text:
    COLLIER, Respondent, v. FITZPATRICK, Appellant.
    [No. 1,300.]
    (Submitted May 5, 1899.
    Decided May 22, 1899.]

      Trial — Setting Case — Rules of Court — Notice to Attorney«— Excusable Neglect— Vacating Judgment.

    1. A District Court Rule which provides that: “When the calendar is called and causes are set for trial the clerk shall Immediately thereafter notify the attorneys interested therein, unless they are present at the time of the call of the setting of such causes for trial. Such notice may be given by postal card mailed to such attorneys at their usual address,” applies to attorneys residing at the county seat as well as those residing elsewhere.
    ■2. The design and purpose of Sec. 774, Code of Civil Procedure is to further the administration of justice so that the very right upon the merits may be determined, and to that end to grant relief, from excusable neglect, in cases meeting the requirements of the section.
    3. A case which was at issue was placed upon the trial calendar used by the court, but did not appear in the printed calendar furnished as a matter of courtesy by the clerk to attorneys. The attorney of record for defendant was not present at the call of the calendar, but his partner, though not an attorney in the case, was present to set other cases of the defendant’s attorney. The partner did not know’ about the case,' and it was set for trial without the knowledge of either of them, and on the day set was tried without defendant being represented. The attorney for defendant, because of the nonappearance of said case in the printed calendar furnished by the clerk,, believed that such case was not for trial at that term. The clerk tdid not notify defendant’s attorney of the setting of the case, and on the day of trial he was absent although his partner was present, and did not object. The defendant next day presented an affidavit of merits, and moved to set aside the judgment. Held: That defendant’s attorney was guilty of neglect, but that in view of the failure of the clerk to notify him of the setting of the case for trial, as he was required to do by the rules of the court, the neglect of said attorney was not so gross as to be inexcusable, and that the defendant is entitled to have the judgment vacated upon payment of costs.

      Appeal from, District Court, Deer Lodge County; Theo-BrantT/y, Judge.

    Action brought by Anna Collier against John Fitzpatrick. From a judgment in favor of plaintiff, and from an order refusing to vacate a judgment, defendant appealed.
    Reversed-

      T C Leary, for Appellant.

      Sawyer da Walsh, for Respondent.
   PIGOTT, J.

Defendant appeals from a judgment of the District Court of Deer Lodge county, entered on the 17th day of May, 1898; and also from an order of that court entered May 24, 1898, denying his motion to vacate said judgment. The action was brought to recover possession of certain personal property, together with damages for its detention. The first trial resulted in a judgment for defendant, but upon appeal by plaintiff to this Court a new trial was directed of the-issue touching the ownership of certain of the property. (Collier v. Fitzpatrick, 19 Mont. 562, 48 Pac. 1103.) The remittitur was filed by the clerk of the court below on November 22, 1897. On May 16, 1898, in the absence of defendant and his counsel, the court tried the case without a jury,, and found for the plaintiff; and on the day following judgment was entered accordingly. On May 18, 1898, one day after the entry of judgment, defendant served notice of motion to set aside the judgment on the ground that he had no notice of the setting of the action for trial, and upon the further ground that the judgment was taken against him through his mistake, inadvertence, surprise and excusable neglect. On May 23, 1898, the court heard the motion, and on May 24th denied it.

The material facts shown are the following: On April 8, 1898, the attorneys for the plaintiff procured an order from the District Court by which the case was placed upon the trial calendar and thereafter, about the 30th day of the same months gave notice to the clerk, in accordance with a rule of court, that plaintiff desired the case noted for a jury trial at the ensuing term, beginning May 2, 1898. The case was placed upon the trial calendar prepared for the use of the court, in which appeared the titles of all causes at issue prior to the first day of the May term. Although this was the only official calendar, the clerk, at the request of the members of the bar, and for their use and convenience, prepared and issued a printed calendar, upon which Collier v. Fitzpatrick did not appear. This printed calendar was' not prepared or distributed under any order or rule of court. T. O’Leary, Esq., =was-the attorney of record for the defendant, and was also city attorney and clerk of Anaconda, the county seat, in which city he resided. He was not present at the calling of the calendar, had not received any notice from the clerk or from any other source that the case had been set for trial, and such setting was wholly unknown to him. At the time the calendar was called and the cases set down for trial, he was engaged as city clerk, in attendance upon the city council; May 2d being the day on which the council elect assumed office, and the outgoing council accounted to and settled with its successor. B. F. Maiden, Esq., was Mr. O’Leary’s partner, and had been since January 1, 1898; but Mr. Maiden was not an attorney in Collier v. Fitzpatrick. At Mr. O’Leary’s request, and for the-purpose of having the cases in which he or the firm was interested set for trial or otherwise disposed of, Mr. Maiden attended the court, and was present when the calendar was called, and appeared and represented Mr. O’Leary in four cases which were then set for trial. The titles of these four cases were printed in the unofficial calendar issued by the clerk, and this calendar was the one upon which both Mr. O’Leary and Mr. Maiden relied for information touching the eases which were for trial at the May term. Immediately prior to the calling of the calendar on May 2d the judge announced in open court that all causes at issue would be set for trial unless continued. When the case at bar was reached in regular order, it was called for by its title, and the court, at ■the instance of counsel for the plaintiff, set it for trial on May 16th, at 9:30 in the forenoon, and the order to that effect was entered in the journal, and was read and approved the next day in open court. Mr. Maiden made notations on the unofficial printed calendar opposite the titles of the four cases of the dates when they were to be tried. He had no knowledge whatever of Collier v. Fitzpatrick, and had no information that Mr. O’Leary was attorney therein, and the case had never been mentioned in the office of O’Leary & Maiden since the formation of their partnership; indeed, he swears that he ■did hot know that there was such a case. Upon Mr. Maiden’s return to the office of his firm, he advised Mr. O’Leary of the setting of the cases in which he was interested as shown by the printed calendar, and Mr. O’Leary himself looked at the calendar in which the annotations had been made by Mr. Maiden, and believed that no cases in which he was interested and not appearing on the printed calendar were to be tried. Mr. O’Leary remained in Anaconda from the 2d to the 12th of May, when he went to Helena on urgent private affairs, attention to which could not be postponed. He remained in Helena until the evening of May 16th. He then returned to Anaconda, and discovered that the case had been tried in his absence, and without any appearance by defendant, or by any •one for him, at the hearing. As has been stated, Mr. O’Leary had received no notice of any kind that the case had been set for trial, ■ nor did the clerk comply with the command of rule 31 of the District Court, which rule is as follows: “When the calendar is called and causes are set for trial the clerk shall immediately thereafter notify the attorneys interested therein, unless they are present at the time of the call, of the setting of such causes for trial. Such notice may be given by postal card mailed to such attorneys at their usual address.5' The defendant was also without knowledge or information with respect to the setting of the case for trial. The answer presents facts sufficient to constitute a defense, and Mr. O’Leary states in his affidavit that he is fully advised as to the facts in issue, and of the law appertaining thereto, and believes and avers that defendant has a good and proper legal defense to the action, and that if he had known that the case was set for trial on May 2d, he would have been present thereat. The defendant likewise deposes that he is fully informed as to the facts in the case, and believes and avers that defendant has a good and sufficient legal defense to the action and that he has fully and fairly stated the facts to his counsel, and has been informed by counsel that defendant has a substantial defense on the merits. It further appears that the case was not called for trial until 10:45 o’clock in the forenoon of May 16th, and that when the trial began Mr. Maiden was present in court, and made no objection thereto.

