion. (Mason v. Germaine, 1 Mont. 263, 270; Higley v. Gilmer, 3 Mont. 433.)
    The irregularity mentioned by the statute must be such as prevented a fair trial. It therefore rests on the person alleging irregularity to show affirmatively not only the irregularity complained of, but that injury resulted therefrom. (State v. Gay, 18 Mont. 51, 80;' Territory v. Burgess, 9 Mont. 57, 81; State v. Anderson, 14 Mont. 541, 545; Territory v. Hart, 7 Mont. 489, 505; Bradshaiu v. Legenhart, 15 Mont. 267, 272.)
    Where the interference is by strangers and it does not appear that injury has been done, a new trial will be refused. (People v. Boggs, 20 Cal. 432, 436; 12 Ency. PI. & Pr. 610, 619, and notes; People v. Symonds, 22 Cal. 349; Olay v. Montgomery, 102 Ala. 297; Tiernan v. Treiuich, 2 IJtah, 393, 397.)
    The finding of the court is conclusive as to the affidavits and the statements contained therein. (Bank v. Gagnon, 25 Mont. 268.)
    With reference to cases tried before a court, a different rule applies than to cases tried before a jury. (Bank v. Greenhood, 16 Mont. 449.)

      Appellant contends that, irrespective of whether or not any prejudice is shown, the fact that conversations were had would be sufficient to- justify the granting of a new trial. Appellant is mistaken. (Koester v. Ottumwa-, 34 la. 41; People v. Leary, 39 Pac. 24; U. 8. v. Raid, 12 How. 361; Pittsburg By. Go. v. Porter, 32 Ohio St. 328.; Bradshaw v. DegenJiart, 15 Mont. 270.)
    There is no public policy and no principle of right which would justify the setting aside of a correct and just decision for the purpose of administering a lesson, or for the purpose of punishing a party for improper conduct. (Forrester et al. v. Boston & Montana-, etc. Go., 23 Mont. 129; State v. Glancy, 61 Pac. 987.)
    It was certainly proper for the lower court to determine that the affidavits presented by the appellant were false, and it did so, and the same being false, irrelevant and immaterial, were also impertinent, scandalous and contemptuous, and it was within the authority of the court to strike the same from the files. We ask this court to order the same expunged from this record. (Powell v. Game, 5 Paige, Oh. 265; Opdylce v. Marble, 18 Abb. Prac. 376; 19 Ehcy. PL & Pr. 219; People ex rel. Thomas v. Berry et al., 17 Colo. 322, 29 Pac: 904; People v. Green, 9 Colo. 506, 13 Pac. 514; Van Piten v. Butt, 32 Neb. 285, 49 N. W. 365 ; Green v. Elbert, 137 IJ. S. 615 ; Kelley v. Bottcher, 85 Fed. 55, s. c., 82 Fed. 794; Gassidy v. County of Palo Alto (la.), 12 N. W. 231; Diamond Tunnel, etc. Go. v. Faulkner (Colo.), 28 Pac. 472; Ganzer v. Shiffbauer (Neb.), 59 N. W. 98; State v. Kennedy (Neb.), 83 N. W. 87; Brownell.v. Me-. Gormiclc, 7 Mont. 12; Anderson v. Gook, 25 Mont. 340; Sharp v. Hoffman, 79 Gal. 404; Gage v. Gunther, 136 Cal. 340.)
   ME. JUSTICE HOLLOWAY,

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

1. It is contended that the evidence is-insufficient to justify the findings of the court-. An examination of one of the specifications, wherein the evidence is claimed to be insufficient, will suffice for all, for tbej are in substantially the same form. “(1) The evidence is insufficient to justify the finding that on the 21st day of November, 1898, or at any time, the plaintiff orally assigned, conveyed, or set over to the defendant, F. Augustus Heinze,' all or any of the leases or agreements referred to in the complaint and attached thereto' as exhibits, or all of his right, title, interest or claim thereunder to' the Minnie Healy lode mining claim.” This is merely saying that the evidence is insufficient to justify finding No. 1 as made by the court, and is in no sense a compliance with the provisions of Section 1173 of the Code of Civil Procedure, which provides, among other things: “* * When the notice of motion (for a hew trial) designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to> be insufficient. * *' * If no such specifications be made the statement shall be disregarded on the hearing of the motion. * -x-

In construing Section 695 of the California Code of Civil Procedure, identical with our Section 1173 above, and in discussing specifications in effect the same as those found in this record, the supreme court of that state, in Eddelbuttel v. Durrell, 55 Cal. 277, says: “In the case before us there is not even an attempt made to- specify the particulars in which the evidence is alleged to be insufficient to sustain the findings of the court below. Appellants might as well have said, in a general way, that none of the findings of the court were sustained by the evidence. The purpose of the statute is apparent. It was to direct the attention of court and counsel to the particulars relied on by the moving party, to the end that the evidence bearing on the specifications of error might be inserted in the statement and considered by the court.” To the same effect is the decision in Parker v. Reay, 76 Cal. 103, 18 Pac. 124.

In King v. Lincoln, 26 Mont. 157, 66 Pac. 836, the court said: “It is' contended that the evidence is insufficient to justify the verdict. We cannot examine the evidence to determine whether this contention is well founded, for the reason that the statement used in support of the motion for a new trial fails to specify the particulars wherein the evidence is insufficient. The only specification found in the statement is the following: ‘The evidence is insufficient to support the verdict of the jury in finding for the plaintiff in the sum of ninety-five and 70-100 dollars, with interest. Said verdict is contrary to the evidence.’ «• aiL attempt to point out any p articular in which the evidence failed, or the absence of any material fact to> warrant the jury in finding as they did, as is contemplted by the statute (Code of Civil Procedure, Sec. 1173), it is inexcusably insufficient (Zickler v. Deegan, 16 Mont. 198, 40 Pac. 410; Hayne, New Trial & App. Sec. 150), and the trial court was justified in ignoring it. It amounts to no more than a repetition of the ground for a new trial required to be stated in the notice of intention.” See, also, First National Barde v. Roberts, 9 Mont. 323, 23 Pac. 718. We must assume, then, that the district court properly disregarded the statement in considering this ground of the motion for a new trial, and we decline to review the matter here.

2. It is next contended that the counterclaim is insufficient in that it does not allege that Pinlen received an adequate consideration, and it is earnestly urged that an allegation that the consideration which passed was adequate is absolutely necessary. It is further contended that in any event the consideration alleged is in fact inadequate, and for that reason the contract ought not to be enforced. We are of the opinion that, if the counterclaim stopped short with an allegation that the consideration passing from Heinze to Finlen was adequate, it would be wholly insufficient as pleading a conclusion of law.

In Mayger v. Cruse, 5 Mont. 485, 6 Pac. 333, it is said: “The court, in such a case as this, when called upon to exercise the high power of compelling the execution of a contract in specie, should be informed of the entire nature and character of the contract, so as to determine for itself whether or not it is one which good conscience should enforce, free from objection, and fair, just and reasonable, and equal in all its parts. The statement that ‘the services were a fair and reasonable compensation for tbe interest so to be acquired’ is the statement of a conclusion of law. The facta showing the character of the consideration should be before the court in this case before it should be called upon to say that such a contract is fair, just and reasonable in all its parts.”

Notwithstanding our Code is similar to that of California, and may have been taken from that state, we decline to follow California decisions upon this subject when they are in direct conflict with the decisions of our own court and are opposed to what appears to us to be the bettér reasoning.

