author: JUSTICE McDONOUGH JUSTICE HARRISON, JUSTICE TRIEWEILER

text:
    RICHARD J. LINGSCHEIT, Plaintiff and Appellant, v. CASCADE COUNTY, a body politic, Richard J. Michelotti and Montana Department of Revenue, Defendants and Respondents.
    No. 90-491.
    Submitted June 18, 1991.
    Decided Sept. 9, 1991.
    249 Mont. 526.
    817 P.2d 682.

      Robert P. Goff argued, Church, Harris, Johnson & Williams, Great Falls, for plaintiff and appellant.
    Geralyn Driscoll argued, Dept, of Revenue, Helena, for defendants and respondents.
   JUSTICE McDONOUGH

delivered the Opinion of the Court.

The plaintiff taxpayer, Richard J. Lingscheit appeals the order of the Eighth Judicial District Court, Cascade County, granting summary judgment to the defendants, Cascade County and the Montana Department of Revenue and denying taxpayer’s request for a refund of allegedly overpaid property taxes. Taxpayer requested a refund pursuant to § 15-16-601, MCA. The sole issue on appeal is whether the District Court erred in granting summary judgment to the defendants. We affirm.

The taxpayer is the former owner of the Holiday Inn motel in Great Falls, Montana. The property was appraised by the Department of Revenue (DOR) at $2,496,924 during the taxpayer’s ownership. In 1986 and 1987, the Cascade County Commissioners levied taxes on the property based on that appraised value. Taxpayer paid the taxes based on that appraisal for those years without protest.

Taxpayer sold the real property on November 24, 1987. The new owner protested the appraised value for the 1988 taxable year and sought relief from the Cascade County Tax Appeal Board. A hearing took place on July 28, 1988.

At that hearing, the DOR’s appraiser testified that he had not followed the guidelines set forth under The Marshall-Swift Valuation Service Manual. The appraiser stated that the DOR’s administrative regulation, A.R.M. 42.19.101(2) requires use of the manual. The manual requires an appraiser to use his independent judgment when appraising property. The appraiser also testified that he did not appraise the property by that method; rather, he utilized the DOR’s policy statement 83-1, which includes appraisal guidelines for franchises and provides a cost ranking of Holiday Inns.

In its order, the County Tax Appeal Board did not address whether an incorrect appraisal method was used, but merely stated that “[t]he Board feels this property should be given an additional 20% reduction for Functional Obsolescence.”

On September 29, 1988, following the issue of that order, the taxpayer plaintiff petitioned for a tax refund for the years 1986 and 1987. The County Commissioners took no action on the petition. On February 16, 1989, the taxpayer filed an action against the county and its treasurer. The DOR intervened as a party defendant.

On July 10, 1989, the DOR moved for summary judgment. The motion was briefed and argued on May 16,1990 and on May 23,1990 the District Court issued its order granting summary judgment in favor of the defendants. Taxpayer now appeals.

The statute at the center of the issue here is § 15-16-601, MCA, which provides in pertinent part:

“Any taxes, interest, penalties, or costs paid more than once or erroneously or illegally collected ... may, by order of the board of county commissioners, be refunded by the county treasurer.”

Section 15-16-601, MCA. Taxpayer asserts that the relief afforded by the statute is available to him. In his complaint he alleges that due to the inconsistency between the policy incorporated by the DOR in The Marshall-Swift Valuation Service Manual and the DOR’s internal policy statement 83-1, the taxes levied on his former property were either illegally or erroneously collected.

The taxpayer relies primarily on Christofferson v. Chouteau County (1937), 105 Mont. 577, 74 P.2d 427; and Department of Revenue v. Jarrett (1985), 216 Mont. 189, 700 P.2d 985, in support of his position. In Christofferson, the County erroneously required the plaintiff to purchase a tax sale certificate when purchasing a parcel of state land. Several months prior, the Commissioner of State Lands had directed the county treasurer to cancel any assessments as well as unpaid taxes against the land. The plaintiff requested a refund upon discovering that the land was state land, the certificate of purchase had been cancelled, and he could not have a tax deed. This Court reversed the denial of the refund, holding that the predecessor to § 15-16-601, MCA, was enacted to avoid the harsh voluntary payment common law rule in the case of illegal and erroneous tax collections. The former rule provided that taxes voluntarily paid could not be recovered. Christofferson, 74 P.2d at 431-32.

In Jarrett, the DOR mistakenly appraised the taxpayer’s lot at $14,510.00 for 1978 through 1981 under the erroneous belief that the lot was included in a special improvement district which provided sewer facilities. The lot was not located within the district. DOR discovered the error in 1982 and reappraised the lot at $7,418.00. Taxpayer had paid the taxes for 1978 through 1981 without protest. After the lower appraisal, the taxpayer filed a claim for a refund of the overpaid taxes with the County Commissioners pursuant to § 15-16-601, MCA. The commissioners denied his claim and he appealed to the County Tax Appeal Board. The County Tax Appeal Board awarded the refund as did the State Tax Appeal Board. DOR sought judicial review, and the district court affirmed the refund on summary judgment. This Court affirmed the district court. In Jarrett, we noted that § 15-16-601, MCA, was only available to a taxpayer who has no recourse under § 15-1-402, MCA, which provides for payment of taxes under protest and an action to recover. Jarrett, 700 P.2d at 988, see also Montana Bank of Roundup, N. A. v. Musselshell County Board of Commissioners (Mont. 1991), [248 Mont. 199,] 810 P.2d 1192, 1195, 48 St.Rep. 392, 394. In this case, the taxpayer argues that at the time in 1986 and 1987 when he would have had to commence the remedy process under § 15-1-402, MCA, by filing an administrative appeal with the Cascade County Tax Appeal Board, he did not know of the existence of the alleged illegal or erroneous valuation. The property no longer belonged to him in 1988.

In this case, we first note that the use of the word “may” in the statute does not mandate that the county commissioners order a refund in all cases of an erroneously or illegally collected tax. The statute is permissive rather than mandatory. See § 15-16-601, MCA. Thus, once a legal determination is made that taxes were erroneously or illegally collected, it is still within the discretion of the Board of County Commissioners to decide if the situation warrants a refund to the taxpayer. Hence, we review the denial of the refund under the abuse of discretion standard.

We conclude that the Board did not abuse its discretion in denying the refund. While the case is similar to Jarrett and Christofferson, both Jarrett and Christofferson involved mistakes in appraisals that were clerical in nature. In both cases the assessments at issue should never have been made. In this case, the taxpayer does not allege that the assessment should never have been made; rather, he alleges an error in the methodology used by the appraiser and the DOR. At the hearing on taxpayer’s successor’s refund, the DOR’s appraiser gave the following testimony:

“Q. So you didn’t use your own independent judgment in arriving at that cost ranking, is that correct?
“A. No, I did not.
“Q. And you have no alternative but to assign a 3 ranking to the property?
“A. It was my feeling that I was obligated to use their grade level, yes.”

The appraiser admitted that he used the DOR’s cost ranking policy rather than exercising his own independent judgment in appraising the property. However, his testimony does indicate that he did use his independent judgment in deciding that he was obligated to follow the DOR’s cost ranking. Thus, the alleged error here is not clerical, it involves the exercise of the appraiser’s judgment in determining what method he should use. Furthermore, in its order reducing the taxes of the taxpayer’s successor in interest, the board did not find that an incorrect appraisal method was used, but merely stated that “the Board feels this property should be given an additional 20% reduction for Functional Obsolescence.” Thus, unlike Jarrett and Christofferson, it is not certain that the taxes levied against the property during this taxpayer’s ownership were in fact excessive.

The case of North Butte Mining Co. v. Silver Bow County (1946), 118 Mont. 618, 169 P.2d 339, supports our decision in this case. There, the taxpayer sought refunds of net proceeds paid to the County in 1942 and 1943. The value of the net proceeds reported in 1942 and 1943 had included a “government bonus or subsidy” which in 1945 this Court held was not part of the net proceeds of a mine. The County denied the refunds and this Court upheld the refusal stating that “[a] mistake in the valuation of property resulting in an excessive tax is no ground of recovery under a statute such as section 2222 [the predecessor of § 15-16-601, MCA].” North Butte Mining Co., 169 P.2d at 341. This Court further stated:

“It is our view that neither the levy, assessment nor the collection of the tax was wrongful or illegal. To constitute a wrongful or illegal levy, assessment or collection there must have been unwarranted or illegal action on the part of the taxing officials. There is none such here. The only assessment and levy that could have been made under the facts contained in the statement furnished by the plaintiff was the assessment and levy which was made and the only proper tax to be collected from the statement furnished was that which was collected.”

North Butte Mining Co., 169 P.2d at 340. Here the taxpayer’s allegations pertain strictly to the method used in appraising the property, there is no evidence that if the appraiser had followed the manual that a lower valuation would definitely have been reached. It is possible that use of his independent judgment may have resulted in a higher appraisal. The taxpayer each year was provided notice that he had available the administrative appeal procedures provided by §§ 15-1-402,15-7-102, and 15-15-102, MCA, if he felt the valuation for any reason was not the fair market value. He failed to use these remedies. In fight of this and the discretion conferred by the statute to the County Commissioners, we conclude that the commissioners did not abuse their discretion in denying the refund. This being strictly a legal question, the District Court did not err in granting summary judgment to the DOR and the County. Rule 56(c), M.R.Civ.P. The order of the District Court is

AFFIRMED.

CHIEF JUSTICE TURNAGE and JUSTICES GRAY, HUNT, and WEBER concur.