The Court may, in its discretion in furtherance of justice, and upon terms, relieve a party from a judgment taken against him through his excusable neglect. (Code of Civil Procedure, Sec. 774.) That Mr. O’Leary was guilty of neglect in relying upon the unofficial printed calendar, and in failing to advise Mr. Maiden that he was an attorney in the case of Collier v. Fitzpatrick, and that the case was at issue, and might be called for trial, is apparent from the foregoing statement of facts disclosed by the bill of exceptions. We are of the opinion, however, that in view of the provisions of rule 31, quoted, the neglect was not so gross as to be inexcusable. He should not have trusted to the unofficial printed calendar, but it seems evident that he did believe — and not wholly without reason — that such printed calendar issued by the clerk on the eve of the meeting of court contained a list of all the civil cases to be tried at that term. The order setting the case for trial was made in the absence of Mr. O’Leary, and, although Mr. Maiden was authorized to represent Mr. O’Leary at the call on May 2d, yet he did not know that Mr. O’Leary had any professional connection whatever with it. We think that under the circumstances Mr. O’Leary might, without being inexcusably neglectful, indulge the presumption that the clerk would, in obedience to rule 31, notify him if, in his absence, the case were set for trial. Affidavits were submitted containing the statement that the rule mentioned applied, and was understood to apply, only to attorneys residing elsewhere than at the county seat, and the learned judge of the District Court, upon the assumption, doubtless, that such construction was correct, refused to set aside the judgment. The rule is general, and in plain terms requires notice to be given to all attorneys interested, witout distinguishing those living at the county seat from others.

Each case in which the court is asked to set aside a judgment upon the ground of excusable neglect in the moving party must be decided upon its own facts. The design and purpose of the statute is to further the administration of justice so that the very right upon the merits may be deter,: mined, and to that end to grant relief from excusable neglect in cases where diligence is shown in applying promptly for the relief sought, provided the opposite party be not deprived of any advantage to which he may properly be entitled. The defendant should have been afforded, upon terms, the right -of trial. The plaintiff is without fault, and the defendant must, as a condition precedent to relief, reimburse the plaintiff for his outlay.

The order of May 24, 1898, denying the motion to vacate the judgment, is reversed, with costs to plaintiff, and the cause is remanded, with the following directions: Upon payment by defendant within 20 days into the court below of all costs of the plaintiff incurred in that court since November 22, 1897, and of all costs of plaintiff upon this appeal, the District Court will enter an order granting defendant’s motion to vacate the judgment; and in default of such payment within 20 days from and after the filing of the remittitur the District •Court will enter an order denying said motion.

Reversed and remanded.

Hunt, J., concurs. Brantly, C. J., disqualified.


source: Caselaw Access Project

author: HUNT, J.

license: Public Domain

text:
    STATE, Respondent, v. SHADWELL, Appellant.
    [No. 1,356.]
    [Submitted May 2, 1899.
    Decided May 26, 1899.]

      Criminal Law — Bill of Exceptions■ — Evidence—Homicide— Character of Accused — Previous Threats — Inst?'uctions— Witnesses— Credibility — Appeal—Reversible Error• — Defects in Information— Wai/oer.

    1. Under Section 2194 of tlie Penal Code, no independent specification of errors is required other than a bill of exceptions, yet, if the defendant does incorporate in his proposed bill of exceptions on motion for a new trial a specific enumeration of errors in law alleged to have been made by the court during the course of the trial, with a statement that “defendant duly excepted at the time,” and the judge settles, allows and signs as correct the bill of exceptions containing said enumeration of errors and statement; such action of the judge makes the said enumeration of errors and statement a part of the bill of exceptions in the case, and thereby imparts a verity to such statements which cannot be impugned by counsel for the State in oral argument on the hearing of the appeal, particularly where counsel for defendant announces that he stands upon the record, and counsel for the State had had full opportunity, before the Dill was settled, to correct the record so as to make it conform to the facts.