Section 4417 of the Civil Code provides: “Sec. 4417. Specific performance cannot be enforced against a party to a contract, in any of the following cases: (1) If he has not received an adequate consideration for the contract. (2) If it is not, as to him, just and reasonable. (3) If his assent was obtained by the misrepresentation, concealment, circumvention or unfair practices of any party to whom performance would become due under the contract, or by any promise of such party, which has not been substantially fulfilled; or (4) if his assent was given under the influence of mistake, misapprehension or surprise, except that where the contract provides for compensation in case of mistake, a mistake within the scope of such provision may be compensated for, and the contract specifically enforced in other respects, if proper to be so enforced.” The evident meaning of this section is that any one of these subdivisions furnishes a defense to an action for specific performance; in other words, when specific performance is sought against a party he may interpose- any one of the defenses named above; and if he can maintain it, he defeats the action. The burden of proof as to such defense is upon him who asserts it, and, while it is necessary for defendant Heinze to set forth the consideration for the contract sought to be enforced, the burden is then upon the plaintiff to show that such consideration is inadequte, if he would avail himself of that defense. Such was the rule at com-moil law, and, in the absence of a statute fixing the burden of proof, the common-law rule prevaials. (Section 5152, Political Code.)

However, laying aside the question of the burden of proof as to the adequacy of consideration, we are to- consider the allegations of the counterclaim in the light of the surrounding circumstances.

In Morrill v. Everson, 77 Cal. 114, 19 Pac. 190, it is said: “We do not doubt that the point of time to which the question of adequacy must relate is the time of the formation of the contract.” This is clearly the correct rule, and it is then quite immaterial what value the option to purchase the Minnie Healy claim had at any time subsequent to November 21, 1898, the date of the agreement as found by the court. The increased value of the property,- occasioned by the discovery of valuable ore bodies or from any other cause, cannot be considered in determining the question of the adequacy of the consideration which passed from Heinze to Finlen for his (Finlen’s) interest in the property. In his reply to the defendant’s answer, plaintiff, Finlen, says: “Admits that at the time the defendant (Heinze) took possession of said claim there was no ore of commercial value exposed therein.” Hpon cross-examination the plaintiff testified: “I had spent in the neighborhood of $70,-000 on the Minnie Healy prior to November 21, 1898.” In his answer to Heinze’s counterclaim, the plaintiff admits “that he stated that he was desirous of transferring and assigning said leases and- agreements.” Hpon his cross-examination he further stated that he had made a deposition in this same case prior to the date of the trial, in which he was asked this question : “ ‘Q. Isn’t it a fact, Mr. Finlen, that there was no ore extracted from the Minnie Healy mine during the year 1898 by you? A. I don’t remember; I don’t suppose there were. But if there were, it was a small complement.’ I expect I made that statement. That is the fact as I remembered it at that time. * * * I expect that is correct; is what I say about it now. The facts were fresher at that time, in 1900, than at the present time.” The witness Mahoney testified that he went to work on the claim for Heinze about December 23, 1898. With reference to the condition in which he found the mine, he says: “At the time I went there the tracks were all taken up and everything had the appearance of the mine being abandoned. * * * I had to put in a track on every level, clean up all the debris and places there where it was filled clear to the roof. * * * I had been acquainted with the Minnie Healy mine for a long time prior to the time I took charge there on the 23d of December, and, from my knowledge of it, it had not been a paying mine. There never was ore taken out sufficient to pay for the mining of it, or anywhere near it; there was scarcely any taken out at all. * * There had been considerable development work done in the meantime. I was aware that there were quite a number of parties worked it, and threw it up; as it wouldn’t pay. The Butte & Boston spent considerable money on it, and some other parties.”

These were the conditions known to the parties at the time of their negotiations, and constitute the circumstances surrounding them, and which entered into their agreement. Notwithstanding the claim was situated contiguous to paying properties, the plaintiff had expended a large amount of money, was unable to expose any commercial ore, had removed the tracks, for some time had done no mining in the property, and was anxious to dispose of his option on it. As found by the court' the defendant Heinze agreed to. go into possession of the property, work the same, keep the leases and bonds in full force and effect, and, if the property appeared to him to justify its purchase, he was to pay Finlen $54,000. This was one of the hazardous risks in mining operations. Finlen was already out at least $54,000, and this afforded him an opportunity to recover it without further outlay or risk, and in the meantime to have the leases and bonds kept alive at the expense of another party. On Heinze’s part, he assumed the risk of losing whatever means he employed in exploring the property, or of making discoveries which Finlen had not been able to make, and securing to himself tbe option to purchase a property wbicb might be fabulously rich, or in tbe end a losing venture. In view of all these surrounding circumstances, we cannot say that tbe consideration pleaded in tbe counterclaim as passing from Heinze to Piulen was inadequate, or tbe agreement set forth, on its face, unjust or unreasonable.

3. It is next contended that, if tbe contract as found by tbe court was actually made between the plaintiff and tbe defendant Heinze, it is against-public policy and void, and specific performance thereof will not be enforced. This is predicated upon the finding of tbe court that a part of tbe consideration for tbe agreement of November 21, 1898, was that Piulen should prosecute an action against tbe Boston & Montana Company in bis own name, and secure an injunction against that company from further mining upon a vein wbicb it was claimed bad its apex in tbe Minnie Healy claim, and on its dip departed so far from tbe perpendicular that it passed without tbe side lines of that claim and into tbe property operated by tbe Boston & Montana Company; that Heinze should pay all tbe expenses of such litigation, and should have whatever proceeds were realized therefrom.

Section 2240 of tbe Civil Code reads as follows-: “That is not lawful wbicb is: (1) Contrary to an express provision of law. (2) Contrary to tbe policy of express law, though not expressly prohibited; or (3) Otherwise contrary to good morals.” Apparently the theory upon wbicb tbe appellant proceeds is that Piulen and Heinze entered into a conspiracy against tbe Boston & Montana Company, or that Heinze was guilty of champerty or maintenance. Section 320 of the Penal Code makes it a misdemeanor for two or more persons to conspire falsely to maintain any suit, action or proceeding; and if this agreement of November 21, 1898, comes within tbe meaning of that section, then it is contrary to- an express provision of tbe law, and will not be enforced. As was said in Mayger v. Cruse, sufra: “Tbe contract should not admit of doubt or suspicion ; for example, as to its' mutuality, as to- its being one not opposed to public policy, or one illegal in its nature.” “Maintenance” is defined to' be an officious intermeddling in a suit that in no way belongs to one, by maintaining or assisting either party, with money or otherwise, to prosecute or defend it. (6 Cyc. 851.) “Champerty,” which is a species of maintenance, has been defined to be the unlawful maintaining of a suit, in consideration of some bargain to have a part of the thing in dispute or some profit out of it, the champertor agreeing to carry on the suit at his own expense. (6 Cyc. 850.) Where, hov-•ever, the person promoting the suit of another has any interest-in the subject-matter, whether it be legal or equitable, great or small, vested or contingent, certain or uncertain, it affords him just reason for participating in the suit, and does not subject him to the charge of officious intermeddling with matters in which he has no interest, or bring his agreement respecting the same within the definition of champerty or maintenance.

The evidence tended to show that prior to November 21, 1898, Finlen had made some explorations in the Minnie Heady claim to ascertain whether or not the mining operations- carried on by the Boston & Montana Company through the Leonard shaft were upon a vein having its apex within the Minnie ITealy claim, and that Finlen himself had talked about bringing a suit in his own name against that company for the alleged trespass. This condition prevailed when the agreement of November 21, 1898, was entered into. Finlen transferred to- Heinze an option to purchase under the option which he (Finlen) had on the property, and thereby Heinze acquired, and Finlen still retained, a contingent interest in the property, the subject-matter of the controversy. Finlen apparently had some reason for believing that the Boston & Montana Company was extracting ores from veins belonging to the Minnie Healy claim, and Heinze, from his examination of the property, thought the suit might be maintained successfully. So far as anything to the contrary appears in the record, either Finlen or Heinze might have prosecuted the suit in perfect good faith, and therefore the essential element of a “conspiracy,” as defined by Section 320 above, was absent, while the interest of each in the property, the subject-matter in controversy, was such as to take the agreement out of the definition of champerty or maintenance; ([Knight v. Sawin, 6 Me. 361; Lord v. Dale, 12 Mass. 115, 7 Am. Dec. 38.) It is apparent, however, that there is a material variance between the contract pleaded and the one proved. No mention is made in the counterclaim of any agreement by Fln-len to commence this action, while the court finds that that was a part of the consideration for the contract sued upon.