JUSTICE HARRISON,

dissenting:

I dissent. I would find that this case is controlled by our holding in Department of Revenue v. Jarrett (1985), 216 Mont. 189, 700 P.2d 985, where this Court interpreted § 15-16-601, MCA, in favor of the taxpayer. In Jarrett, the taxpayer alleged that a portion of his taxes were erroneously collected from him. Under § 15-16-601, MCA, that taxpayer in Jarrett was entitled to recover that portion of the tax based on the erroneous assessment which he voluntarily paid in prior years. Jarrett, 700 P.2d at 989.

I would hold that under this Court’s holding in Jarrett, and the interpretation of § 15-16-601, MCA, the taxpayer in the instant case is entitled to the recourse provided under that code section. Here the taxpayer did not own the subject property at the time he learned that the erroneous or illegal taxes had been collected or at the time he made claim for the recovery of those taxes. Nor do I find it significant to the decision that the taxpayer’s successor in interest and not the taxpayer made the appeal to the county board through which the erroneous or illegal tax collection was discovered. I would further note that in this decision the taxpayer has met the requirements in § 15-16-601, MCA, for illegal or erroneously collected taxes.

In an early case, Christofferson v. Chouteau County (1937), 105 Mont. 577, 74 P.2d 427, the Court recognized that the remedy created in § 15-16-601, MCA, is an exception to the common law “voluntary payment rule.” That rule does not and should not bar the taxpayer from a remedy in this case. As I view this section, it provides a taxpayer a remedy for illegally or erroneously collected taxes even though he or she voluntarily paid those taxes when they became due and believed at the time that the taxes were being lawfully and correctly collected.

I would reverse the District Court’s grant of summary judgment and allow the taxpayer to present his case to the trier of fact for a decision on the merits.

JUSTICE TRIEWEILER

dissenting:

I dissent from the opinion of the majority.

This case was dismissed by summary judgment for the wrong legal reasons. The majority treats it as if it went to trial and failed for lack of proof.

In plaintiff’s affidavit in opposition to the Department of Revenue’s motion for summary judgment, he pointed out that he owned the property in question from January 1, 1986, through November 24, 1987, but that it was not until late 1987, after he could no longer file an appeal under § 15-1-402, MCA, that he learned about the illegal and erroneous manner in which his property had been appraised. In late 1987, he learned that the Department of Revenue had issued Policy Statement 83-1 which resulted in an appraisal precluding independent judgment of the appraiser, contrary to the Marshall Swift Valuation Service Manual which had been adopted by the Department of Revenue by administrative regulation, A.R.M. 42.19.101, as the acceptable method for appraising commercial improvements.

Upon learning about the irregularity and the method by which his property had been appraised, plaintiff consulted his attorney, who advised the party that had purchased plaintiff’s property. That party then brought an administrative appeal before the Cascade County Tax Appeal Board, which resulted in a reduction of the appraised value.

George Tyner, the person who had appraised plaintiff’s property, testified at the appeal hearing before the Cascade County Tax Appeal Board. A partial transcript of his testimony was provided to the District Court in opposition to the Department of Revenue’s motion for summary judgment, and established the following facts:

“Q. Anyhow, in evaluating this property for the current appraisal cycle, you then were given a directive by Helena to rank it as a 3, is that correct?
“A. Yes.
“Q. Okay. So the Department of Revenue in Helena just arbitrarily said that the particular franchise motel here will have a 3 regardless of what physical condition it’s in, is that correct?
“A. They put out the policy. I don’t how they arrived at it; if it was arbitrary, if they did some market analysis, or what they did. I don’t know. They didn’t...
“Q. But somebody in Helena ....
“A. Yes.
“Q. ... determined what the quality of this particular motel was here in Great Falls, is that a fair statement?
“A. Yes.
“Q. Did you personally determine it to be a 3?
"A. No.
“Q. You were simply told by Helena that it was 3?
“A. Yes.
“Q. So you didn’t use your own independent judgment in arriving at that cost ranking, is that correct?
“A. No. I did not.
“Q. And you have no alternative but to assign a 3 ranking to the property?
“A. It was my feeling that I was obligated to use their grade level, yes.
“Q. Isn’t use of the Marshall Valuation Service Manual mandated by the Administrative Rules of the State of Montana?
“A. Yes.
“Q. And you’re familiar with ... Does not the Marshall Valuation Service Manual require the use of independent judgment in arriving at the value of the subject property?
“A. That’s my interpretation of it, yes.
“Q. Is it a fair statement then that the Department of Revenue has made no attempt to follow its own guidelines in the Marshall Valuation Service which requires an appraiser to use his own independent judgment when you’ve arbitrarily taken the cost classification from Helena?
“A. I would say that’s a fair statement.
“Q. That’s contrary to the manual, isn’t that correct?
“A. Yes.
“Q. Prior to this policy statement coming out, I would think that it’s a fair statement that this office in Great Falls exercised its own independent judgment and found it to be a class 2 building.
“A. They may have. I don’t know because I don’t have a grade entered.
“Q. At any rate, the DOR say in Helena to place it at a Class 3 building, correct?
“A. Yes.
“Q. Okay. How does Helena really know what the quality of that building is?
“A. I don’t know. I’m assuming before they put out the policy that they did some market analysis. I don’t know if they did or not. I really don’t know.
“Q. If they did any market analysis, you don’t know if it included the Great Falls property or not?
"A. No, I don’t.”

It is clear from Tyner’s testimony that the taxes levied on plaintiff’s property were based upon a method of appraisal which violated the Department of Revenue’s own administrative rules. The method of assessment was, therefore, erroneous and illegal, and the County Tax Appeal Board found that the assessment which resulted from that method of appraisal was excessive.

Plaintiff was not in possession of this information within the time allowed for filing appeals under § 15-1-402, MCA. Therefore, his situation is exactly the kind of situation for which § 15-16-601, MCA, was intended.

Section 15-16-601, MCA, provides in relevant part that:

“(l)(a) Any taxes ... erroneously or illegally collected ... may, by order of the board of county commissioners, be refunded by the county treasurer.”

In Department of Revenue v. Jarrett (1985), 216 Mont. 189, 700 P.2d 985, the issue was simply whether the value of property can be changed for past tax years pursuant to § 15-8-601, MCA, when a taxpayer has not filed any administrative appeals as to those tax years. We held that it could. In disposing of the Department of Revenue’s argument that the taxpayer was barred under § 15-8-601, MCA, by failing to have availed himself of the appeal process under § 15-1-402, MCA, we stated:

“This statute is permissive not mandatory. A taxpayer can only use this protest procedure if he is aware that his taxes may be incorrect at the time he pays them. A taxpayer who does not know he is being overtaxed will not pay his taxes under protest and can not receive a refund under section 15-1-402, MCA.
“Section 15-16-601, MCA, provides the necessary relief for respondent.
“Clearly, section 15-16-601, MCA, was not meant to be used in lieu of the section 15-1-402, MCA, requirements of paying under protest, but when the recourse of section 15-1-402, MCA, is not available, a taxpayer can obtain a refund under section 15-16-601, MCA.”

Jarrett, 216 Mont. at 192-94, 700 P.2d at 987-88.

Furthermore, even though the relief provided for by § 15-16-601, MCA, is discretionary, this Corut found that the discretion of the county commissioners can be abused, and so held on appeal. We stated:

“Section 15-16-601, MCA, provides that taxes paid erroneously may be refunded by the county treasurer, ‘by order of the board of county commissioners’ The Yellowstone Board of County Commissioners denied respondent’s request for a tax refund. However, respondent has followed the proper procedure for appealing that decision.
“The Yellowstone County Tax Appeal Board properly reviewed the respondent’s case and determined respondent was due a refund.
"... The state board found an erroneous appraisal resulted in a mistaken levy. This finding was contrary to the finding of the county commissioners. The evidence was in dispute and the finding could go either way.
“It is the opinion of the Court that under section 15-16-601, MCA, respondent should receive a tax refund for the erroneous assessment made on his land in 1978 through 1981. We remand to the Yellowstone Board of County Commissioners with instructions to order the Yellowstone County Treasurer to issue a refund to respondent.”

Jarrett, 216 Mont. at 194-95, 700 P.2d at 988-989.

In spite of the majority’s efforts, the circumstances in Jarrett are indistinguishable from the circumstances in this case. In Jarrett, the taxpayer’s land was erroneously appraised based on inaccurate factual information. In this case, the taxpayer’s land was erroneously and illegally appraised, based upon an improper method of appraisal which was based upon arbitrary and inaccurate information about its true value. In both cases, the taxpayer was unaware of the error or irregularity until after the time had expired for filing appeals under § 15-1-402, MCA. Therefore, in neither case could the taxpayer avail himself of the administrative appeal process.

The majority emphasizes that the statute relied upon by plaintiff uses the word “may” and is therefore permissive, rather than mandatory. However, the permissive language in the statute did not prevent this Court from reversing a decision of the county commissioners in Jarrett when its discretion was found to have been abused.

Furthermore, the County Commissioners in this case failed to exercise the discretion which § 15-16-601, MCA, requires that they exercise. The plaintiff filed a verified petition for a refund of taxes with the County Commissioners on September 29, 1988. As of February 16, 1989, five and one-half months later, the County Commissioners had taken no action on the plaintiff’s petition.

On February 16, 1989, plaintiff filed a complaint in the District Court for review of the commissioners’ inaction. However, the District Court did not review the commissioners’ inaction to determine whether its discretion had been abused. The District Court erroneously dismissed plaintiff’s complaint by summary judgment based upon its erroneous conclusions about the applicability of the Jarrett decision to this case. The District Court concluded that Jarrett was inapplicable for the following reasons:

1. In Jarrett, the Department of Revenue discovered its own error;

2. In Jarrett, the same person owned the property at the time the error was made and at the time it was discovered; and

3. The person who succeeded plaintiff as the owner of the property in this case paid under protest and appealed to the County Tax Appeal Board.