      Obiter. — The judge of the trial court should not allow a bill of exceptions, misstating the facts, to come to the Supreme Court.
    •2. On an appeal by a defendant convicted of murder in"the first degree, a manifest clerical misprision in the bill of exceptions will be ignored.
    3. Where, on a trial for murder, it is shown that at the moment accused killed deceased the latter had him against the wall of a saloon, and was pushing a table against him, evidence of previous threats of violence made towards accused by deceased is admissible to enable the jury to ascertain whether accused was prompted by malice or believed he was in danger of great bodily harm. .
    4. On a trial for murder, evidence as to deceased’s conduct towards others in the presence of accused just prior to the killing is admissible.
    5. Evidence, on a trial for murder, that it was a custom of accused, when gambling, to leave the table and go out. to rebut the theory of the prosecution that the accused left to procure a pistol, is properly excluded, where accused had explained his purpose in going out.
    G. On a trial for murder, a witness’ personal observations of specific acts of violence towards third persons are inadmissible to prove the general reputation of deceased for quarrelsomeness.
    7. On a trial for murder, it is not reversible error that the court divided its instructions into two sections, and read them separately, unless they were conflicting, though the better practice is to read all the instructions on one branch of the case consecutively.
    8. An instruction, on a trial for murder, that if the act of killing was preceded by a concurrence of will, deliberation and premeditation of the slayer, it was murder in the first degree, no matter how rapidly such acts of the mind may have succeeded each other, or how quickly they were followed by the act of killing, is misleading, in affording the jury an opportunity to accept it as a complete definition of murder.
    ■9. On a trial for murder, it is permissible, on cross-examination, to ask a witness to whom he paid rent, to identify him and test his credibility.
    10. Defects in the information are waived if the objections are not urged at the proper time.

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

    Gr. R. Shadwell was convicted of murder, and appeals from the judgment and an order denying his motion for a new trial.
    Reversed.
    . B. S. Thresher and Hamilton ds Thresher, for Appellant.

      C. B. Nolan, Attorney General, and C. P. Connolly, for the State.
   HUNT, J.

Robert Shadwell, by appeal to this Court from a judgment and order denying his motion for a new trial, seek's to obtain a review of a sentence of death for the murder of Martin J. O’Connor in Butte on January 11, 1898.

1. From the 20 errors urged by his counsel we have selected, as entitled to first consideration, the striking out of certain testimony introduced by the defendant, as shown by the following extracts from the bill of exceptions: “That, after . the evidence had all been introduced in said cause, and both the plaintiff and defendant announced that they had no-more evidence to offer, said cause was by counsel for the State- and for the defendant argued to the jury. That during the-argument of the county attorney to the jury, and at a point in his argument where he referred to the evidence of the witness Bugliss and the evidence of the defendant- relative to the transaction which took place at the game of cards on or about, the evening of the 9th.of January, 1898, wherein some trouble-arose between the defendant and the deceased, O’Connor, relative to the cutting of the cards preparatory to a deal, the county attorney was interrupted by the court, and was told, by-the court to not refer to any part of the evidence relative-to the alleged trouble between the defendant and the deceased on or about the 9th of January, 1898; that all of said evidence was irrelevant, and had by the court been stricken out; that, no evidence should be considered by the jury of any game of cards between the defendant and the deceased, or any trouble-. between the deceased and the defendant prior to the game of cards in which or at which the defendant fired the shot that resulted in the death of the deceased, O’Connor. The court further stated orally to the jury: ‘And, gentlemen of the jury, you are instructed that all such evidence, if there has been any, has been stricken out, and you are now instructed to disregard any evidence of any of the witnesses relative to any prior transaction or occurrence between the defendant and the deceased, O’Connor. And you are further instructed to pay no attention to any remarks or comments of counsel upon such evidence.’ ”

Further on in the record we find the following: “And now, upon this 18th day of July, 1898, comes the defendant, and serves and files his proposed bill of exceptions on motion for a new trial, and asks that the same be signed, settled and allowed as true and correct, and as containing all the evidence introduced upon the trial of said cause, and all the proceedings had in said cause before this court; and said defendant in such proposed bill of exceptions makes the following assignment of errors in rulings by the court during the progress of such trial, to which rulings of the court the defendant duly excepted at the time. ’ ’

An “assignment of errors” then follows, in which are enumerated various objections to the court’s rulings upon testimony, as shown throughout that portion of the bill of exceptions containing the evidence produced on the trial. Included, also, in this “assignment” is a specification, numbered 20, setting forth that it was error for the court ‘ ‘to state, during the argument of the county attorney to the jury, that all of the evidence of the witness Buglis and the defendant relative to the trouble which took place between the deceased, O’Con-nor, and the defendant, on or about the night of June 9, 1898, was irrelevant and immaterial, and that the same had been by the court stricken out, and to instruct the jury orally that such evidence had been stricken out, and that they should not consider the same, or the argument of counsel relative to such evidence. ’ ’

Counsel for the State argue that defendant cannot avail himself of this error because the record fails to disclose that any objection was made to the action of the court in withdrawing the evidence referred to in the judge’s statement to the jury, or that an exception was taken to the action of the court at the time the evidence was so stricken out. But, notwithstanding the silence of that part of the record which states the ruling of the court in withdrawing the testimony, it does elsewhere appear, by the record as above set forth, that, after notice of intention to move for a new trial was served, defendant filed and served his ‘ ‘proposed bill of exceptions on motion for a new trial, ’ ’ purporting to contain, among other things, ‘ ‘all the proceedings had in said cause before the court, ’ ’ in which proposed bill of exceptions the defendant made the particular assignment of error numbered 20, supra, predicated upon the particular ruling of the court referred to in said assignment No. 20, and stating that to the ruling of the court “the defendant duly excepted at the time. ’ ’ This proposed bill of exceptions, together with certain amendments proposed by the State, was submitted to the judge for settlement on October 8, 1898, and on November 18th thereafter, “in the presence of and by the consent of counsel for both the plaintiff and the defendant,” asa bill of exceptions it was “settled, allowed and signed as true and correct” by Judge Clancy, the judge who tried the cause. Under this condition of the record we' are constrained to hold that the judge, in settling and allowing the bill of exceptions as proposed, and in certifying to its correctness, certified that to his ruling in withdrawing from the consideration of the jury the evidence specified in assignment No. 20, defendant “duly excepted at the time. ” Wherefore it becomes our duty to consider the ruling, and its effect upon the substantial rights of the accused.