4. Tlic appellant contends that defendant Ileinze cannot have specific performance of the alleged agreements, for the reason that in his answer to the plaintiffs complaint he (Heinze) alleges that prior to November 21, 1898, the plaintiff had forfeited all rights which he had under the agreements or any of them. But the cause now before us was tried upon the issues raised by the counterclaim and the answer thereto. That defense was interposed to the complaint, which was for the recovery of the possession of the Minnie Healy claim, and was an action at law; while the matter before us is a suit in equity, in effect instituted by the filing of the counterclaim, and the only pleadings before- us are the counterclaim, the answer thereto, and the reply. The question is therefore not properly before us. We are not to be understood by this as saying that such apparently inconsistent defenses cannot be pleaded. Upon this we express no opinion.

5. Numerous errors are assigned upon the action of the court in admitting certain testimony which it is now claimed was irrelevant- and immaterial. But the cause was tried to the court sitting without a jury, and the presumption must be indulged that such evidence, if improperly admitted, was not considered in arriving at a conclusion. The evidence against the admission of which no objection was made appears to be sufficient to sustain the findings of the court.

In Montana Ore Purchasing Co. v. Butte & Boston Consol. Mining Co., 25 Mont. 427, 65 Pac. 420, this court said: “The court admitted, over the objection of the plaintiff, evidence tending to show tbe cbaracter of tbe buildings wbicb tbe defendants were engaged in erecting, and tbe amount intended to be expended thereon. Counsel for appellant contend that this evidence was irrelevant and immaterial, and that tbe action of tbe trial court in admitting it was prejudicial. We are not prepared to say that tbe evidence was not properly admitted, but, conceding that plaintiff’s position is correct, we think’ tbe error without prejudice. Presumably tbe trial court based its findings upon such of tbe eeidence before it as was competent, excluding from consideration such as bad no weight or relevancy. Tbe other evidence in tbe record, tbe competency of wbicb is unquestioned, was sufficient to justify tbe findings, and tbe order will not therefore be reversed.”

6. Upon cross-examination of tbe witness MeHatton for tbe defendant Heinze, be was asked whether or not be bad dictated a particular paragraph of tbe complaint in tbe suit of Finlen v. Boston & Montana Company. An objection to tbe question was sustained. An examination of tbe record show's that, just before this question was asked'the witness, be bad testified that be did dictate tbe pleadings on behalf of tbe plaintiff in that cause. So that tbe question, even if proper, bad been answered, and we cannot say that the court committed error in refusing to permit a repetition.

As a part of this cross-examination it was also sought to introduce tbe pleadings in that case, but an objection to their admissibility was sustained. However, tbe plaintiff has not included tbe pleadings thus offered in tbe statement on motion for a new trial, and we are unable to say whether or not any error was committed in tbe court’s ruling. (Haupt v. Simington, 27 Mont. 480, 71 Pac. 672; Tague v. John Caplice Co., 28 Mont. 51, 72 Pac. 297.)

We have examined tbe other errors specified upon tbe orders made by tbe court in excluding certain evidence, but find no merit in them.

Y. Tbe decree in this suit was entered- in July, 1901. .On March 18, 1902, tbe court modified the decree by adding to one paragraph, the following’: “Jurisdiction with reference to the injunction and all matters pertaining thereto' being retained by the court on the motion and application of the plaintiff herein.” Appellant complains that the amendment was made without any showing whatever, over the objection of the plaintiff, and not on his motion, and that it was unauthorized. Upon the application made to this court for an injunction pending the appeal herein (Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829), this court had occasion to consider somewhat that amendment, and with reference to it said: “In our opinion, the particular, amendment in question was wholly unauthorized, no matter at whose instance it was made, or what evidence there was tending to show that the matter contained in the amendment was in fact a part of the decree as rendered in the first instance. When that court rendered its final judgment, at the conclusion of the case, settling the rights of the parties, its jurisdiction over the subject-matter and the parties ceased, except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had looking to a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal.” We adopt that language as expressing our views upon the matter at this time.

8. The appellant has filed herein a so-called “brief,” consisting of 283 pages, and the respondent, not to be outdone, has filed one of 422 pages. These consist of long arguments, extended excerpts from reported cases, and matters which have no proper place in a brief. Much of them is repetition, and, instead of materially aiding the court in a determination of this cause, they have imposed a prodigious amount of needless labor, and have been of little, if any, practical assistance. Such an imposition upon the court ought to be rebuked by striking the so-called “briefs” from the files, and ordering briefs which in substance and extent come within the meaning of that term to be filed instead.. In this instance the prevailing party will not be permitted to recover, as part of bis costs, tbe expense of printing bis so-called “briefs.”

9. It is next contended that tbe district court erred in refusing tbe plaintiff a new trial. Tbe notice of intention to move for a new trial, wbicb furnishes tbe basis for all subsequent efforts to bave tbe decision set aside, specifies tbe following, among other grounds: “(1) Irregularity in tbe proceedings of tbe court, and irregularity in tbe proceedings of tbe adverse parties, whereby tbe plaintiff was prevented from having a fair trial.”

Tbe record contains a number of affidavits filed on behalf of the plaintiff in support of bis motion. These contain recitals wbicb, if trae, demonstrate that tbe district judge who tried this cause was completely lost to all sense of decency and propriety, apd that be mjade of tbe occasion, while off tbe bench, a carnival of drunkenness and debauchery, in company with a female employe of tbe Montana Ore Purchasing Company, one of tbe defendants to the action. It is charged in these affidavits that, during tbe time this, cause was on trial and undetermined, numerous written messages passed between Mrs. Brackett, tbe employe referred to, and Judge Harney; that on May 9, 1901, tbe so-called “dearie” letter was written by Mrs. Brackett and delivered to Judge Harney. A copy of tbe letter is attached to and made a part of tbe affidavits. This letter, profuse in tbe expressions of tbe writer’s affection for Judge Harney — a married man living with bis family — would hardly be considered a proper court record, but for its direct allusion to this suit then being tried, and for tbe significance of tbe answer thereto, wbicb, it is charged, was written by Judge Harney, addressed to Mrs. Brackett, and, at tbe judge’s request, delivered to her. Tbe opening statement of that letter is as follows:

“My Dear Mrs. Brackett:
“I bave received your letter and will be glad to talle further with you on tbe subject therein mentioned. On account of pain in my ankle I did not sleep'last night. I bave been listening to arguments concerning tire Minnie H. and they will probably consume all of tomorrow. I will see you tomorrow evening if you are at leisure. I bave some matters that I must attend to this evening. I appreciate your solicitude and your feelings, which are reciprocated,- as you know, and I bég you not to- be uneasy.”

When it is considered that the so-called “dearie” letter contains an offer of financial assistance to Judge Harney, reminds him who his friends were before he was “Judge” Harney, contains the statement that as to his future after he leaves the bench she is empowered to promise him certain things which will assure that most generously, and then refers to a statement which she says Judge Harney made to her respecting the evidence in this case, the full import of the answer is apparent. There is absolutely nothing in that so-called “dearie” letter which could with any show of propriety be the proper subject of discussion between the judge trying a cause and an employe of one of the parties to the action, and yet the answer thereto is an open invitation to Mrs. Brackett to discuss further the subject-matter of her letter. Judge Harney did give countenance to the charges made against him to the extent of denying one or two of the specific matters alleged, but his affidavit is most remarkable for what it does not say. The affidavits filed on-behalf of the plaintiff set forth, with great particularity of time and place, numerous instances of the judge’s association and revelry with.Mrs. Brackett in Butte and elsewhere during the time the cause was being tried and determined, and it does seem most remarkable that, having made an affidavit, Judge Harney should have signally failed to deny the specific charges made against him, and notably failed to deny that he wrote the answer to the so-called “dearie” letter. It may be that no wrong was done, in this instance, but, if so, the record before this court for review is in a most unfortunate condition.