None of the factual distinctions relied upon by the District Court were in any way material to this Court’s decision in Jarrett.

The County Commissioners gave no reasons for not granting plaintiff’s petition, and the District Court failed to review the County Commissioners’ inaction to determine whether they abused their discretion. Therefore, the fact that § 15-16-601, MCA, is permissive is irrelevant to our review of this case. How can we conclude that the board did not abuse its discretion when the board never exercised its discretion and we have absolutely no record from which to determine how it arrived at its decision to ignore plaintiff’s petition? We do not even have any basis to conclude that it decided to ignore plaintiff’s petition. For all we know, and for all plaintiff knows, the petition could have been lost on a clerk’s desk and the commissioners may have never seen it.

The majority tries to distinguish Jarrett on the ground that the mistake in that case was clerical in nature and resulted in an assessment which should never have been made. However, that is not correct. There was ultimately a correct appraisal from which a tax was levied. The problem with the original appraisal was simply that it was “erroneous.”

The basis of plaintiff’s claim in this case is that when the appraiser failed to use his own independent judgment while appraising his property, he violated the regulations, rules, and laws established by the Department of Revenue. Therefore, the appraisal was illegal and the tax levied pursuant to that appraisal was illegal and erroneous. The majority’s effort to ignore that undisputed fact is at best a classic example of sophistic reasoning. The majority states:

“The appraiser admitted that he used the DOR’s cost ranking policy rather than exercising his own independent judgment in appraising the property. However, his testimony does indicate that he did use his independent judgment in deciding that he was obligated to follow the DOR’s cost ranking. Thus, the alleged error here is not clerical, it involves the exercise of the appraiser’s judgment in determining what method he should use.”

In other words, what Tyner did was okay because he used his own judgment in deciding not to exercise his own judgment.

Next, the majority concludes that “[t]hus, unlike Jarrett and Christofferson, it is not certain that the taxes levied against the property during this taxpayer’s ownership were in fact excessive.”

Of course, it is not clear that they were excessive. We can presume that they were excessive by the mere fact that the County Tax Appeal Board reduced them by 20 percent when they were appealed. However, we cannot know they were excessive because plaintiff was denied an opportunity to prove what the results would have been had the correct appraisal method been used when bis claim was dismissed by summary judgment for the wrong legal reasons.

Finally, this Court relies on its previous decision in North Butte Mining Co. v. Silver Bow County (1946), 118 Mont. 618, 169 P.2d 339. However, the facts on which that decision was based are in no way similar to the facts in this case. In North Butte Mining Co., plaintiff’s net proceeds taxes were computed by the State Board of Equalization based upon figures submitted by plaintiff. The plaintiff’s figures included government bonuses or subsidies which should not have been included. This Court found that any error in that case was a direct result of actions by the taxpayer and not by the government. That was the basis for our decision that § 2222, R.C.M. (predecessor to § 15-16-601, MCA), was inapplicable. We stated:

“To constitute a wrongful or illegal levy, assessment or collection there must have been -unwarranted or illegal action on the part of the taxing officials. There is none such here. The only assessment and levy that could have been made under the facts contained in the statement furnished by plaintiff was the assessment and levy which was made and the only proper tax to be collected from the statement furnished was that which was collected.
“Since the statute does not authorize the refund of taxes voluntarily paid through mistake of law on the part of the taxpayer, plaintiff’s claim was properly disallowed by the county.”

North Butte Mining Co., 118 Mont. at 620, 622, 169 P.2d at 340, 341 (emphasis added).

In this case, unlike North Butte Mining Co., the error or illegality complained of was committed by the State’s appraiser. The plaintiff had nothing to do with the conduct complained of. Therefore, North Butte Mining Co. has nothing to do with the facts in this case.

For these reasons, I would find that, while the County Commissioners have some discretion under § 15-16-601, MCA, they have abused that discretion by failing to act in any way. I would reverse the District Court and remand this case to the Board of County Commissioners for Cascade County with instructions to properly consider plaintiff’s petition, and either grant it, or in the event that it is denied, to set forth proper findings and conclusions which form the basis for its denial so that that decision can be properly reviewed by the District Court.


source: Caselaw Access Project

author: MR,. JUSTICE PIGOTT

license: Public Domain

text:
    STATE ex rel. KING et al., Plaintiffs, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.
    (No. 1,536.)
    (Submitted December 10, 1900.
    Decided January 14, 1901.)

      Certiorari — Costs—Stenographers Fees — Costs of Printing Brief.

    1. The fee bill of the Clerk of the Supreme Court, as provided by Political Code, Sec. 872, making no provision for an appearance fee of the defendant in special proceedings, none can be charged by the clerk in a certiorari proceeding.
    2. Since, under Code of Civil Procedure, See. 1943, the elerkAf the court to which a writ of certiorari is directed must return the transcript required by the writ to the court out of which the writ issued, the outlay incident to uie carriage of the return, maps, etc., should be ultimately borne by the party whose fault occasioned the expense.
    3. The cost of expressing briefs to the Supreme Court is not properly taxable as part of the costs.
    4. Under Code of Civil Procedure, Sec. 1866, awarding the legal fees paid stenographers for per diem or for copies as costs to the party entitled to costs, and Section 373, prescribing the legal fees of stenographers for copies of the testimony transcribed from their notes, since the clerk cannot transcribe the stenographic notes into longhand, the fee paid the stenographer for such transcription is chargeable as part of the costs.
    5. The expense of printing briefs in the Supreme Court is chargeable as part of the costs.
    6. Pees paid stenographer's in taking dictation of briefs for the Supreme Court and typewriting them are not taxable to the defeated party.

      Certiorari by tbe state, on tbe relation of Silas F. King and others, to tbe District Court of tbe Second Judicial District and tbe judge thereof. Motion for retaxation of costs.
    Sustained in part.

      Messrs. McBride & McBride and Mr. E. N. Harwood, for Plaintiffs.

      Mr. C. P. Drennen and Messrs. McHatton & Cotter, for Defendants.
   MR,. JUSTICE PIGOTT

delivered tbe opinion of tbe Court.

A writ of certiorari was quashed and this proceeding dismissed at tbe costs of tbe plaintiffs. (24 Mont. 494, 62 Pac. 820.) Tbe defendants having filed their memorandum of costs, tbe plaintiffs object each item therein contained and move that it be disallowed upon tbe ground that it is not a proper charge against them. No suggestion is made that any charge is unreasonable in amount, nor that tbe expense has not been actually incurred.

Tbe first item is $5 for tbe appearance fee of tbe defendants in this Court. Upon tbe authority of State ex rel. Baker v. Second Judicial District Court, 24 Mont. 425, 62 Pac. 688, this charge must be rejected; Tbe next items of which complaint is made are charges amounting to 90 cents, paid to an express company for transmitting the return and maps, used on the hearing in the district court to illustrate the testimony of witnesses, to the office of the clerk of the supreme court; this we believe to be a reasonable and necessary expense incurred for the purpose of lodging the return in the office of the clerk, for in certiorari proceedings the clerk of the court to which the writ is directed must return to the court out of which the writ has issued the transcript required by the writ (Section 1943 of the Code of Civil Procedure), and the outlay incident to the carriage should ultimately be borne by the party whose fault occasioned the expense. But the charge of 60 cents for “express on briefs” is not properly taxable, and is stricken out. The next item is “Stenographer’s fees, transcript included in return, $25.00.” The plaintiffs, it seems, considered that the evidence taken at the hearing in the district court might, upon their theory of the case, be deemed material here, and they practically asked that it be included in the return; it further appears that the evidence embodied in the transcript was taken down in shorthand by the official stenographer at the hearing, and was afterwards, by request of the defendants, translated into longhand. A copy of the translated notes of the evidence is included in the transcript certified by the clerk. Section 1866 of the Code of Civil Procedure provides: “A party to whom costs are awarded in an action is entitled to include in his bill of costs, his necessary disbursements as follows: * * * the legal fees paid stenographers for per diem or for copies. * * *” Section 373 of the same Code prescribes the legal fees of stenographers for copies of the testimony and proceedings written out at length or in narrative form from their notes. Under these circumstances, in view of the inability of the clerk to transcribe the phonographic notes of the official reporter, we think this item should not be stricken out; and State ex rel. Baker v. Second Judicial District Court, supra, is to De distinguished in this respect from the present case, for in the former the matters required to be returned by the clerk of the district court were copies, which he could make, of the records in his office, — there the fee paid to the clerk was not authorized by law, while here the fee paid to the official stenographer is expressly prescribed by’ statute. Another item is a charge of $18 for printing briefs filed in this Court; such charge is taxable, according to the course and practice of the Supreme Court. (Ryan v. Maxey, 17 Mont. 164, 42 Pac. 760; Waite v. Vinson 18 Mont. 410, 45 Pac. 552; Stale ex rel. Baker v. Second Judicial District Court, supra.) The last item is $20 paid to a stenographer for taking in shorthand the dictation of briefs and typewriting them; this is not a legal cost or disbursement taxable to the defeated party; it is disallowed.

It is therefore ordered that the following items in the memorandum be disallowed: Appearance fee paid to the clerk of the supreme court, $5; express on briefs, 60 cents; stenographer’s fees in preparing briefs, $20. The other items, amounting to $43.90, are allowed and taxed in favor of the defendants and against the plaintiffs.

Mr. Justice Milburn not sitting.


author: MR. JUSTICE PIGOTT

text:
    TALBOTT, Appellant, v. HEINZE Administrator, Respondent.
    (No. 1,196.)
    (Submitted April 27, 1900.
    Decided January 21, 1901.)