While no independent specification of errors is required, under the Penal Code (Section 2194), other than a bill of exceptions, yet, if the defendant does incorporate in his proposed bill a specific enumeration of errors alleged to have been made by the court below in decisions upon questions of law arising in the course of the trial of the case, so far as the allegations go, the office of such enumeration is merely to inform the State of the points intended to be relied on by defendant more fully than it has been notified by the original general designation contained in the notice of intention to move for a new trial; and where the judge settles and allows as correct the bill of exceptions containing such enumerated errors, and certifies that to a ruling withdrawing certain evidence, specified as error in the enumerations, the defendant duly excepted at the time, we must hold that the exception is preserved.

In Territory v. McClin, 1 Mont. 394, on appeal from the judgment and bill of exceptions, the Court said: “It is contended by respondent that the record does not disclose the fact that any proper exceptions were taken at the trial to the rulings of the court upon the introduction of evidence, or to the charge of the court to the jury. This is an appeal from the judgment roll, and the bill of exceptions is properly before the court for consideration. The bill of exceptions corn-menses as follows: ‘Now comes the defendant, by his attorneys, and tenders the following bill of exceptions, which were taken at the proper time and allowed. ’ W e think these words form a part of the bill of exceptions, and, the bill being signed by the judge as correct, we must hold that to any ruling of the court, objected to at the time as disclosed by the bill of exceptions, proper exceptions were taken at the time and allowed. This is the plain import and meaning of the language employed.”

Holding, then, as we must, that the action of the judge made the proposed bill of exceptions and its enumeration of errors the bill of exceptions in the case, it follows that verity is imported by the bill, and that defendant was allowed his exception to the point involved. (State v. O'Brien, 18 Mont. 1, 43 Pac. 1091, and 44 Pac. 399.), It also follows that we cannot ignore the record by acting upon the statement of counsel for the State, made during the oral argument, to the effect that defendant’s counsel seeks to take advantage of a ruling not objected to on the trial, particularly where counsel for defendant announced that he stands upon the record, and upon its conclusive disclosure that an exception was duly taken to the ruling complained of at the time of the court’s action. Furthermore, if, as a fact, there was no. exception ‘ ‘duly taken at the time, ’ ’ full opportunity to correct' the record, so as to make it conformable to the facts, was given after the proposed bill of exceptions was served upon the county attorney, and during the time wherein he could propose amendments thereto, and before the bill was settled. Again, if the bill of exceptions misstated the facts, the judge of the District Court should not have allowed it to come to us in the condition it has. More than once has it been laid down that this Court is obliged to examine and consider the bill of exceptions as it has been transmitted from the District Court, and to credit it with being correct. (State v. O'Brien, supra, and cases therein cited.) We believe, therefore, that it is our duty to pass upon the point of the exception.

In connection with the taking of this exception, our attention is called to the fact that the specified error quoted above pertains to the exclusion of evidence respecting an occurrence of June 9, 1898, whereas the ruling excluded the evidence of an occurrence of January 9, 1898. But, as it is conceded that there was no evidence at all relating to any occurrence had on June 9th, while there was evidenc.e respecting one which happened on January 9th, manifestly the writing of “June" for “January" was a simple clerical misprision, on account of which it would be a fearful injustice for the court to deny to the prisoner, whose life is involved, a hearing on the merits of his exception, otherwise before us.

We therefore pass to the evidence, in order to demonstrate the materiality of the exception and the legal effect of the court’s ruling.

2. On behalf of the State a witness named Clancy testified as follows: On the morning of January 11, 1898, defendant Shadwell was in Kelly & Eagan’s saloon in Butte. Between 5 and 6 o’clock the defendant was playing cards with one Johnson and one Steinborn. The deceased, O’Connor, was sitting at the table opposite to Shadwell, apparently keeping account of the games played between the persons mentioned. O’Connor conducted the card-playing part of the saloon business of Kelly & Eagan’s saloon. While the game was going-on O’Connor, who had been drinking quite heavily that night, said to Shadwell: “If I catch yon cheating again, I will give you a chair over the head.” Shadwell was dealing at the time, and O’Connor continued, telling him that he had spoken to him before like a gentleman, and that, if he did not deal “straight,” he would have to leave the game. Shadwell said nothing, but left the table, leaving some chips in front of him, and passing out of the saloon into the street. On coming back, very shortly before 6 o’clock, he resumed his seat at the card table, and called for some chips, whereupon O’Connor told him he could hot play any more. Shadwell replied: “If I don’t play, nobody else will.” O’Connor said nothing, and Shadwell again called for his chips. J ohnson had the cards at the time that Shadwell made the remark just quoted, but Shadwell grabbed for them, to take them out of Johnson’s hands. About then O’Connor said he wanted to close the game, and stood up and reached for the cards. Shadwell, who appears to have had the cards by this time, also jumped up, and pulled a pistol from inside of his vest. He held the “gun” with both hands, and pointed it at O’Con-nor. O’Connor then tipped up the table, which was about three feet in diameter, and stooped over, fie stood with the table raised with one hand, and was “kind of reaching over at the same time, as if trying to grab the gun. ’ ’ He had nothing in his hand except the table. He raised one side of the table only, tipping it in front of him. Johnson moved away from O’Connor, whereupon Shadwell fired, hitting O’Connor in the head. Three men then grabbed Shadwell, who struggled to get away. O’Connor fell on his face and died immediately.