The cause was tried to the court sitting without a jury, the judge performing the dual office of court and jury, and having the determination of all questions involved, both of law and fact. If the cause had been tried to a jury, and a record was presented here containing like charges of irregularity by or on behalf of one of the parties in attempting to influence a single juror, it is hardly conceivable that this court would hesitate for a moment to set aside the verdict, if in favor of the offending party. TJpon this subject the courts have been of one opinion.

In Huckell v. McGoy, 38 Kan. 53, 15 Pac. 870, where the attorney for one of the parties, in his closing remarks to the jury made use of improper language, the verdict in favor of his client was set aside.

In Vollrath v. Crowe, 9 Wash. 374, 37 Pac. 474, the plaintiff and one of the jurors were playing cards and drinking together in a saloon, and out walking together, and talking— though not about the case — during the time of its trial, and a verdict for the plaintiff was set aside, and with respect to the matter the court said: “Trials of causes should have the appearance of fairness, and it would tend greatly to bring judicial proceedings into disreputé if matters of this kind should be overlooked or tolerated. We fully agree with the contention of appellants that a verdict rendered by a jury, a portion of whom are found to have been promenading the street, conversing, playing at cards and drinking with the successful litigant, has the appearance of anything but fairness; and let it once be understood that such things are permissible, and we will be treated to the spectacle of litigants vying with each other, in both private and public places, in attempts to win the good will and favor of the jury, and the administration of the law greatly scandalized thereby.”

In Wright v. Eastlick, 125 Cal. 517, 58 Pac. 87, one of the jurors attended a dance with a party to the action. The two drank together, and appeared intimate. A verdict for the offending party was set aside, the court saying: “In the early 60’s a district judge in this state, whose district embraced mining counties, was impeached on the ground, among others, that during the trial of a cause he left the bench and visited a saloon, and there drank 'and caroused witb witnesses and tbe parties, or one of tbe parties-.”

Nothing herein said shall be construed as intimating an opinion by this court that any of the defendants had actual knowledge of what Mrs. Brackett was doing; but her principal was a corporation, which acts only through individuals, and the rule is uniform that irregularities on the part of an agent, employe, relative or interested friend, will be imputed to the principal.

In Thompson on Trials, Sec. 2560, it is said: “The rule is applied with almost equal stringency whether such attempts proceed from the prevailing party himself, from his friends, or from officious third persons.”

In Bradbury v. Cony, 62 Me. 223, 16 Am. Rep. 449, it was charged that the son of the defendant had taken some of the jurors and showed them the property in controversy. A verdict for the defendant was set aside therefor.

In Palmer v. Utah Northern Ry. Co., 2 Idaho, 291, 13 Pac. 425, the father of one of the plaintiffs, and the grandfather of another, during the time the cause was being tried, visited and patronized a saloon owned by one of the jurors, and, though in his affidavit he said that he had been patronizing the same saloon for the past six years, a verdict for the plaintiffs wás set aside therefor. The court said: “We are unable to say what effect this liberal and conspicuous patronage during the trial may have had upon the mind of the juror whose bar he was patronizing. It is not necessary for us to find that it had effect upon the verdict, in order to sustain this assignment of error as to irregularities of an adverse party. It is enough to find that it was calculated so to do-. It is perhaps impossible for the juror himself to appreciate what influence this patronage may have had upon his mind.”

In Burke v. McDonald, 2 Idaho, 1022, 29 Pac. 98, the superintendent of the defendant furnished some refreshments to and drank with the jurors, and a verdict for his principal was set aside therefor.

In McDaniels v. McDaniels, 40 Vt. 364, a friend of the prevailing party had talked with a juror about the case, and the verdict was set aside.

In Nesmith v. Insurance Co., 8 Abb. Prac. 141, a third party attacked the credibility of a witness for the defendant in the presence of jurors, and a verdict for the plaintiff ;was set aside.

In Knight v. Freeport, 13 Mass. 218, a son-in-law of one of the parties talked to a juror, und told him that the case was one of great consequence to him, and the verdict was set aside.

Whatever may be said as to the authorship of the so-called “dearie”’ letter, the fact still remains that Judge Harney had the opportunity to deny in no, uncertain terms his authorship of' the answer thereto, and failed to do so; and so long as the record stands here containing so many specific charges which are undenied, and notably the authorship of that answer, we decline to accept, as conclusive upon this court, the statement of the district judge that he determined the cause upon the law and the evidence, uninfluenced by any other consideration whatever.

In Peck v. Pierce, 63 Conn. 310, 28 Atl. 524, the judge trying the cause read certain entries of account which had not been offered in evidence, but which bore directly upon the point in controversy, and, notwithstanding he made the statement that he did not consider them in arriving at his decision, and that they did not influence him at all, the court set aside the decision, and said: “Now, there can be m> sort of doubt that the trial judge intended to, and did, so far as it is possible for any one to do such a thing, dismiss these entries from his mind, and did not consider them in arriving at his decision, and that he was fully persuaded that he had succeeded in the attempt. This court, however, has, in cases like this, with a good degree of uniformity, refused to accept such, statements as conclusive, on the ground that /the operations of the human mind are so subtle, and the influences which affect it so difficult to be appreciated, that it is utterly improbable, not to say impossible,’ for the party making them to know whether the evidence influenced bim or not; bolding tbat all tbat sucb statements can mean is tbat tbe maker of tbem was unconscious of tbe influence.”

Judge Harney’s affidavit is, in effect, tbat in all proceedings pertaining to tbe case be was entirely uninfluenced by any one, tbat be determined tbe cause upon tbe law and tbe evidence, tbat be bad no knowedge tbat any one was attempting to influence bim in bis action, and tbat during tbe time be was considering tbe case be was not disabled or incapacitated by tbe use of intoxicating liquors.

If Judge Harney did not write tbe answer tbat so-called “dearie” letter, be could bave said so in few words and in positive terms; if be did write it, tbat fact alone would come too near demonstrating tbat Mrs. Brackett bad exerted an undue influence over bim with respect to tbe cause, or at least cast too grave a suspicion upon tbe integrity of tbe proceedings b> permit tbe result to stand.

A corrupt attempt to influence a verdict of a jury or decision of a court is always a ground for a new trial, without reference to tbe merits of tbe case, and whether successful or not. Tbe law is so sensitive upon this subject tbat affidavits, not explained away, casting suspicion of sucb misconduct on tbe prevailing party, will avoid tbe judgment. (Thompson on Trials, Sec. 2560; Huston v. Vail, 51 Ind. 299.)

Litigants bave a right to expect tbat no discussion of tbe cause will be bad out of court with tbe judge or jury trying tbe same.

While tbe application of tbe rule here laid down may result in great injustice in isolated cases, tbe wbolesomeness of tbe doctrine cannot be questioned. Tbe judgment in this case will be set aside, not as a punishment for tbe defendants, but tbat no unlawful interference with tbe dignified and orderly course of judicial proceedings may be given countenance in the jurisprudence of this state.

No judgment of a court of justice so tainted with corruption as tbe record leaves this should stand, and its cancellation in this instance will be tbe evidence of tbe determination of this court to pursue to tbe utmost its constitutional and lawful authority, to tbe end that public confidence in our judicial system may not be lessened, and that tbe fountain of justice may be kept pure.

Tbe judgment and orders appealed from, are reversed, and the .cause is remanded with directions to tbe district court to grant a new trial.

Reversed and remanded.