      Bills and Notes — Failure of Consideration — Contemporaneous Contracts — Time as Essence — Evidence—Failure of Proof— Allegations and Proof — Correspondence.
    1. A note sued on was given in consideration of tlie written contracts of the payee, made a few days before the date of the note, that he would, on or before a certain day, purchase or procure a purchaser for the maker’s interests in certain mines at a stated price, and that, if he failed so to do, the maker would be. absolved from all liability to convey such interests. Held, that these contracts were admissible, under Civil Code, Sec. 2207, as relating to the same matters as the note in suit between the same parties, and as parts of substantially one transaction.
    2 Where a note was given in consideration of the payee’s written promise to pay a stated amount for the maker’s interest in certain mines before a stated time, such time being expressly declared to be of the essence of the agreement, or that otherwise the maker would be released frdm all liability to convey such interests, failure to show that the interests were sold within the prescribed time and for the stated price, or a waiver of such conditions, was fatal to a suit on the note.
    3. Where a note sued on was payable only on the sale of the maker’s interests in certain mines according to the terms of certain contracts made with the payee, an offer to prove that, after a sale of such interests, which did not occur until the time expressly limited by the contracts had expired, the maker had acknowledged the note, -and promised to pay it, was an effort to prove a different contract, and inadmissible.
    4. Allegations and proofs must correspond.

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

    Action by James A. Talbott against E. Augustus Heinze, as administrator of the estate of James Larkin, deceased. Erom a judgment for defendant, and from an order denying a new trial, plaintiff appeals.
    Affirmed.

      Mr. George A. Clark, for Appellant.

      Mr. C. P. Drennen, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The subject of this, action, as alleged in the complaint, is a supposed .contract, or promissory note payable upon condition, of which the following is a copy:

“Butte City, Montana, October 1st, 1891.
“Eor value received, I promise to pay to Robert C. Burton the sum of five thousand dollars upon sale of the Snohomish or Tramway mines, said mines being in Summit Valley mining district, Silver Bow county, Montana, and under bond to said Robert C. Burton. “James Larkin,
“James A. Cummings,
“Witness.”

The plaintiff, as assignee of the note, sued to recover the amount thereof, the complaint stating that on the 4th day of May, 1893, Larkin sold and conveyed the Snohomish and Tramway mines to the Bntte & Boston Mining Company; that thereafter Larkin was judicially declared to be of unsound mind and the defendant Largey was appointed guardian of his person and estate; that on the 12th day of May, 1896, the plaintiff presented to the guardian his claim against Larkin upon the note, which claim the guardian rejected by omitting to take action thereon within ten days after its presentation; and that no part .of the note has been paid. The defendants in their answer denied that Lárldr. executed or delivered the note, and alleged that if Larkin made the note the only consideration for it was an agreement on the part of Burton, the payee, to sell for Larkin his interest in the Tramway mine for the sum of $65,000, and by such sale to obtain for Larkin that sum on or before the 10th day of May, 1892, and to sell for him his interest in the Snohomish mine for the sum of $25,000, and upon such salo to obtain for him that sum on or before the day last mentioned; that Burton never effected such sale of the interest of Larkin in either the Tramway or Snohomish lode claim and never obtained for him the price of $65,000 for his interest in the Tramway, nor the sum of $25,000 for his interest in the Snohomish mine; that Burton wholly failed to comply with the terms of his agreement to effect a sale of the lode claims, whereby the consideration of the note wholly failed and the note is without consideration. The answer contained another defense which need not be stated. In reply the plaintiff denied that the consideration of the note was in whole or in part an agreement of Burton to sell for Larkin his interest in the Tramway mine for $65,000, and by the sale to obtain for Larkin that sum on or before the 10th day of May, 1892, or any other day, and to sell and obtain for Larkin the price of $25,000 for his interest in the Snohomish lode claim on or before May 10, 1892, or any other date; he denied that the only, or any part of, the consideration for the note was an agreement of Burton to sell and obtain for Larkin any fixed sum for both or either of the mines or on or before any date. There was a verdict and judgment for the defendants. The plaintiff appeals from an order refusing a new trial and from the judgment. Since the taking of the appeal, Larkin, and Largey, his guardian, have died and F. Augustus Heinze, as administrator of the estate of Larkin, has been substituted in their stead as the defendant and respondent.

Although twenty-three alleged errors are specified, the consideration of two of them suffices to raise a question the answer to which will obviate the necessity of determining any other point. It is, conceded that prior to May 4, 1893, Larkin was the owner of an undivided two-thirds interest in the Tramway lode claim and of an undivided one-half interest in the Snohomish lode claim, 1he remaining interests being then owned by one McNamara. Burton, who was called as a witness for the plaintiff, testified that “the foundation for the giving of the note in suit” was the written leases and contracts, hereinafter described, dated September 26, 1891, entered into between Larkin and himself in respect of the Snohomish and Tramway lodq claims. Before these contracts were made Burton asked Larkin to sign the note, which Larkin agreed to do, Burton further testifying that the note was intended “as a part of my commission for effecting- a sale of the property under bond.” The “bond” of which be speaks consists of the two contracts of September 26, 1891. It further appeared-that a sale of his interest in the Snohomish and Tramway lode claims was made by Larkin to the Butte & Boston Mining Company on the'3d day of May, 1893, for the sum of $22,100, the evidence tending tG prove that Burton assisted in bringing about the sale. The defendants then offered in evidence the two leases and contracts referred to by Burton in his testimony, made on the 26th day of September, 1891, five days before the date of the note described in the complaint, between Larkin and Burton, by which Larkin let to Burton for a term ending with the 10th day of May, 1892, his interests in the two mining claims, and in which Larkin promised that in the event Burton should on or before the 10th day of May, 1892, pay to him the sum of $65,000, the purchase price agreed upon between the parties for Larkin’s interest in the Tramway lode, or the sum of $25,000 for his interest in the Snohomish lode claim, or the sum of $90,000. for both interests, he would immediately upon receipt of the money convey to Burton the property so purchased. Each contract further provided that if Burton failed to pay to Larkin the purchase price mentioned therein on or before the 10th day of May, 1892, Larkin should be absolutely released from his .agreement to convey and should ,no longer be held or bound thereby, time being declared to be of the essence of the agreement to convey. The time prescribed in the lease and agreement with respect to the Snohomish lode claim for performance by Burton of the conditions was extended so as to include October 1, 1892. The defendants also offered in evidence two contracts dated September 26, 1891, between McNamara and Burton containing the same provisions as those set out in the contracts between Larkin and Burton, except that the interests which McNamara promised conditionally to convey were one-half and one-third, respectively, in the Snohomish and Tramway lode claims, the price agreed upon therefor being $30,000 for McNamara’s interest in the Snohomish and $80,000 for his interest in the Tramway. To the introduction of these four-contracts the plaintiff objected upon the grounds that they were immaterial, irrelevant and incompetent, and as contradicting, altering or varying the note sued upon by evidence contained in other written agreements which do not appear to have been contemporaneous therewith. The objection was overruled, tho plaintiff excepting, and the papers were received in evidence. The admission of these contracts is specified as error.

Whether the contracts between Burton and McNamara were relevant we do not inquire; if irrelevant, their admission did not prejudice the plaintiff. The contracts between Larkin and Burton of September 26, 1891, and the contract or note in suit related to the same matters, were between the same parties, were made as parts of substantially one transaction, and all of them were, therefore, relevant and material. They should be taken together as one contract. This common-law rule has been incorporated into Section 2207 of the Civil Code. So reading the contract which is the subject of the action, it manifestly appears that the $5,000 therein mentioned was to be paid by Larkin to Burton only in the event that Larkin’s interest in the Snohomish lode claim should, on or before October 1, 1892, be sold to or through Burton for the sum of $25,000, and his interest in the Tramway lode claim should be sold to or through Burton for the sum of $65,000, on or before the 10th day of May, 1892. There was no evidence tending- to prove that a sale of either interest was made within the prescribed period, nor that the purchase prices agreed upon in the contracts of September 26th were ever paid; on the contrary, the only sale Avas the one of May 4-, 1893, the purchase price of both pieces of property being $22,100. Time Avas expressly declared to be of the essence of the contract of sale; and the payment of the full sum of $90,000 was also a material and essential part of these agreements. For auglit that appears in the pleadings or evidence the conditions of the contracts of September 26, 1891, liad not been performed by Burton; unless these conditions Avere waiAred by Larkin, or the contract Avas modified or a neAV contract made, the plaintiff failed to make a case sufficient to go to the jury. This brings us to the only other specification of error which need be noticed:

Plaintiff offered to prove by Burton that on May 4, 1898, after the sale was made to the Butte & Boston Mining Company, the witness had a conversation Avith Larkin in Avhich Larkin acknowledged the note and promised to pay it. An objection to the offer as an attempt to prove a contract other than the one sued upon Avas sustained, the plaintiff excepting. In this there was no error. The subject of the action was the note of October 1,1891, AAhich, as the evidence disclosed, Avas payable by Larkin only upon the performance by Burton of certain conditions expressed in two other contracts of date September 26, 1891; the cause of action stated was the alleged breach by Larkin of the sirpposed obligation imposed upon him to pay $5,000 upon a sale being made of his interests in the mines at any time whensoever and at any price whatsoever. The plaintiff’s offer was an effort to prove a subsequent contract by which Larkin waived the performance by Burton of the conditions imposed upon him. and not the contract upon which the action was based. The plaintiff counted upon one contract and sought to prove a different contract as the basis of his action. No new contract was pleaded, nor was it alleged that .Larkin had waived the performance of the conditions as to time and price. The allegations and proofs must correspond. The conditional liability of Larkin under the contracts of September 26 and' the note of October 1, 1891, had ceased by the very terms of the contracts themselves before the day — May 4, 1893 — when Larkin’s interests in the lode claims were sold for $22,100, instead of $90,-000. A plaintiff must recover for the breach of the contract forming the basis of his action, and will not be permitted to prove as his cause of action the breach of a different contract. Although the evidence offered would, if received, have tended to support the averment that Larkin executed the note, yet this could not have aided the plaintiff, for upon the pleadings and admitted facts he was not entitled to submit the case to the jury. Though the defendants had conceded that Larkin made the note, the vital defect in the case would still exist. The liability of Larkin depended upon the performance or fulfillment of certain conditions by Burton; Burton confessedly failed to perform them.