A witness for the prosecution, named McAuley, stated that O’Connor called Shadwell “some vile name, and told him he would take a chair to him,” before Shadwell left the saloon, and that O’Connor kept dodging behind Johnson after Shad-well had drawn his pistol. This same witness said that, at the time of the shooting, O’Connor was right close np to the legs of the table, and that Shadwell was also right up to the table, backed up against the wall, but that O’Connor “kind of backed up from the table before the shot was fired, and fell right on his face, right up in the corner.” “I could not tell,” continued the witness, “whether O’Connor was trying to protect himself, or get at Shadwell, or not; it was hard to tell. He was crowding him all the time. O’ Connor was between the legs of the table.” Witness also stated that at the time of the shooting they were about two feet apart. It appears that O’Connor had no weapon at the time of the occurrence.

Another witness for the state, named Anderson, stated on his cross-examination that, when Shadwell returned to the saloon, he ordered the barkeeper to bring his chips oyer, whereupon O’Connor told the barkeeper “to bring him nothing.” Shadwell then said: “If I can’t play, nobody else can play. ’ ’ Thereupon witness continued, Shadwell ‘ ‘gets the cards from Johnson, and O’Connor raises up to get the cards away from him, and I seen Shadwell raise up, and Johnson raise up. O’Connor raised up first. The remark that he made, when he raised up, — he says, ‘You s-of a b--, go ahead and make your bluff.’ O’Connor at the time kind of reached out with his right hand toward Shadwell. Shad-well raises up, and Johnson raises up, and the next I seen the table up, and a hand oyer the table. It was O’Connor that held up the table. It looked as though he was pushing it over towards Shadwell. He was leaning against it. Shad-well stood up against the wall, and the table was going on over towards him. O’Connor had a hold of the table with his left hand. With his right he reaches out kind of quick with it, and tried to take the gun, or to hit Shadwell, I don’t know which, I do not know whether he went to get the gun, or whether he went to strike at him. * * * He had been abusing Shadwell all night. He was in that kind of a mood generally that night. ’ ’

Charles McGowan testified, in behalf of the State, that, just before Shadwell left the card table, he heard O’Connor tell him to deal the cards from top to bottom, saying, “if you don’t, I will put you where they don’t play cards,” and that Shadwell then got up and walked out. In behalf of defendant a witness named Barrett testified that, just'before Shadwell left the saloon, O’Connor took the cards away from him, saying, “You dirty little s---of a b---, I told Charley and several other of the boys about that business, and, if you don’t quit that, I will hit you over the head with a chair, and you prepare yourself for it.” Shadwell then left. When he returned, his manner was as usual, and he warmed himself by the stove, and immediately thereafter walked to the card table, and sat down where he had been before. This witness said that O’Connor was very abusive towards Shadwell that night, and that he never heard a man abuse customers as O’Connor did.

Frank Buglis, called by defendant, said he saw Shadwell and O’Connor in the saloon mentioned on the 8th or 9th of January; that is, two or three days before the homicide. He said that O’Connor, Shadwell and another man were then playing a game of poker, and that Shadwell asked for the cards to cut them, to which the third person objected. Shad-well then said he had a right to cut the cards, whereupon the third person playing grabbed Shadwell’s hands, telling him to cut the cards right, and, just as he said this, O’Connor got up, saying, “Look here, you little s--of a b — —•, I want you to cut them cards and cut them right; I am not afraid of you, if you are a gun fighter,” to which Shadwell replied that O’Connor could call any body in the house to cut the cards, whereupon some one cut them, and the game went on. Witness said that upon that occasion O’Connor had been drinking, and that nothing previously had occurred to call forth the expressions used by O’Connor.

Another witness for the defense, by the name of Antonio, said that O’Connor told Shadwell, just before the killing, to shuffle the cards from the bottom, or he would turn the table on top of him. He described Shadwell as sitting at that time against the wall, and O’Connor as being on the opposite side, sitting down. This witness said that, when Shadwell came back and took his cards, he said, “Where is my checks ?” and O’Connor said, “Your checks are put away; I won’t give you any checks. ’ ’ Whereupon Shadwell said, ‘ ‘Fetch them back, ’ ’ and that O’Connor finally reached for the cards, which Shad-well had at the time. He described O’Connor’s disposition as “rough” when he reached for the cards, and said that O’Connor called Shadwell “a bastard” and a “s — — of a b--, ” or ‘ ‘something like that. ’ ’