Me. Chief Justice BraNtly:

A new trial is ordered in this case on tbe ground of irregularity on tbe part of defendants by which tbe plaintiff was prevented from having a fair-trial. While I do not doubt that tbe views expressed by my brethren in tbe last paragraph of tbe foregoing opinion are just, and that the conclusion reached will go far toward maintaining public confidence in the administration of justice in this state, I nevertheless have grave doubts whether the facts bring the case within the purview of the statute. (Code of Civil Procedure, Sec. 1171.) Judges sustain a different relation to litigants from that occupied by jurors, and are to be judged by a different standard. This has always been the rule under those systems which recognize the distinctions between courts of law and equity; and while, under our system, this distinction has been abolished, and suits in equity are no longer tried de novo by the appellate court upon the evidence submitted to the trial court, under which method of procedure the elements of bias,prejudice and corruption in the trial judge are eliminated, it is a matter of great doubt whether the statute was intended to cover such a case as is presented by the record before us.

I shall not dissent, however, nor attempt a discussion of the principles involved. I content myself with this expression of doubt on this point.

I concur in the views expressed in the last paragraph of the opinion as to the conduct of the trial judge pending the hearing of this cause. I also concur in the conclusions reached in the other paragraphs of the opinion.


source: Caselaw Access Project

author: ME. COMMISSIONER CLAYBEEG-

license: Public Domain

text:
    EMERSON, Appellant, v. McNAIR et al., Respondents.
    (No. 1603.)
    (Submitted June 16, 1903.
    Decided July 24, 1903.)

      Appeal — Appellate Jurisdiction — Statutory Regulations — Appeal from Order Setting Aside a Default Judgment— Record — Certification of Papers.

    1. Tlie constitution grants appellate jurisdiction to tlie supreme court, to be exercised under “sucli regulations and limitations as may be prescribed by lawsubstantial compliance witli the provisions oí the statutes governing-appeals is necessary to give, the supreme court the right to exercise such jurisdiction.
    2. under Code of Civil Procedure, Section 1737, which provides that on appeal from an order, except an order granting or refusing a new trial, “the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below,” on appeal from an order setting aside a default judgment, the judgment roll as such is not properly a part of the record.
    3 . Code .of Civil Procedure, Section 1737, provides that on appeal from an order, except an order granting or refusing a new trial, the appellant must furnish a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing. Section 1739 declares that “the copies provided In the iast three sections must be certified as correct by the clerk or attorneys.” Held that, on appeal from an order setting- aside a default judgment, the only method by which the papers used by the court below on the hearing can be certified to the supreme court as the papers used on the hearing is by incorporating the same in the bill of exceptions.
    4. where the bill of exceptions recited that the records and files of the action were offered and used on the hearing, but neither the complaint, summons, motion for cost bond, nor the proposed answer was incorporated' therein, these papers were not properly before the court.

      Appeal from District Court, Cascade• County; J. B, Leslie, Judge.

    Action by Natherine Emerson against B. P. McNair and others. Erom an order setting aside defendants’ default, plaintiff appeals.
    Appeal dismissed.

      Mr. George PL. Stanton, for Appellant.
    ' Messrs. Downing & Stephenson, and Mr. Ransom Cooper, for Respondents.
   ME. COMMISSIONER CLAYBEEG-

prepared the opinion for the court.

This is an appeal from an order setting aside a judgment taken against the defendants by default.

After a hearing of the appeal it appeared to the court, from an examination of the record, that certain important points involved in the case had not been noticed by counsel, either in their briefs or argument. The court thereupon stibmitted eight questions for reargmnent, among which v7as the following : “Are all of the records' and papers necessary to the hearing of this appeal in the record, and, if so, are they brought up in the proper manner?” All the questions which were thus submitted were argued by counsel with zeal and ability, but, under our view of the case, none of such questions can be considered by this court, except the one above quoted.

The Constitution grants appellate jurisdiction to the supreme court, to be exercised under “such regulations and limitations as may he prescribed by law.” (Constitution, Art. VIII, Sees. 2, 3 and 15.) In pursuance of this grant, and as furnishing methods for the exercise of the jurisdiction granted, the legislature has enacted statutes providing how appeals may be taken, determining of wliat the record on such appeal shall consist, and how such records shall be certified to this court. Substantial compliance with these provisions is necessary to give this-court the right to exercise the jurisdiction granted. (Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.)

Therefore a brief reference to some of these statutory provisions, as to the contents of the record on appeal, and how it must be certified to this court, is important.

Section 1736, Code of Civil Procedure, provides that, on an appeal from a final judgment, “the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies.”

Section 1738 provides that, on an appeal from an order granting or refusing a new trial, “the appellant must furnish the court with a copy of tbe notice of appeal, of tbe order appealed from, and of tbe papers designated in Section 1176' of tbis Code.”

Section 117 6 provides: “Tbe judgment roll, and tbe affidavits, or bill of exceptions or statement, as tbe case may be, used on tbe bearing, with a copy of tbe order made, shall constitute tbe record to be used on appeal from tbe order granting or refusing a new trial.”

Section 1737 provides that, on appeal from an order except an order granting or refusing a new trial, “the appellant must fumisb tbe court with a copy of tbe notice of appeal, of tbe judgment or order appealed from, and of papers used on tbe hearing in tbe court below.”

Tbis court has held that, upon an appeal which requires tbe judgment roll to be a part of tbe record, such judgment roll must be certified up as an entity, and that it is not sufficient that all or any part thereof be copied in a bill of exceptions or statement on motion for a new trial, although such bill of exceptions or statement is contained in tbe record on appeal. (Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.)

■ Tbe case at bar is an appeal from an order other than one granting or refusing a new trial. Tbe statute does not require tbe judgment roll as such to be made a part of tbe record on such appeal, and therefore it is not properly a part thereof. Tbe statute provides that tbe record upon such an appeal shall consist of “a copy of tbe notice of appeal, tbe judgment or order appealed from, and of tbe papers used on tbe bearing in tbe court below.”

Section 1739 provides that “tbe copies provided for in tbe last three sections must be certified to be correct by tbe clerk or tbe attorneys.”

Tbe statute does not seem to provide any specific method for certifying to tbis court tbe fact as to what papers were “used on tbe bearing in the.court below.” Tbis court has, however, said, “Tbe district court clerk bad no' authority, under Section 1739, to certify what evidence, documentary or oral, tbe court bad before it on tbe bearing of tbe motion” (State ex rel. Pierson v. Millis, 19 Mont. 414, 48 Pac. 773) ; and in tbe case of Rumney Land & Gattle Co. v. Detroit & Montana Cattle Co., 19 Mont. 557, 49 Pac. 395, tbis court uses tbe following language : “Under tbe Code of Civil Procedure of 1895, on appeal from an order, tbe only proper mode of bringing up for consideration tbe evidence relied on, whether oral or written, used or before tbe court on tbe bearing of tbe motion for tbe order, is by a bill of exceptions; and unless such evidence has been included in, and made a part of, tbe record, by bill of exceptions taken in pursuance of, and prescribed in, said Code, it is not, and cannot be, considered as properly identified on appeal.”

In State ex rel. Pierson v. Millis, supra, Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co., supra, and Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106, it was stated by tbe court, by Way of argument merely, that tbe papers used by tbe court below might be identified by tbe certificate of counsel. Tbis court, however, considered the correctness of these statements in tbe case of Cornish v. Floyd-Jones, 26 Mont. 154, 66 Pac. 838, and used tbe following language: “We take occasion now to say that we doubt whether that section (1739, Code Civ. Proc.) is susceptible of tbe construction assumed in these cases to be proper. We think tbe authority given by it extends no further than to permit counsel by their certificate to obviate tbe necessity of a certificate by tbe clerk as to tbe correctness of tbe copies contained in tbe transcript. As was held in tbe first two cases cited, tbe clerk may not certify tbe papers as those used, or tbe only ones used, on tbe bearing. Neither, in our opinion, may tbe attorneys do so. We shall therefore not feel bound by these cases when tbe point properly arises.” Tbe point arises directly in this case, and we apply tbe doctrine here announced.

We are therefore of tbe opinion that, on appeal from an order like tbe one at bar, tbe only method by which tbe papers used by tbe court below on tbe bearing may be certified to tbis court as tbe pajiers used on the hearing is hy incorporating the same in a bill of exceptions.