Being of the opinion that upon the evidence the plaintiff did not make, and that under the pleadings and his offers of evidence, he could not have made, a sufficient case to go to the jury> we refrain from deciding any of the other questions presented by the record.

The judgment was clearly in favor of the party entitled to it. The order refusing a new trial and the judgment are therefore affirmed.

Affirmed.


author: MR. JUSTICE MILBURN

text:
    STATE, Respondent, v. WHORTON, Appellant.
    (No. 1,563.)
    (Submitted January 14, 1901.
    Decided January 21, 1901)

      Criminal Law — Grand Larceny — Evidence—Instructions.
    1. Evidence, in a prosecution for a grand larceny, reviewed, and held, insufficient to convict the defendant, since it raised no more than a suspicion of the alleged guilt of the defendant.
    2. In a prosecution for grand larceny, an instruction that “in this ease cere is n,o allegation in the information that the property was in excess of fifty dollars ; therefore it must have been taken from the person of the said G., or else defendant must be found not guilty,” — though not perspicuous, correctly stated the law, when considered with other instructions defining grand larceny.

      Appeal from District Court, Choteau County; Dudley Du hose, Judge.

    Ben Wi-iorton was convicted of grand larceny, and hie appeals.
    Reversed.

      Mr. Wm. G. Downing, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

The defendant, Ben Whorton, was tried in the district court of Choteau county on the 24th day of February, 1900, upon an information charging’ him with the crime of grand larceny, in that, as it was alleged, he did feloniously steal, take and carry away from the person of one George Pulliam two $20 gold pieces, coin of the United States, of the value of $20 each, the property of the said George Pulliam.

The record recites that the defendant was duly arraigned, and that, it appearing to the court that he was without means and without counsel, the court assigned counsel to defend him; that thereafter, it appearing that the court had been misinformed as to the poverty of the defendant, the court revoked its order assigning counsel: that, as appears from the record, the case was on February 23d set for trial; that, the cause coming up for trial on the 24th, the defendant elected to go to trial without counsel, and, the jury being duly impaneled and sworn, the cause proceeded to trial, and, being submitted to the jury, the defendant was convicted, and sentenced to a term of eight years in the state’s prison.

The defendant having employed counsel after conviction, a motion for a new' trial was duly made, heard, and denied, and an appeal taken from the judgment and the order denying such new trial.

The points relied upon by counsel in his brief and argument are as follows: (1) That the verdict is contrary to the law and evidence; (2) that the defendant was not arraigned as required by law; (3) that the defendant was not represented by counsel at the trial; and (4) that instruction No. 7 was against the law.

This Court is of the opinion that the verdict of guilty is not supported by the evidence. Without considering the evidence which is favorable to the defendant, but taking into consideration that only which might tend to prove his guilt, it appears therefrom that on the day of the alleged crime the prosecuting witness, George Pulliam, and the defendant had been in a saloon together at Fort Benton, where the defendant had been “hanging around” Pulliam, and where they had been gambling together, and where the prosecuting witness exhibited certai3i $20 gold pieces and other money to several persons, including the defendant; that in the night of the same day the prosecuting witness engaged in a scuffle with some one not the defendant, severely injuring his leg, so that it was necessary to take hipa to the hospital, that he was carried in a wagon which had a seat running lengthwise on each side thereof; that defendant went with the surgeon and the prosecuting witness, holding the head and shoulders of the latter while the docto t held the foot and ankle of the injured man; that, arriving at the hospital, the doctor went to the building to inform the nurse, and while he was gone the defendant asked the prosecuting witness to give him some money “to eat on;” that the prosecuting witness said that he would give him some money after he goi over his pain; that defendant was “pretty handy there” in the room until the leg was set; that the prosecuting witness had two $20 gold pieces loose in the pocket of his mackinaw, and one $20 gold piece in his purse besides; that the prosecuting witness found his two $20 gold pieces were missing and gone about half an hour after his leg was set at the hospital; that two or three days thereafter the defendant was seen to have “a lot of bills” and two $20 gold pieces, which he was “flourishing, around;” and that on the day of the accident, and before, defendant had been heard to make statements showing that he was without money. These appear to be all of the incriminaring facts.

The Court is of the opinion that this evidence does not raise more than a suspicion of the alleged guilt of the defendant, and that the defendant should not have been convicted thereon.

Instruction No. 7, complained of , is as follows, to-wflt: “In this case there is no allegation in the information that the property was in excess of fifty dollars; therefore it must have been taken from the person of the said George Pulliam, or else the defendant must be found not guilty.” When read with the instructions defining grand larceny, instruction No. 7 correctly states the law, but is not, perhaps, a model as to the style of language used to express the idea intended to be conveyed to the jury, and upon a new trial may well be remodeled by the court.

As the other questions raised are not likely to arise upon a new trial, they are not passed upon in this opinion.

The judgment and order appealed from are therefore reversed, and the cause is remanded for a new trial.

Reversed and Remanded.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    MURRAY et al., Appellants, v. MONTANA LUMBER AND MANUFACTURING CO., Respondent.
    (No. 1,247.)
    (Submitted October 5, 1900.
    Decided January 28, 1901.)

      Public Lands — Mining Claims — Certificate of Purchase— Patents ■ — - Trusts — Ejectment — Defenses — Evidence — Appeal — Pules of Supreme Court — Briefs—Assignment of Error.

    1. Where appellant’s brief, — filed while former rules were still in force, — • contains assignments of error which fail to comply with the requirements of the former, as well as the present, rules, such assignments will not be considered.
    2. Where an assignment of error in appellant’s brief, tnough fatally defective under the rules in force when the brief was filed, yet so far complies with the present rules as to enable the Supreme Court to examine the questions raised by it without additional labor, the Court will waive such . defect.
    3. Where assignments of error are not referred to in the argument in appellant’s brief, the Court will assume that counsel for appellant considered tnem without merit.
    4. The courts will exercise their equitable powers to control and limit the operation of a patent as between adverse claimants wnenever it is made to appear that by a mistaken application of the law to tlie facts by the officers of the land department the patent has been issued to the wrong person, or when the holder of the legal title under it has obtained it by fraud upon the rights of one who is entitled to it.
    5. A certificate of purchase issued by the government Is evidence that the party receiving it had complied with all the conditions prescribed by law, and that he had acquired a vested interest in the land covered by the certificate.
    6. The land covered by a certificate of purchase, immediately on the issuance thereof, becomes segregated from the mass of the puolic lands, and it is not subject to entry by any one else, and the officers of the land department have no right to convey said land to any one else, so long as the certificate is outstanding.
    7. Where plaintiff brings ejectment to recover a mining eiaim, and the defendant offers evidence of a superior claim, and that plaintiff wrongfully obtained the patent thereto, and holds the property in trust for defendant, it is not error to refuse to strike out such evidence for insufficiency, but the proper method is to move to direct a verdict.
    8. Where ejectment is brought to recover a mining claim which has been patented to the plaintiff, the defendant may' show as a defense thereto that he had purchased a prior claim thereto, and was entitled to a patent therefor, but that his vendor afterwards wrongfully conveyed the same property to a third person, who relinquished the claim to the government, which enabled plaintiff to obtain title to the property.
    9. Where defendant in ejectment for a mining claim patented to plaintiff claims under a prior claim purchased from one who received a certificate of purchase therefor, he may show that plaintiff’s parent was wrongfully procured, though his vendor did not adverse the ejector's application.
    10. Where evidence offered by defendant is admissible against one plaintiff, but not against another, the latter cannot complain of the refusal of the court to strike out such evidence.

      Appeal from District Court, Silver Bow County; John Lind’ say, Judge.