Defendant himself testified that he had kno wn the deceased for about a year; that deceased was a man about 5 feet 10 or 11 inches, very heavy set, and weighed probably 190 pounds; that he had been in the saloon on the 8th or 9th of January, playing poker with O’Connor and a man called “Slim” and some one else; that during the course of that game he (Shad-well) claimed the right to cut the cards, whereupon O’Connor jumped up, and put his checks in his pocket, and walked around, saying: “You little s — of a b-, if everything ain’t on the square, I will kill you.” Defendant says he did nothing at that time. He testified that upon the night of the homicide he had been in the saloon gambling until 12 or 1 o’clock, then went away to the theater, and returned about 4 o’clock, and found O’Connor and two other men playing. He sat down in the far chair in the corner, and called for some chips,' and joined in the game. He stated that O’Connor had been drinking that morning, and was very abusive when he was drinking, ‘ ‘and any one he thought was small, or was a ‘mark,’ he would pick them up and’abuse them, and pull their noses, and so on.” Witness said that O’Connor was drinking most of the time while he was playing, and seemed to be losing, and was angry when he lost, and that he (defendant) had the largest pile of chips; that deceased had hit a miner in the stomach that morning while talking about two dollars which the miner seemed to be inquiring about. O’Connor’s manner, defendant said, was very “sore” at him (defendant), thinking it was because O’Connor did not like to see him win. Defendant’s account of the killing was as follows: “As I started to shuffle the cards, he jumped up, and said, ‘You damned little s— of a b-, shuffle them cards right, or I will hit you over the head with a chair, ’ and he grabbed the cards out of my hand, and then I didn’t say anything. He set the cards back to me, and I shuffled them up, and this Fred cut them, and I dealt the cards around, and I don’t believe that I had more than my ante in the pot, * * * and Mr. Johnson took the cards. After O’Connor handed me the card deck, I went ahead and shuffled and made the deal. Then Mr. Johnson took the cards, and shuffled them up, and I cut them, and then I happened to think that I had a key in my pocket that I was supposed to give to my brother, so he could go down home and sleep, and I just left my checks and overcoat.” Witness then related how he looked for his brother, and found him, gave him the key, and returned to the saloon in about thirty minutes. ‘ ‘I walked on into the gambling room, and walked around the south way, and took my seat where I had left it; and I says to Henry Hackman, who was supposed to be Red’s (O’Connor’s) partner, — I said, ‘Bring my checks,’ which he had often done before. O’Connor spoke up then, and said, ‘You can’t play any more.’ I says, ‘I have as good a right to play as anybody. ’ 1 think the cards were lying on the table by Mr. Johnson, and, reaching for them, I took the cards up, and began shuffling them, and O’Connor reached over the table and grabbed my hand, that way (indicating), and whether he was grabbing at me, or grabbing at the cards, I don’t know. He got the cards. I believe he got the cards. I was, of course, in a sitting position, and I kind of raised up a little, too; and, as I raised up, just about that position (indicating), he starts to go around the table that way (indicating); and, as he does, the table knocks up against me, and 1 seen it coming. I drawed my gun; that gun there (indicating). I have got my pants with no pockets in them, * * * and I always carry my gun with my vest closed that way (indicating). * * * I drew the gun when 1 was in this half-sitting position, and Mr. O’Connor was reaching around the table towards me. I was in there just about that position (indicating), and I unbuttoned my vest that way (indicating), and reached for the gun.’ The reason 1 reached for the gun was because I was scared of O’Connor. He was a large man, and I was afraid for him to get hold of me. This man Johnson that I spoke of was in front of O’Connor and myself. He was in front of O’Connor. At that time O’Connor started to rush around the table, when I drew the gun. * * * I was sitting right here (indicating), kind of up in the corner, — up against the wall. Johson was sitting to my left. * * * O’Connor was sitting over there, close to the door. After O’Connor jerked the cards out of my hand, he came around Johnson,— came around this way from Johnson (indicating). He came clear around, right up close to me, and, of course, Johnson made kind of a stop there, and then is when I got the gun; and I guess, when O’Connor saw he couldn’t get at me, Johnson walked on out, and then O’Connor starts to grab the table, and starts to push the table at me with one hand and strike at me with the other. O’Connor takes the table with this hand (indicating), and raises it up that way, and starts shoving it over onto me. When he starts to raise the table up this way (indicating), it caught me here (indicating), as it was so close to me. The rim of the table caught me there, and when the shot was fired I was just about in that position (indicating), and O’Connor right on me, and the table braced against me like that (indicating) My chair was right up against the wall. I fired the shot because I was afraid of O’Connor. He threatened me several times. I was afraid of him to get a hold of me; afraid he would cut my ear off, as he had threatened to do. Pie was striking at me; trying to get at me as fast as he could; coming right at me. After that I think the table tipped over on the floor. * * ' * After I saw O’Connor stagger and kind of fall, I didn’t know whether he was wounded or not. I was satisfied he couldn’t get at me, and I dropped the gun, and walked towards the door.” Defendant then described his arrest, and said that he had had the pistol with which he had killed O’Connor for many years. On cross-examination he said he was 26 years old; that he had been a gambler for a long time; that he always carried a pistol with him, when he was up late at night, and had money; that, when O’Connor threatened to break a chair over his head, he also told him to prepare himself, and he would “fix me so I wouldn’t play any more cards.” He said that O’Connor was trying to get hold of him any way he could, and wanted to put the table on top of him; that he was a small man, weighing 110 pounds; and that the reason he started to raise up before the shot was fired was because O’Connor was coming around the table after him. The cross-examination, in relation to the position of defendant and the deceased and the use of the table, was rigid. Defendant adhered to his statements that O’Con-nor was pushing the table on him, and coming after him at the time he fired the shot.

Defendant’s brother testified that, at about half past 5 o’clock on the morning of the homicide, the defendant met him in a saloon, and gave him a key to the house where defendant’s mother lived. His mother also testified that she told defendant, on the night of the 10th, to take his brother’s key iip and give it to him.

The foregoing resume of the testimony is sufficient to illustrate the events occurring at the homicide itself and just prior thereto. It also suffices to show that upon the trial evidence was admitted which extended back to a game of cards of the night of the 8th or 9th of January, two nights before the homicide, when the witness Buglis said he heard O’Connor without cause apply the epithets quoted to the defendant, telling him that he was not afraid of him if he was a £ £gun fighter, ’ ’ and when, according to Shadwell’s evidence, O’Connor also said to him, with an epithet, “If everything ain’t on the square, I will kill you.” This evidence was competent, and was evidently considered so by the counsel for the State on the trial, for it was admitted without objection, and was before the jury when the argument began. The jury had a right to consider it, and ought to have done so in weighing the evidence before agreeing upon a verdict. If the testimony given in respect to the threat of the 8th or 9th, and to the remarks which Buglis said were made in his presence by deceased to defendant, was credible, it had to do with defendant’s motive in killing O’Connor; hence was of the utmost importance, and became a proper subject of investigation. Now, in probing that motive, to ascertain whether he was prompted by malice, and acted maliciously, or whether he believed he was in danger of great bodily harm at the hands of the deceased during the movements of the two at the card table, just before and at the time of the killing, it was competent to prove previous threats of violence made towards defendant by O’Connor, as tending to show a cause for the belief Shadwell says he entertained that he was in great danger of receiving harm from O’Connor at the time that he fired at him and killed him. (Kerr on Homicide, p. 426.)