The bill of exceptions in this case recites that the records and files in the action were offered and used on the hearing, but neither the complaint, summons, motion for cost bond, nor the proposed answer is incorporated therein. These papers are therefore not properly before* the court. Compliance by appellant with “such regulations and limitations as may be prescribed by law” being necessary to give this court jurisdiction, of an appeal, without substantial compliance therewith jurisdiction does not attach. As well said by Judge Knowles, in the case of Rader v. Nottingham, Mont. 151: “Holding, as wa do, that we have no jurisdiction to determine the issue presented in this appeal, any judgment or order that we might render thereon would be void. Not desiring to cumber our records with a void judgment or order to vex the court below with, we must dismiss this appeal on our own motion.” This language is quoted with approval in the case of State ex rel. Pierson v. Millis, supra.

In our opinion, inasmuch as the papers used upon the hearing in the court below are not properly certified to this court, the appeal must be dismissed, under the piovision of Section 1140 of the Code of Civil Procedure.

Per Curiam. — Eor the reasons stated in the foregoing opinion, the appeal is hereby dismissed.

It is the opinion of this court that it is important that the practice in perfecting appeals to this court be permanently settled in accordance with the provisions .of the statute1.


author: Per CuriaM.

text:
    No.-1,527.
    WETZSTEIN, Appellant, v. BOSTON & MONTANA CONSOL. C. & S. MINING CO., Respondent.

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

    On motion to dismiss appeal.
    Decided April 15, 1903.

      Messrs. Mel Fallon A Cotter, for Appellant.

      Messrs. Forhis A Frans, for Respondent.
   Per CuriaM.

Upon motion of the appellant herein this appeal is dismissed at the cost of appellant.


author: Per Curiam.

text:
    No. 1,936.
    FARRIS, Appellant, v. WESTERN UNION TELEGRAPH CO., Respondent.

      Appeal from District Court, Silver Bow County.

    On motion to dismiss appeal.
    Decided April 22, 1903.

      Messrs. McIIaiton & Cotter, and Mr. George F. Shelton, for Appellant.

      Mr. T. Bailey Lee, and Mr. J. K. Macdonald, for Ilespond-ent.
   Per Curiam.

The motion to- dismiss this appeal is sustained and the appeal is accordingly dismissed.


text:
    No. 1,567.
    OAKES et al., Respondents, v. KEMPTON, Appellant.

      Appeal from District Court, Custer County; II. C. Smith, Juclge.

    Decided May 1, 1903.

      Mr. O. IF. Farr, and Messrs. McConnell £ McConnell, for •Ippellant.

      Mr. William Wallace, Jr., for Pespondents.
   Per Curiam.

In this cause the judgment of the court below is hereby modified by dissolving the injunction provided for therein, and as so modified the judgment is affirmed, in accordance with the stipulation on file.


text:
    No. 1,573.
    STATE ex rel. ST. PETERS, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, and JOHN LINDSAY, Judge Thereof, Respondents.

      Original — (Jeriiorari.
    Decided May 2, 1903.

      Mr. J. N. Kirie, for Relator.
   Per Curiam.

Upon tbe motion of counsel for relator this cause is hereby dismissed.


text:
    No. 1,579.
    CONLEY, Respondent, v. DUNN, Appellant.

      Appeal from District Court, Carbon Countyj FranJc Henry, Judge.

    May 11, 1903.
    Mr. Justice Holloway dissents.

      Mr. George ~W. Pierson, and Mr. George H. Bailey, for Appellant.
   Per Curiam.

It appearing to the court that the respondent herein lias failed to file his brief within the time required by the rules of this court, and it further appearing that the appellant does not consent to the appearance of said respondent, and the court not requesting the same (Rule X, Subdivisions 4 and 5), the said respondent is not permitted to be heard at this time.


author: Pee, ('urtaM.

text:
    No. 1,581.
    EVKOVICH, Respondent, v. BARNES, Appellant.

      Appeal from District Court, Granite Countyj Welling Nap-ton, Judge.

    On motion to dismiss appeal.
    Decided Mar 16, 1903.
    June 6, 1903.

      Mr. IT. E. Moore, for Appellant.

      Messrs. Durfee £ Brown, and Mr. George A. Maywood, for Respondent.
   Pee, ('urtaM.

Upon motion of coiinsel for tlie respondent this appeal is dismissed without prejudice to a motion to reinstate.

Pee CuetaM. — The motion to reinstate the appeal herein, heretofore submitted to and by the the court taken under advisement, is denied.


author: Per. Curiam.

text:
    No. 1,763.
    MILLIGAN, Appellant, v. FREDERICKS et al., Respondents.

      Appeal from District Court, Broadwater County; E. K. Cheaclle, Judge.

    Decided June 2, 1903.

      Mr. George F. Cowan, for Appellant.

      Mr. E. B. Hoffman, for Respondents.
   Per. Curiam.

The appeal herein is dismissed as settled, in accordance with the stipulation on file.


text:
    No. 1,958.
    STATE ex rel. MELVILLE, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    Origin al— Certiorai i.

    Decided June 13, 1903.
    Rehearing denied June 17, 1903.

      Mr. Charles O’Donnell, for Relator.
   Per Curiam.

Relator’s application for a writ of review herein is denied.


text:
    No. 1,626.
    STATE PUBLISHING CO., Appellant, v. NEIL, Respondent.

      Appeal from District Court, Lewis and Clarice County; II. C. Smith, Judge.

    On motion to dismiss appeal.
    Decided June 18, 1903.

      Mr. II. J. Burleigh, and Mr. C. B. Nolan, for Appellant.

      Messrs. Carpenter & Carpenter, for Respondent.
   Per Curiam.

Upon motion of counsel for the appellant herein, this'appeal is dismissed; each party to pay his or its own costs.


author: Pee Curiam.

text:
    No. 1,608.
    In re KELLY’S ESTATE.

      Appeal from District Court, Silver Bow Countyj John Lindsay, Judge.

    Decided June 18, 1903.

      Mr. L. P. Forrestell, for Appellant.
   Pee Curiam.

This cause having been set for hearing this day, and no briefs having been filed, it- is ordered that the appeal herein be and the same is hereby dismissed.


text:
    No. 1,630.
    STATE ex rel. BOSTON & MONTANA CONSOL. C. & S. MINING CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT and WILLIAM CLANCY, Judge Thereof, Respondents.

      Original — C ertiorari.

    Decided June 19, 1903.

      Messrs. Forbis & Fvans, for Relator.

      Mr. J. M. Denny, and Messrs. Cullen, Day & Cullen, for Respondents.
   Per Curiam.

Upon motion of counsel for the relator this application for a writ of review is dismissed without costs, in accordance with the stipulation on file.


text:
    No. 1,920.
    RUMNEY et al., Respondents, v. DONOVAN, Appellant.

      Appeal from District Court, Leivis and Clarice County; J. M. Clements, Judge.

    On motion to dismiss appeal.
    Decided June 19, 1903.

      Mr. F. W. Mettler, for Appellant.

      Messrs. Glayberg & Gunn, and Mr. A. J. Galen, for Respondents. ,
   Per Curiam.

Upon motion of counsel for the appellant this appeal is hereby dismissed as settled.


author: Pee Cueiam.

text:
    No. 1,937.
    In re LOGAN.

      Appeal from District Court, Flathead County; D. F. Smith, Judge.

    On motion to dismiss appeal.
    Decided June 19, 1903.

      Mr. James Donovan, for Appellant.
   Pee Cueiam.

Upon motion of counsel for the appellant herein, this appeal is dismissed as settled.


author: Mr. Chief Justice. Brxíntdy: Mr. Justice Mixrurn:

text:
    No. 1,962.
    Nos. 1,964 and 1,965.
    STATE ex rel. ANACONDA COPPER MINING CO. et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, and WILLIAM CLANCY, Judge Thereof, Respondents. STATE ex rel. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, and WILLIAM CLANCY, Judge Thereof, Respondents.
    Original — Writs of supervisory control.
    On motion to dismiss.
    Decided June 29, 1903.
   Per Curxam. — Tbe motions to dismiss the applications herein are sustained, and the proceedings are accordingly dismissed.