    Ejectment by James A. Murray and Home Investment and [Realty Co. against tbe Montana Lumber & Manufacturing Company. From a judgment in favor of the defendant, and from an order denying a new trial, the plaintiffs appeal.
    Affirmed.
    Statement oe the Case.
    Action in ejectment to recover possession of a portion of the [Railroad lode mining’ claim, situate in Silver Bow county, and designated as mineral entry No. 1,594. The complaint is in the ordinary form, alleging title and right of possession in plaintiffs, and ouster by defendant. The answer denies title and right of possession in plaintiffs, admits that defendant is in possession, and then proceeds, by way of equitable counterclaim, to allege facts upon which defendant demands a decree declaring the plaintiffs are trustees of the legal title for its benefit, and requiring them to convey the same to it by suitable conveyance. To the counterclaim replication is made, denying many of the allegations made therein, admitting others, and averring-that defendant should not be heard to set up any claim to the title, because no adverse claim had been made by defendant during the period of publication under Murray’s application for patent; and upon the issues thus raised a trial was had to a jury which rendered a general verdict for plaintiffs, with special findings as to the facts, stated in the counterclaim. There upon the court, on motion of defendant, rejected the general verdict and certain of the special findings, approved the others, and entered judgment thereon in favor of the defendant for the relief demanded.
    The facts set forth by defendant and found by the jury may be stated substantially as follows: On June 24, 1880, one John Noyes and his wife, Elmira, under a location made on Octobei 27, 1879, applied to the United States for a patent to the Placei mining claim through the United States land office at Helena; and thereafter such proceedings were had in pursuance of thhi application that on February 26, 1886, they paid the purchase price to the government, and received a certificate of purchase. This claim was designated as mineral application No. 787 and mineral entry No. 1,347. On January 30, Noyes and wife conveyed the whole of the claim to James W. Forbis. On November 28, 1888, the same grantors, in conjunction with one Upton and his wife, again executed a deed to the same property to the said Forbis; and on May 4, 1889, said Forbis and his wife conveyed the portion thereof in controversy herein to the defendant, which thereupon entered into possession. These various conveyances were properly acknowledged and recorded with the county clerk of Silver Bow county. On August 1, 1887, the plaintiff Murray applied to the United* States land department for a patent to the Railroad lode mining claim, under a location thereof made on October 29, 1881. The applica tion proceeded to entry, but, pending the approval of the entry by the commissioner of the general land office, and on June 16, 1888, it was discovered by that officer that there was a conflict between the Placer claim and the Railroad lode claim; and, x1 appearing that the latter had been located after the patent for the former had been applied for, it was ordered that the entry of the latter be held for cancellation to the extent of 7.18 acres, the area of the conflict. So the matter stood until August 21, 1889, when the commissioner of the general land office ordered a hearing in the land office at Helena as to the merits of the conflict The proof upon this hearing was taken, but before the controversy was decided there was filed in the land office at Helena a paper, dated September 2, 1890, purporting to be a relinquishment to the United States of the conflicting area, by one George H. Casey and one Charles S. Warren and wife, together with an abstract of the title showing the conveyance^ from Noyes and wife to James, W. Forbis, heretofore mentioned, and one from James W. Forbis and wife, dated July 8, 1890, to said Warren and Casey. These papers were transmitted to the department at Washington. Thereupon such proceedings were had in the general land office, that on January 24, 1891, the Railroad claim was passed to patent, including the area in conflict between it and the Placer claim; the patent being issued on March 20, 1891. On June 28, 1894, Murray conveyed an undivided fourth interest in the claim to his co-plaintiff, and it is now held by them in common.
    The evidence further showed that the portion of the Railroad lode claim in controversy here was included in the area in conflict between this claim and the Placer claim. There was no-proof tending to show that Noyes and wife, or the defendant, adversed the claim of Murray in the land office at Helena pending his application for patent.
    The plaintiffs have appealed from the judgment and an order denying them a new trial.

      Mr. Frank W. Haskins and Mr. John W. Cotter, for Appellants.
    Assuming that defendant had some right to the ground in controversy under mineral entry No. 1,347, yet that right should come through Noyes, as, he was the applicant for tins patent and had control of the patent proceedings. Noyes, being the claimant of the ground in controversy, might release and waive his adverse claim. (2 Lind., Mines, Sec. 776; Richmond Min. Co. v. Rose, 114 H. S. 576, L. Ed. 273, 276.) Assuming, however, that there was no authorization by either defendant or Noyes, yet it is not shown that Murray had any notice of the issuance of the receiver’s receipt to either of them, and, hence, he did not take subject to their equitable claims, unless such notice was brought home to him. (Lindsey v. Halves, 2 Black (U. S.), 554, L. Ed. 265; Stark v. Starr, 6 Wall. 402, L. Ed,. 925, 930.) The record of the deed from Forbis to the defendant for the ground in controversy was not notice to Murray or to the Home Investment & Realty Company, as they were not purchases under the same grantor. (1 Devlin, Deeds, Secs. 713, 714; Long v. Dollarhide, 24 Cal. 218; Hager v. Sped, 52 Cal. 579; Roberts v. Bourne (Me.), 39 Am. Dec. 614.) It not being shown in the case that Noyes did not authorize a relinquishment of the ground in controversy, the defendant has failed to show itself entitled to the patent title, and hence it is not in a position to have Murray decreed a trustee. (Meyendorf ~v, Frohner, 3 Mont. 282, 322.)
    Upon the trial the defendant offered in evidence a certified ■copy of the receiver’s receipt issued to Noyes,, which was oh jected to as incompetent, irrelevant and immaterial, for the reason that the record shows that a patent was issued to Murray for-the Railroad lode claim after the issuance of the receipt, .and there is no proof of any adverse claim or suit instituted .against Murray’s application, and that they are barred and es-topped from asserting any claim to the property at this time, The patent of the United States may be relied upon for peace and security. (Eureka Min. Go. v. Richmond Min. Go., 4 Saw* 302, 9 Mor. M. R. 578.) The doctrine of res adjudicóla should be rigorously applied to the litigation brought to test the right to the issue of a patent. (^20 Min. Go. v. Bullion Min. Go., 3 Saw. 634, 11 Mor. M. -R. 608.) A patent cannot be collaterally attacked for fraud. (Meyendorf v. Frohner, 3 Mont. 282, 321; Boggs v. Merced Min. Go., 14 Cal. 279, 10 Mor. M. R, 334; United States v. Marshall S. Min. Go., 129 U S. 579, L. Ed. 734, 16 Mor. M. R. 205; Steel v. St. Louis, etc., Go., 106 U. S. 447, L. Ed. 226; Gale v. Best, 78 Cal. 235.
    Defendant waived its rights, both legal and equitable, in the property by not adversing the Railroad lode claim application for a patent. (U. S. Rev. Stat. Secs. 2325,2326; Moxon v. Wilkinson^ Mont. 421; Meyendorf v. Frohner, 3 Mont. 282; Raunheim v. Dahl, 6 Mont. 167; Butte Hardware Co. v. Gobban, 12 Mont. 351; Black v. Elkhorn Min. Go., 49 Eed. Rep. 549 ;Eureka Min. Go. v. Richmond Min. Go., supra; Richmond Min.

      Co. v. Rose, sufra', Gwillim v. Donnellan, 115 IT. S. 45, L. Ed. 348; Dahl v. Raunheim, 132 IT. S. 260, L. Ed. 324; Turner v Sawyer, 150 IT. S. 578, L. Ed. 1189; Hamilton v. Southern Nev. Min. Co., 33 Fed. Rep. 562, 15 Mor. M. R. 314, 318; 2 Lind. Mines, Secs. 742 (note), 777.)
    “A person claiming possession adverse to the locator of a mining claim cannot delay until the patent is. issued, and thenf without attacking the patent, claim by virtue of prior possession. The patent concludes and bars the rights which he has neglected, within the time provided by law, to assent.” (Talbott v. King, 6 Mont. 76, 102-103; Hamilton v. So. Nev. Min. Co., 33 Fed. 526.) Defendant offered in evidence a copy of a letter, dated January 24, 1891, from the commissioner of the general land office to the register and receiver of the local land office, showing the disposition of the conflict referred to in the letter dated October 6, 1890. To this offer plaintiffs, objected, on the ground that it was incompetent, irrelevant and immaterial for any purpose, for the reason that it purports to be a relinquishment on the part of Murray of all of that part of the Railroad lode claim in conflict with the Mary Louise lode claim, which objection was overruled. There was no issue in this case as to any conflict between the Mary Louise and the Railroad lode claims, but the issue was confined strictly to the conflict between plaintiffs and defendant. We submit that this evidence was entirely incompetent and immaterial for any purpose. (1 Jones on Evidence, Secs. 136-140, and authorities cited.)

      Mr. F. T. McBride and Mr. E. N. Harwood, for Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

1. The brief of appellants was filed while the rules of this Court promulgated in 1896 were still in force. Five errors are assigned therein. Three of these assignments are predicated upon rulings upon the admission and rejection of certain evidence. The first and second of them we cannot consider, for the reason that they neither set out the substance of the evidence-upon which the rulings were made, as required by Rule V, Sec. 3, Subd. 2 (16 Mont. 595, 44 Pac. vii), nor refer to the pages and marginal numbers in that portion of the transcript containing the evidence, as required by the rules now in force (Rule X, Sec. 3, Subd. “b,” 22 Mont, xxxiv, 61 Pac. vii). The- third assignment, while not meeting the requirements of the old rule, so far complies with the ' present rule, by references to the transcript, as to enable us to examine the questions raised by it without additional labor. We shall, therefore, waive the defect, which would otherwise be fatal, and treat the brief as if filed under the rule now in force. The remaining two assignments are not referred to in the part of the brief devoted to- the argument. We therefore assume that counsel for appellants considered them without merit.

2. At the trial, plaintiffs rested the case upon the Murray patent, the conveyance from Murray to his co-plaintiff, and evidence of the rental value of the property during its occupation by defendant subsequent to the date of the patent. Thereupon defendant offered evidence of the other facts set forth in the statement. Objection was interposed to all of it on the ground that it was incompetent,» immaterial and irrelevant. When defendant rested, plaintiffs moved the court to strike it all from' the record on the same grounds as those stated in the objection. The specific objection urged was that there was an absence of other evidence showing that an adverse claim or suit had been instituted by Noyes and wife, or defendant, against Murray’s application for a patent; that at the time Murray entered the Railroad claim he had actual notice of the condition of the title to the Placer claim, and that the Home Investment & Realty Company took its interest with notice; and, therefore, that the facts shown by defendant tended in no way to establish a trust in plaintiffs in its favor. Error is assigned upon the action of the court in overruling the objection and motion.