Without the existence of malice aforethought there could not have been murder; but, as said, to get at the fact of the presence or absence of such malice, recent previous difficulties with the deceased and recent prior threats by the deceased against the accused in this case, known to him, were admissible, and became a proper subject for argument by both sides. Many authorities recognize a qualification to the rule just stated, to the effect that “where it is clearly and unequivocally shown that the defendant was the aggressor, and there is no pretense that the deceased was about to carry the threats into execution, or that the defendant had reasonable grounds to believe, and did believe, that such was the case, evidence of such threats by the deceased, although they were communicated to the defendant, is inadmissible.” (Id', p. 428.) But the qualification is foreign to the consideration of the case presented, because in the record there is testimony on behalf of the State, as well as on behalf of the defendant, tending to show that deceased, O’Connor, had Shadwell backed up against the wall of the saloon, and was pushing a table against him, before and at the moment the defendant shot and killed him. With the truth or falsity of this evidence that defendant was against the wall the court had nothing to do, — that was for the jury to consider. But, being relevant and competent, it put the defendant’s case in a position where the evidence of the prior threats and difficulties became admissible, and, it seems to us, of vital importance to defendant before the jury.

So we are unable to understand exactly what the theory of the court was in admitting the accounts of the threats and innuendoes, and thereafter, of its own motion, withdrawing the evidence of them from the jury, with a positive direction that the jury should disregard all evidence of them, and pay no attention to the remarks of counsel upon such evidence. We cannot escape the conclusion that the court erred, and that the error was prejudicial to the defendant’s substantial rights. It is, therefore, ordered that the judgment be set aside, and a new trial awarded defendant.

3. Henry Hackman, a witness for the State, who was present at the killing, and who had been in the saloon off. and on all night, was asked on cross-examination if he knew how deceased had been acting the night of the homicide, and what his manner was towards his customers. The county attorney objected, upon the ground that “it was immaterial except as to defendant.” The objection was sustained. We cannot approve of the substance of the ruling. The witness saw defendant in the saloon frequently that night. He said that deceased had been drinking heavily before he was killed. Witness had evidently observed the conduct and demeanor of the deceased for hours just before the killing. Now, suppose his conduct was boisterous; that his rage towards others was desperate, or his temper was ferocious, and vented itself in fighting, abusing and terrifying others who came into the saloon just before the homicide; and that defendant observed this manner towards others. Would it not be relevant to the question of the reason for defendant’s belief, if he had one. that the attack he says O’Connor made upon him when he killed him was to do him great bodily harm? We think it would, and that, therefore, what transpired in defendant’s presence on the night of the killing was proper, even though it involved the conduct of the deceased towards others. On the other hand, we find no error in permitting evidence to be introduced of the defendant’s manner towards the deceased, or others in the presence of the deceased, just before the homicide.

4. The court refused to allow a witness for the defendant to testify that it was a custom of defendant, when he was gambling, to get up and leave the card table, and go out of the place where the game was being conducted. This evidence was evidently offered to rebut the theory of the State that, when defendant left the table after O’Connor had insulted him, his purpose was to get the pistol with which he afterwards killed deceased. We find no error in the exclusion of this evidence, in view of the fact that the defendant himself said that he suddenly remembered that he had his brother’s night key, and that his purpose in going out was to give the key to his brother, whom he found in a saloon. If this was true, he did not yield to any general habit of his, and the evidence of one became immaterial.

5. Defendant asked a witness named Albright, who testified that he had known deceased for six or seven years, the following question: “Had you, from your acquaintance with him, had an opportunity to observe, and had you observed, during this acquaintance, and the morning of the 11th, when you saw him, what his general disposition was as to aggressiveness, combativeness and quarrelsomeness?” The court sustained an objection to the question. Counsel says this question was intended to ascertain the fact whether the witness could say ‘ ‘what the general disposition of the deceased was as to aggressiveness, combativeness and quarrelsomeness. ” If it was, it should have been confined to mere general reputation of the deceased, apart from any particular opinion the witness entertained, based upon his observation of specific acts on the night of the homicide. As we have already pointed out, the acts of the defendant, his manner and conduct in the saloon in the presence of the deceased on the night of the killing, were admissible. So was his general reputation for violence. But the two involved separate inquiries, governed by different rules. To prove the general reputation of the deceased for vindictiveness or quarrelsomeness, evidence of specific acts of violence towards third persons was not inadmissible; hence the personal observation of the witness was incompetent upon this branch of the question. (Underhill on Cr. Ev. Sec. 325; People v. Druse, 103 N. Y. 655, 8 N. E. 733; People v. Gordan, 103 Cal. 568; 37 Pac. 534; Tiffany v. Com., 121 Pa. St. 165, 15 Atl. 462; Powell v. State, 101 Ga. 9, 29 S. E. 309; Stalcup v. State, 146 Ind. 270, 45 N. E. 334; Garner v. State, 28 Fla. 113, 9 South. 835; Sawyer v. People, 1 N. Y. Cr. R. 249.) Defendant’s counsel should have limited his question to obtain the evidence he says he intended to adduce.

6. Defendant complains because the court “divided the instructions given to the jury into two sections or divisions, and read the same to the jury separately.” It simplifies the procedure for the court to read all the instructions given on one branch of the case consecutively, whether they have been offered by the prosecution or defense, but the omission to pursue this course is not a reversible error, unless the instructions are conflicting or erroneous.