Mr. Chief Justice. Brxíntdy:

In causes numbered 1,962, 1,964 and 1,965, being applications to this court for writs of supervisory control to prohibit the court of the Second judicial district, with Judge Clancy presiding, from proceeding with the hearing of three certain causes set for trial in that court, in which the Boston & Montana Company, the Anaconda, Copper Mining Company and the Washoe Company are parties, the causes involved having been submitted to the court under motions to dismiss on the ground, that this court has no jurisdiction, after as careful an examination as we have been able to give to the legal questions involved during the brief time we have had at our disposal, the court has reached the conclusion that it cannot interfere.

I wish to say, speaking for myself, that my view of this-matter is this: The people of the- state organized their government; the scheme of that government is contained in the Constitution of the state and statutes enacted in pursuance thereof. It is not the province of the court to mend or remedy the imperfections, if any exist. There are certain trusts which have been reposed finally in the honesty and integrity of certain individuals who hold official positions under the government. Among these are disputed questions of fact and other matters of that kind, lodged in the discretion of the district judges. The legislature has deemed it wise to be silent upon the subject of bias and prejudice in district courts, thereby leaving it to the honesty and integrity of the individual judge to perform his duty under his oath in that regard. If that is an imperfection, then this court has no power to remedy it. The Constitution impliedly leaves to the legislature the power .to determine what shall be disqualifications of judges, when change of venue shall be had, and matters of that kind. It is silent on the subject of how there shall be a change of judges under certain circumstances, and this court has no power to legislate by declaring what should he embodied in the organic law or in the statutes and act upon that legislation.

I do not assent to the proposition that a man, even the humblest citizen in this state, has not the legal right to a fair and impartial trial. Every citizen has that right, but no remedy is provided for cases in which that right is not accorded by district courts, except by impeachment of the judge who refuses it, or by discipline at the polls, or through the medium of disbarment proceedings.

Mr. Justice Mixrurn:

I join in the order denying the rela-tors’ petitions, for the reason that I am not convinced that under the facts alleged in the petitions the writ of supervisory control is the right remedy, if there be any, and not being satisfied, I therefore join in the order. I do- not wish to be understood, however, as saying that in the state of Montana the law is as claimed by the respondents, that is — that a judge can lawfully sit on the bench in a criminal case and try John Doe or Nichard Noe for murder of the judge’s wife, or for highway robbery committed fipon him, the judge, — that is the position taken by the respondents in this case. I do not believe that such is the law. I am not convinced by the relators that writs of supervisory control should be issued in the cases now before us. I believe they have a remedy; I believe there is a remedy under the Code; in this my brethren do not agree with me.

Rehearing denied July 9, 1903.

Mr. W. 1-7. Dixon, Mr. A. J. Shores, Mr. O. F. Kelley, Mr. D. Gay Stivers, and-Messrs. Forbis & Evans, for Relators.

Messrs. McIIatton & Ootter, for Respondents.


author: Per C-uriam.-

text:
    No. 1,686.
    STATE ex rel. BROGAN, Relatrix, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, and E. W. HARNEY, Judge Thereof, Respondents.

      Original — Mandamus.
    Decided July 3, 1903.

      Mr. L. P. Forrestell, for Relatrix.

      Messrs. McIIatton & Goiter, for Respondents.
   Per C-uriam.-

This cause is dismissed in accordance with the stipulation on file.


text:
    No. 1,931.
    COTTER, Respondent, v. BUTTE & RUBY VALLEY SMELTING CO., Appellant.

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

    On motion to dismiss appeal.
    Decided July 13, 1903.
    Rehearing granted November 20, 1903.

      Mr. James B. Murray, and Mr. Robert McBride, for Appellant.

      Messrs. McUatton & Cotter, for Respondent.
   Per Curiam.

-The motion to dismiss this appeal is sustained and the appeal is accordingly dismissed.


text:
    No. 1,642.
    BALLARD et al., Respondents, v. PATTEN et al.; Appellants.

      Appeal from, District Court, Granite County; Welling Nap-ton, Judge.

    On motion to dismiss appeal.
    Decided July 14, 1903.

      Messrs. McConnell & McConnell, and Mr. W. JE. Moore, for Appellants.

      Mr. D. M. Durfee, for Respondents.
   Per Curiam.

THe motion to dismiss tbe appeal herein is sustained and the appeal is accordingly dismissed.


text:
    No. 1,633.
    WOODWARD et al., Respondents, v. COURTNEY et al., Appellants.

      Appeal from District Gourt; Gallatm County; F. K. Armstrong, Judge.

    On motion to dismiss appeal.
    Decided July 14, 1903.
    Rehearing denied October 9, 1903.

      Messrs. Sanders & Sanders, for Appellants.

      Messrs. Hartman & Hartman, for Respondents.
   Per Curiam.

Tbe motion to dismiss tbe appeal herein is sustained, and tbe appeal is accordingly dismissed.

(Mr. Justice Holloway, being disqualified, takes no part in this order.)


text:
    No. 1,634.
    RIDDELL, Respondent, v. PECK-WILLIAMSON HEATING AND VENTILATING CO., Appellant.

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

    Decided July 14, 1903.

      Messrs. Pemberton & Maury, for Appellant.

      Messrs. McHatton & Goiter, for Respondent.
   Per Curiam.

This appeal is dismissed at the cost of appellant, in accordance with the stipulation on file.


author: 'Per Curiam.

text:
    No. 1,881.
    WILSON, Receiver, Respondent, v. HERSHFIELD et al., Defendants; MART HERSHFIELD, Appellant.

      Appeal from District Court, Lewis and Clarice County; Henry C. Smith, Judge.

    Decided July 21, 1903.

      Messrs. Sanders & Sanders, for. Appellant.
   'Per Curiam.

This appeal is dismissed, and remittitur ordered to issue forthwith in accordance with the precipe of counsel for appellant of date of July 20, 1903, at 2:30 p. m.


author: JUSTICE ERDMANN

text:
    YELLOWSTONE WATER SERVICE, and EMPIRE FIRE AND MARINE INSURANCE COMPANY, Plaintiffs and Respondents, v. DAVID GEORGE DOTTING, and RONALD SANNES, d/b/a/ UNITED GLASS, Defendants and Appellants.
    No. 96-224.
    Submitted on Briefs September 26, 1996.
    Decided November 26, 1996.
    53 St.Rep. 1271.
    280 Mont. 1.
    928 P.2d 233.

      See C.J.S. Motor Vehicles § 518(20).
    For Appellants: James A. Patten; West, Patten, Bekkedahl & Green; Billings.
    For Respondents: Tiffany B. Lonnevik; Brown, Gerbase, Cebull, Fulton, Harman & Ross; Billings.
   JUSTICE ERDMANN

delivered the Opinion of the Court.

Appellants David Dotting and Ronald Sannes appeal from the findings of fact, conclusions of law, and judgment entered by the Thirteenth Judicial District Court, Yellowstone County. The District Court concluded that Dotting’s negligent operation of his vehicle actually and proximately caused the accident which occurred on January 26, 1993, and that Sannes, as his employer, is liable for all damages caused by Dotting. We affirm.

The issue on appeal is whether the District Court erred in determining that Dotting failed to yield the right-of-way and that Dotting’s negligence actually and proximately caused the accident.

FACTS

On January 26, 1993, on Montana Highway 201, a semi-truck transporting waste water driven by Kevin Dean Valnes and owned by Yellowstone Water Service (YWS) was headed in a westerly direction. At the same time, Dotting was driving a semi-truck owned by his employer, Sannes, headed south on a dirt road that ultimately intersects with Highway 201. The weather conditions were clear and the main road surface was dry.