The objection to this evidence goes to its sufficiency, rather than to any legal ground for its exclusion from consideration; for it is assumed tliat, if the evidence which plaintiffs asserted was wanting had been introduced by defendant, it would have been entitled to the relief sought in its counterclaim. And this is undoubtedly a correct assumption, for whenever one person wrongfully obtains title to land which in equity and good conscience belongs to another, whether it be done in good faith or not, he is properly chargeable as trustee for the benefit of such other person. The principle applies to proceedings by which patent is obtained from the United States, as well as to dealings between private individuals; and the courts have readily exercised their equitable powers to control and limit the operation of the patent as between adverse claimants whenever it has been made to appear that by a mistaken application of the law to the facts of the case by the officers of the land department the patent has been issued to the wrong person, or when the holder of the legal title under it has obtained it by a fraud upon the rights of one who is entitled to it. (Meyendorf v. Frohner, 3 Mont. p. 322; Hermocilla v. Hubbell, 89 Cal. 5, 26 Pac. 611; South End Mining Co. v. Tinney, 22 Nev. 27, 35 Pac. 89 ; Bernier v. Bernier, 147 U. S. 242, 13 Sup. Ct. 244, 37 L. Ed. 152 ; Lindsey v. Hawes, 2 Black 554, 17 L. Ed. 265; Cornelius v. Kessel, 128 U. S. 456, 9 Sup. Ct. 122, 32 L. Ed. 482; and casea cited in Power v. Sla, 24 Mont. 243, 61 Pac. 468.) The party claiming to be the rightful owner must show, of course, that he stood in such a relation to the government at the time tire patent was issued that he was entitled to demand it; but, when this has been made to appear, the mere fact that the patent has been issued to another in no way impairs his right to be declared the owner.

The evidence sought to be excluded by the objection was clearly admissible as tending to show that the defendant was entitled to the relief demanded. That it fell short (if sudi were the fact) of establishing all the facts necessary to justify the trial court in granting this relief is no reason why it should have been excluded in the first place, or stricken from the record at the close of defendant’s case. From the point of view of plaintiffs, the proper method of attaining the end sought by the objection and motion, viz., the exclusion from consideration by the court and jury of the evidence introduced by the defendant, on the ground that it was insufficient because of its failure in the particular mentioned, — would have been, we think, to request the court to direct a verdict for the plaintiffs upon the main issue, and to submit to the jury the question of damages only. However this may be from any view, the rulings were correct.

It was not necessary for the defendant to show that Noyes and wife, or defendant, had prosecuted successfully adverse proceedings against Murray’s application for patent. Noyes and wife had already gone through all the regular proceedings to obtain a patent, and had received a certificate of jourchase. This was evidence that they had complied with all the conditions prescribed by law, and that they had acquired a vested interest in tire land embraced in the Placer claim. The public faith was thus pledged to them, as well as their grantees, and thereafter the officers of the land department had no right to convey to any one else, so long as the certificate was outstanding. (Lindley on Mines, Sec. 771; Wirth v. Branson, 98 U. S. 118, 25 L. Ed. 86.) The lands covered by the certificate immediately upon its issuance became segregated from the mass of public lands, and were not subject to entry by any one else. The right to the patent thus became vested in Noyes and wife, and thereafter the title stood as if the patent had already issued. The mere delay in its issuance did not subject them, or their grantees, to additional burdens, or expose them to assaults of third parties. (Benson Mining & Smelting Go. v. Alta Mining and Smelting Co., 145 U. S. 428, 12 Sup. Ct. 877, 36 L. Ed. 762; Stark v. Starrs, 6 Wall. 402, 18 L. Ed. 925; also authorities last cited.) Neither their rights nor those of the grantees were affected by proceedings in the land department, in which it appears they took no part.

Conceding, for the sake of argument, that, in the absence of evidence showing that Murray had notice of the rights of Noyes and wife at the time his patent to the Bailroad lode claim was issued, his title to the portion embraced in the conflict would be good as against the claim of defendant, the rulings of the court below were correct. Under the facts, as shown by the evidence, it cannot be urged that he had no notice of the existence of defendant’s rights. The plaintiff Murray took part iu the proceedings had under the order of the commissioner of August 21, 1889; lie therefore had personal knowledge of Noyes’ title. Furthermore, the records of Silver Bow county showed that Noyes and wife had parted with their rights to defendant. He resorted to these records for the evidence upon which he relied to obtain his patent. The abstract obtained from these records and presented to the land department was intended to show that the Casey and Warren relinquishment of the Noyes title — without which he could not obtain a patent ■ — was authorized. Having relied upon what was disclosed by the records touching the condition of the Noyes title, he was bound by whatever they disclosed, and must be presumed to have had notice of their contents. Though he claims under the patent, he virtually occupies the position of <a junior grantee of the Noyes title, for the patent would not have issued but for the fact that the commissioner of the land department was led to believe that this title was properly reconveyed to the United,, States under the alleged relinquishment by Casey and Warren.

Conceding, again, that the Home Investment & Kealty Company’s title is superior to that of the defendant, in the absence of actual notice of defendant’s equities at the time it took from Murray, it stands in no position ,to complain of the rulings in question. No question was raised here as to the sufficiency of the evidence, or a want of evidence, to sustain the findings, nor that the findings do not support the judgment. So far as. a consideration of this feature of the case is concerned, this plaintiff can obtain no relief. And, even though the evidence objected to should properly have been excluded or stricken out at the instance of this plaintiff, the ruling of the court below was nevertbeless correct. Tbe purpose of the objection and motion was to exclude it altogether from the consideration of the court and jury. To have done this would have been error, for, as we have seen, Murray had no right to complain and the exclusion of the evidence would have prejudiced defendant’s rights as against him. The objection and motion were too broad.

Let the judgment and order appealed from be affirmed.

Affirmed.

Mr. Justice Milburn, not having heard the argument, takes no part in this decision.


author: MR JUSTICE PIGOTT

text:
    MONTANA ORE PURCHASING CO. et al., Plaintiffs, v. LINDSAY, JUDGE, Defendant.
    (No. 1,639.)
    (Submitted January 16, 1901.
    Decided January 28, 1901.)

      Bill of Exceptions — Compelling Judge to Settle and Sign after . Term of Office — Statutory Construction — Mandamus—Application.

    1. In those cases where the public or persons possess tne right to require that the power conferred in a statute by the word “may” be exercised, the word is imperative and mandatory, being the equivalent of “shall” or “must.”
    2. Under Code of Civil Procedure, Sec. 1158, which provides that a judge “may” settle and sign a bill of exceptions after, he ceases to be a judge, he may be compelled to do so.
    3. The duty which the writ of marídate may compel to oe performed must be ministerial.
    4. Mandamus will not lie upon application of the prevailing party to compel a judge to amend, — by incorporating therein particular matters, a bill of exceptions tendered by the defeated party, this being the exercise of a judicial, and not a ministerial duty.
    -5. The writ of mandate will not be made to serve the office of a supervisory control writ.
    3. A settled and certified- hill of- exceptions imports verity; presumtively, the judge included therein everything that it should contain.
    7. It is essential that the party, making application to compel a judge to amend a bill of exceptions, allege and show, not only that the matte’rs set out in bis proposed amendment are material, but also there was no evidence or proceeding, other than that contained in the settled bill and the proposed amendment, which is necessary to explain the exceptions.
    Peremptory mandamus by tbe Montana Oie Purchasing Company and others against John Lindsay, as Judge of the Second Judicial District Court of the State of Montana. Motion to quash alternative writ granted, and demurrer to application for peremptory writ sustained.

      Messrs. HcHatton & Cotter, for Plaintiffs.

      Messrs. Forbis & Evans, for Defendant.
   MR JUSTICE PIGOTT

delivered the opinion of the Court.

Mandamus. The object of this proceeding is to obtain a peremptory writ commanding John Lindsay, Esquire, late one of . the judges of the district court of Silver Bow county, to amend a bill of exceptions settled and signed by him while judge. Eor the purposes of the present motion and demurrer the allegations of the affidavit filed in support of the application must be taken as true. Succinctly stated the facts are these: In an action between the Boston and Montana Consolidated Copper and Silver Mining Company and the relators or plaintiffs herein, rvhich was pending in the court over which Judge Lindsay presided, an order was made refusing to grant a temporary injunction prayed for by the plaintiff therein. To a proposed bill of exceptions tendered by the plaintiff in that action, the relators herein (in whose favor the order denying an injunction had been made) offered an amendment truly setting out certain material evidence received at the hearing but which was omitted from the bill as proposed. Upon the presentation of the proposed bill and amendment for settlement, Judge Lindsay admitted that the matters recited in the amendment as having been introduced in evidence had been received at the hearing, but nevertheless refused to allow it or permit it to be inserted in the bill, saying that lie did not care to do so. He settled and signed the bill, the matter sought to be incorporated by the amendment offered nowhere appearing therein. An alternative writ of mandate was issued on the 4th day of January, 1901, and on the following day was served. Judge Lindsay’s term of office expired with the 6th day of January, 1901, and he is no longer judge. He moves the quashal of the alternative writ and demurs to the application.