Highway 201 is hilly, and one hill crests 700 feet east of the intersection with the dirt road, thus limiting the visibility from the intersection of west-bound traffic. Portions of Highway 201 east of the intersection, however, are visible from time to time from various points along the dirt road, including the intersection. It is only the final quarter mile of the dirt road, and only as to traffic between the two hills nearest the intersection, that west-bound traffic is not clearly visible. A vehicle traveling south on the dirt road and arriving at the intersection does not have an opportunity to observe westbound traffic on Highway 201, which is cresting one of the hills, unless it waits at the intersection for a sufficient period of time to allow possible traffic that cannot be seen between the two hills to clear. Both drivers were familiar with this intersection and the hazards posed by the limited visibility.

Dotting stopped his truck at the intersection. The parties disagree whether he stopped his truck for a short period or for two to three minutes, as Dotting testified in his deposition. Dotting then slowly proceeded into the intersection. Valnes testified that this occurred after he crested the hill, but Dotting testified that he saw no traffic when he entered into the intersection. In any event, Dotting pulled out onto Highway 201 and his trailer had not completed its turn before the truck driven by Valnes approached the intersection at approximately 55 m.p.h. Valnes was forced to take evasive action by applying his brakes but was unable to bring his tractor/trailer to a stop in the less than 700 feet distance between him and Dotting. Dotting’s vehicle crossed the center line while making its turn and thus made it impossible for Valnes to pass Dotting on the left. Valnes therefore drove his truck into the ditch to avoid a collision. The investigating police officer issued a citation to Dotting for failure to yield.

Valnes’ overturned tractor/trailer suffered damage in the amount of $14,706.15. Empire Fire andMarine, the insurer ofYWS, paid YWS the sum of $12,706.15 for the damages. YWS paid the $2,000 not covered by insurance and subrogated its claims to Empire. YWS and Empire filed a complaint for property damages against Sannes and Dotting. The District Court determined that Dotting failed to operate his vehicle in a careful and prudent manner, thereby breaching his duty owed to YWS, and that his actions actually and proximately caused the accident on January 26,1993. The District Court rendered judgment on behalf of YWS and Empire against Sannes and Dotting who appeal this determination.

ISSUE

Did the District Court err in determining that Dotting failed to yield the right-of-way and that Dotting’s negligence actually and proximately caused the accident?

We review a district court’s findings of fact to determine whether they are clearly erroneous. Daines v. Knight (1995), 269 Mont. 320, 324, 888 P.2d 904, 906. This Court has adopted a three-part test to determine whether the findings are clearly erroneous. Interstate Prod. Credit Ass’n v. DeSaye (1991), 250 Mont. 320, 322, 820 P.2d 1285, 1287. The test provides that: (1) the Court will determine whether the findings are supported by substantial evidence; (2) if the findings are supported by substantial evidence the Court will determine if the trial court has misapprehended the evidence; (3) if the findings are supported by substantial evidence and that evidence has not been misapprehended, this Court may still find that a finding is clearly erroneous when, although there is evidence to support it, a review of the record leaves the Court with the definite and firm conviction that a mistake has been committed. DeSaye, 820 P.2d at 1287.

The standard of review for a district court’s conclusions of law is whether the court’s interpretation of the law is correct. Carbon County v. Union Reserve Coal Co. (1995), 271 Mont. 459,469,898 P.2d 680, 686; Steer, Inc. v. Dep’t of Revenue (1990), 245 Mont. 470,474-75, 803 P.2d 601, 603-04.

YWS premises its argument that the District Court did not err in concluding that Dotting was negligent for failure to yield the right-of-way on the basis that the District Court found that Dotting saw or should have seen Valnes and therefore found him to be more at fault than YWS who had the right-of-way. YWS asserts that this finding is supported by substantial evidence in the record and is not clearly erroneous. The court, however, did not make an unequivocal finding that the tractor/trailer driven by Valnes was visible to Dotting and that Dotting did see or should have seen the oncoming vehicle. The court stated that, “Dotting, who had stopped his truck/tractor semitrailer at a stop sign ... pulled out in front of Valnes ... as plaintiff [Valnes] crested a hill 700’ from the intersection.” Although there is substantial evidence in the record for the court to make a finding that Valnes’ vehicle was visible at the time Dotting entered the intersection, the court did not unambiguously state this as one of its findings.

Furthermore, the court did not premise its conclusion that Dotting was negligent upon a finding that the YWS tractor/trailer was visible to Dotting when he entered the intersection. Rather, the court, in part, based its conclusion that Dotting was negligent on its finding that despite the fact that a “blind spot” did exist, Dotting could nonetheless have seen Valnes had he waited at the stop sign for a sufficient amount of time such that any unseen traffic would become visible. In addition, the court found that Dotting was instructed to wait for a sufficient amount of time to allow for unseen traffic and that it was his usual practice to do so, but on this occasion he did not wait long enough.

Although there is conflicting testimony regarding the length of time Dotting waited at the stop sign, there is substantial evidence to support the court’s finding that Dotting could have yielded to oncoming traffic if he waited for the traffic obscured by the hill to become visible. Sannes himself testified that a person could see west-bound vehicles from the intersection before they began their ascent of the hill which crests 700 feet before the intersection. Other witnesses’ testimony and photographic exhibits also support this finding. We therefore determine that the District Court’s finding that Dotting could have waited for any unseen traffic in the portion of the road not observable from the intersection to clear is based upon substantial evidence which was not misapprehended by the court. This finding is therefore not clearly erroneous.

Utilizing a standard negligence analysis the District Court concluded that Dotting failed to operate his vehicle in a careful and prudent manner when he failed to yield the right-of-way, contrary to §§ 61-8-341 and -344, MCA, and therefore breached the duty he owed to YWS. Dotting argues that the District Court erred in its conclusion that he was negligent because there was no negligence per se since he did not violate a traffic control statute, and further, that he acted as a reasonably prudent person when he entered onto the highway. He argues that he did not fail to yield, as required under § 61-8-341, MCA, but rather, that he waited at the stop sign and seeing no traffic he entered the intersection.

Section 61-8-341, MCA, provides:

(1) The driver of a vehicle shall stop as required by 61-8-344 at the entrance to a through highway and shall yield the right-of-way to other vehicles which have entered the intersection from said through highway or which are approaching so closely on said through highway as to constitute an immediate hazard, but said driver having so yielded may proceed and the drivers of all other vehicles approaching the intersection on said through highway shall yield the right-of-way to the vehicle so proceeding into or across the through highway.
(2) The driver of a vehicle shall likewise stop in obedience to a stop sign as required herein at an intersection where a stop sign is erected at one or more entrances thereto although not a part of a through highway and shall proceed cautiously, yielding to vehicles not so obliged to stop which are within the intersection or approaching so closely as to constitute an immediate hazard, but may then proceed.

The District Court, in its findings, determined that Dotting could have waited for oncoming traffic to become visible before proceeding into the intersection. The court concluded that Dotting’s failure to wait was not careful and prudent, but was negligent and in violation of §§ 61-8-341 and -344, MCA.

It is clear from the court’s findings that Dotting could have yielded to the vehicle driven by Valnes, which was approaching in such a manner as to constitute an immediate hazard under § 61-8-341, MCA. The extremely low speed at which Dotting entered the intersection, due to the nature of his tractor/trailer and the load he was transporting, would make traffic normally ascending a hill only 700 feet away from the intersection an immediate hazard and would require the driver at the intersection to yield the right-of-way by determining if all oncoming traffic had cleared.

We therefore hold that the court correctly interpreted §§ 61-8-341 and -344, MCA, to apply to Dotting’s actions entering the highway from the limited visibility intersection. Furthermore, the court correctly concluded that Dotting actually and proximately caused the accident which resulted in property damage in the amount of $14,706.15.

We therefore affirm the District Court.

CHIEF JUSTICE TURNAGE, JUSTICES GRAY, NELSON and LEAPHART concur.