1. Counsel for the defendant insist that he cannot be compelled to act with reference to a bill of exceptions after his term of office as judge has expired. ' Whatever doubt may exist with respect to the question when tested by the rule of the comnion law, it is quite evident that in this state the statute makes it the duty of the person who as judge tried the cause or rendered the decision, to settle and sign a bill of exceptions after as well as before he ceases to be judge. Among the provisions of Section 1158 of the Code of Civil Procedure is the following: “A judge or judicial officer may settle and sign a bill of exceptions after as well as before he ceases to be such judge or judicial officer.” The duty to settle and sign, when duly requested to do so, a bill which will preserve all the evidence and proceedings, whether in favor of or against either party,' necessary to explain the exceptions, is imposed upon Mm, though he has ceased to be judge. The authority to settle and sign a bill of exceptions which he might have settled and signed while he was judge continues to exist, and the correlative duty attends and inheres in him until performed. It is argued that since the respondent is no longer the judge he now holds no office, trust or station, wherefore there is no duty enjoined upon him -which can be said to result therefrom; and it is contended that, while the part of section 1158 which has been quoted permits a judge to settle and sign a bill after he ceases to be such officer, it does not enjoin such settlement and signing upon him as a duty. The cases of Leach v. Aitken, 91 Cal. 484, 28 Pac. 777, and State ex rel. Hinchey v. Allyn, 7 Wash. 285, 34 Pac. 914, fully support the position of the defendant. We shall not follow them, however, for they seem to be based upon a misconception of the force of the word “may” in the statute quoted. This word is sometimes permissive only; sometimes it is imperative. Legislative intent determines whether it is directory or mandatory. According to its natural and usual signification, the word “may” is enabling and permissive only, and so it must be interpreted where no right of or benefit to the public, nor right of persons other than the one upon whom the permission is conferred, depends upon giving to it the obligatory meaning; but the word is interpreted to mean “shall” or “must” whenever the rights of the public or of third persons depend upon tbe exercise of the power or performance of the duty to which in refers. In those cases where the public or persons possess the right to require that the power conferred by the word “may” be exercised, the word is imperative and mandatory, being the equivalent of “shall” or “must.” (Blake v. Portsmouth & Concord Railroad Co., 39 N. H. 435; Tarver v. Commissioners’ Court, 17 Ala. 527; Regina v. Adamson, 1 Q. B. Div. 201; Sutherland on Statutory Construction, Sec. 462, p. 597; Endlich on Interpretation of Statutes, Sec. 306 et seq. And see First National Bank of Helena v. Neill, 13 Mont. 377, 34 Pac. 180, and Stackpole v. Hallahan, 16 Mont. 40, 40 Pac. 80.) The provision authorizing judges to settle and sign bills of exceptions after they cease to be judges, continues them in an office or station for the purpose indicated. The provision was enacted for the benefit of third persons and to preserve their rights. Every defeated litigant has under the law the right to have settled and signed in the due and orderly course of procedure his bill of exceptions, and each litigant who prevails has likewise the right to demand that the bill containing the exceptions of his adversary shall embrace every matter essential to the fair presentation of the exceptions relied upon by the defeated party. If the writ of mandate lies at the instance of the prevailing party to compel the judge who is still in office to correct or amend a bill already signed by him, it lies also to compel the judge who tried the cause to correct or amend the bill after he has ceased to hold the office. This brings us to the next question.

2. Does mandamus lie upon application of tlie prevailing party to coniiiel the judge to correct or amend a bill of exceptions tendered by his adversary? We observe, in passing, that Section 1157 of the Code of Civil Procedure has no application to any question arising in this proceeding; nor is section 1158 relevant to the question now under consideration. While in the proper case the writ of mandate may be issued to compel a judge to settle and sign a bill seasonably served and duly presented, the writ will not be issued to compel him to incorporate into the bill particular matters. The questions of what occurred at the trial and what evidence or proceedings are necessary to explain or -illustrate the exceptions are judicial in their nature, and are to be finally determined, at least in so far as the remedy by mandamus is concerned, by the judge or officer whose duty'it is to settle the bill. It is his duty in settling the bill or the statement on motion for a new trial to strike out of it all redundant and useless matter, and to make it truly represent the case, notwithstanding the assent of the parties to the incorporation of such redundant and useless matter or of any inaccurate statement. This common-law duty is recognized and declared in Sections 1153 and 1173 of the Code of Civil Procedure. The writ of mandate may issue to compel the performance of an act which the law specially enjoins as a duty resulting from an office, trust, or station; it lies to coerce into activity, but not to direct the making of a particular decision or ruling upon a question involving the exercise of discretion or judgment. The duty which the writ may compel to be performed must be ministerial. (State ex rel. Independent Pub. Co. v. Smith, Judge, 23 Mont. 329, 58 Pac. 867.) The performance here sought to be enforced is of a judicial duty. Raleigh v. District Court, 24 Mont. 306, 61 Pac. 991, is not inconsistent with the views expressed in this proceeding. Mandamus is not the remedy.

We do not decide whether, upon the proper showing, the issuance of a writ of supervisory control would be warranted under the provisions of Section 2 of Article VIII of the Constitution of Montana, as interpreted in State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395. In the present proceeding an alternative writ of mandate ivas issued upon an application therefor, and the writ of mandate will not be diverted from its functions and made to serve the office of a supervisory control writ; such is the ruling announced in the case last cited, and now affirmed. The motion to quash will be granted.

3. The defendant contends also that the application for the writ is further insufficient because it does not state that the proposed amendment, when read with the bill, recites all proceedings had upon the hearing which are material to the matter contained in the proposed amendment. The bill which the plaintiffs seek to have corrected was settled and certified, It imports verity. Presumptively the judge in settling the bill included therein everything that it should contain; to rebut this presumption (if in some appropriate proceeding it be rebuttable) it is essential that the plaintiffs allege and show not only that the matters set out in the proposed amendment are material, but also that there Avas no evidence or proceeding, other than that contained in the settled bill and the proposed amendment, Avhich is necessary to illustrate or explain the exceptions. The demurrer also must be sustained.

The motion to quash the alternative Avrit of mandate is granted, the demurrer to the application is sustained, and the proceeding is dismissed. Let judgment be entered accordingly.

Dismissed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    CONKLIN, Appellant, v. CULLEN, Respondent.
    (No. 1,616.)
    (Submitted January 18, 1901.
    Decided January 30, 1901.)
    ON MOTION TO DISMISS APPEAL.

      Appeal — Defective Brief— Dismissal.-

    An appeal will be dismissed where the statement of the case in appellant’s brief fails to comply with the requirement of Subdivision “a” of Section 3 of Rule X of the Supreme Court.

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

    Action by S. L. Conklin against W. E. Cullen.' Erom a judgment in favor of defendant, plaintiff appeals.
    Appeal dismissed.

      Mr. Albert I. Loeb, for Appellant.

      Messrs. Cullen, Day & Cullen, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of the Court.

The respondent has moved for a dismissal of the appeal herein on the ground that the brief filed by appellant, besides being-defective in other respects, fails to comply with the -requirement of Subdivision “a” of Section 3 of Rule X of this Court, in that the abstract or statement of the case does not refer “to the page numbers in the transcript in such manner that the pleadings, evidence, orders and judgment may be easily found.” The motion must be sustained. The statement covers five printed pages, but there is nothing therein to indicate, even indirectly, where in the transcript the complaint, answer, findings, and judgment, or any of them, may be found, though a reference to them is necessary to an examination of the merits of the appeal. This Court is left to undertake the labor which counsel should have done, and to remedy the defects occasioned by his omissions. Appellant is thus convicted of a violation of the rule in question, and is subject to the penalty of having his appeal dismissed, Avhich is accordingly done. (Smith v. Denniff, 23 Mont. 65, 57 Pac. 557; McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227; Rehberg v. Greiser, 24 Mont. 487, 63 Pac. 41.) This penalty is the more readily imposed because, though counsel for appellant has. had ample opportunity since the motion was filed to remedy the defects complained of, he has not seen fit to do so. (Rehberg v. Greiser, supra.)

Motion granted, without prejudice to any right of the appellant to take another appeal.


text:
    STATE ex rel. MOORE, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,647.)
    (Submitted January 30, 1901.
    Decided January 30, 1901.)

      Supreme Court — Writ of Supervisory Control.

    Under Constitution, Art. VIII, Sec. 2, giving tbe Supreme Court a general supervisory control over all inferior courts, a writ of supervisory control will not be granted to command a district court to sustain a motion for judgment on tbe pleaumgs, since tbe party has a remedy if be should finally be defeated in tbe action.
    Application for a writ of supervisory control by the State, on relation of Donald Moore, against the Second Judicial District Court for the County of Silver Bow and William Clancy, Judge.
    Dismissed.

      Mr. J. E. Healy, for Relator.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The plaintiff applies for a writ of supervisory control. His application discloses that in an action between the present relator, or plaintiff, as plaintiff, and one James A. Murray, one Janies Cummings, and one T. J. McKenzie as defendants, the plaintiff moved the court in which the action is pending for a judgment on the pleadings, the pleadings consisting of the complaint and the separate answer of Murray, his, co-defendants having made default. The motion was denied. By the present application, the plaintiff seeks to obtain a writ of supervisory control commanding the district court and its judge to sustain the motion and render judgment in favor of the plaintiff and against Murray.

The application must he denied and the proceeding dismissed. The facts alleged in support of the application are insufficient to justify the issuance of the writ asked for. If the order of the district court overruling the motion for judgment on the pleadings be erroneous and the plaintiff should be finally defeated in the action, the law prescribes the method whereby, at the proper time, the error (if not cured by amendment or otherwise in the trial court) may be corrected and the rights of the plaintiff protected. The matters stated in the application do not invoke the exercise by this Court of the power of a “general supervisory control over all inferior courts” granted to it by Section 2 of Article VIII of the Constitution. As giving countenance to the application, which the plaintiff asks be entertained under the authority conferred by Section 2. supra, counsel cites State ex rel. Whiteside v. First Judicial Dist. Court, 24 Mont. 539, 63 Pac. 395, and Montana Ore Purchasing Co. et al. v. Lindsay, Judge, 25 Mont. 24, 63 Pac. 715 ; but nothing that was said or decided in either case can reasonably be interpreted as suggesting that a wit of supervisory control ought to be issued under the circumstances here shown to exist. The application is plainly so devoid of even the semblance of merit that its further consideration is needless.

The application is denied, and the proceeding is dismissed.

Dismissed.

Re-hearing denied, February 4, 1901.