7. The court, by a separate instruction, said to the jury as follows: “If the act of killing be preceded by a concurrence of will, deliberation and premeditation on the part of the slayer, it is murder in the first degree, no matter how rapidly these acts of the mind may succeed each other, or how quickly they may be followed by the act of killing. ’ ’ Defendant says that this is an erroneous definition of murder in any degree, and cites the case of State v. Shafer, 22 Mont. 17, 55 Pac. 528, to uphold his argument. If the instruction stood alone, of course, it would be fatal in its omission of the fundamental ingredients of the crime of murder in the first or second degree. But the statutory definitions of both degrees of murder were elsewhere explicitly given in the charge and perhaps the error was not prejudicial. We need not say whether it was or not. But we must earnestly disapprove of the instruction as calculated to mislead a jury in its deliberations, by affording them a possible opportunity to accept the instruction as a complete definition of murder, to the exclusion of any definition before given. Where a trial court desires to address the attention of the jury to a single phase of of the crime charged, it is generally safer to inform them that if they find, from the evidence, all the ingredients exist as they have been defined, and that the particular condition covered by the matter embraced in the separate instruction also exists, this or that conclusion would follow. The Supreme Court of California in People v. Evans, 56 Pac. 1024, have very recently considered a somewhat similar insufficient definition of a phase of murder, and vehemently expressed their disapprobation in much the way this Court did in the Shafer case. Upon a new trial, however, the danger of such an instruction can be avoided.

8. Barrett, a witness for defendant, in the course of a severe cross-examination was asked to whom he paid rent. There was no error in this. Witness seemed to be a roving sort of a'character, with no fixed occupation or residence. His evidence was very material, and, to identify him, test his credibility, aud sift his statements, it was not improper to pin him down as to his residence, the time he had lived in one place, his occupation, etc.

9. Defendant argues that the information states no offense. Although it charges murder in the first degree with sufficient certainty to sustain the lower court in overruling a motion in arrest of judgment, it is not as direct or positive in its allegations of the shooting as it might be. Defendant waived these defects by not objecting to them at the proper time.

10. We shall not express an opinion at all upon the sufficiency of the evidence to sustain a verdict of murder in the first degree. The case was a proper one to submit to the jury with instructions upon murder and manslaughter.

It is unnecessary to examine other errors urged by defendant, none of which will probably arise on a new trial.

The judgment is reversed, and the case remanded for a new trial. Remittitur forthwith.

Reversed and remcmded.

Brantly, C. J., and Pigott, J., concur.


author: PER CURIAM.

text:
    MURPHY, Appellant, v. NORTHERN PACIFIC RAILWAY CO. Respondent.
    [No. 1384.]
    [Submitted May 10, 899.
    Decided May 26, 1899.]

      Appeal — Notice of Appeal — Undertaking on Appeal — Certificate.

    1. Under the Code of Civil Procedure, Section 1739, requiring the certificate of the clerk on appeal to state “that an undertaking ou appeal in' due form has been properly filed,” a certificate “that a good and sufficient undertaking on appeal approved by me has been filed in my oilice” is fatally detective.
    2. A notice of appeal declared the parly appealed from a judgment of one date, and from an order of another date, and from “all other judgments, orders and decrees.” The bond recited the party was about to appeal from a certain judgment, order and decree, at the “times” mentioned in the notice. Held, that the bond was invalid for ambiguity, in not stating which appeal it was intended to secure.

      Appeal from District Court, Yellowstone County; C. H. Loud, Judge.

    Action by Emma Murphy, individually and as administratrix of the estate of Patrick Murphy, deceased, against the Northern Pacific Railway Company. There was a judgment for defendant, and plaintiff appeals.
    Dismissed.

      Geo. R. Milium, for Appellant.

      Wm. Wallace, Jr., for Respondent.
   PER CURIAM.

This action was brought to recover $20,000 as damages for the alleged negligent killing of one Patrick Murphy by defendant.

On February 8, 1898, an order was entered, at page 391 of Minute Book 4 of the court below, setting aside the service of summons and striking the complaint from the files. On April 4, 1898, a judgment dismissing the action for want of prosecution was entered at page 440 of said Book 4. After-wards, on October 20th, the court, by duly entered orders, denied the motions of plaintiff to set aside the order of February 8th and to vacate the judgment of April 4th. On January 28, 1899, an order was entered in the court below denying the motion of plaintiff for leave to file an amended complaint. The plaintiff then filed and served her notice of appeal, which, with the exception of mere formal matters is as follows:

‘ ‘Please take notice that the plaintiff in the above entitled action, both in her individual capacity and as administratrix of the estate of Patrick Murphy, deceased, hereby appeals to the Supreme Court of the State of Montana from the judgment and order made and entered in the above entitled action in the District Court of the Seventh Judicial District of the State of Montana, in and for the County of Yellowstone, on the eighth day of February, A. D. 1898, striking plaintiff’s complaint from the files of said court, in favor of the defendant in said action, and against the said plaintiff, and from the whole thereof, which said order is recorded in District Court Minutes, at page 391, Volume 4 thereof.
“You will also take notice that the plaintiff as above mentioned also appeals to the Supreme Court of the State of Montana from the judgment and order therein made 'and entered in the District Court of the Seventh Judicial District of the State of Montana, in and for the County of Yellowstone, dismissing said plaintiff’s action on the fourth day of April, A. D. 1898, in favor of the defendant in said action, and against said plaintiff, and from the whole thereof, which said judgment and order is recorded in District Court Minutes, at page 410, Volume 4 thereof.
“You will also take notice that the plaintiff as above mentioned hereby appeals to the Supreme Court of the State of Montana from all other judgments, orders and decrees made or entered in the District Court of the .Seventh J udicial District of the State of Montana, in and for the County of Yellowstone, in favor of the defendant in said action, and against said plaintiff, and from the whole thereof. ’ ’

The body of the undertaking on appeal reads: “Whereas, the plaintiff in- the above entitled action, both in her individ- • ual capacity and as the- administratrix of the estate of Patrick .Murphy, deceased, is about to appeal to the Supreme Court of the State of Montana from a certain iuclgment, order and decree against the plaintiff in said action in the said District Court of the Seventh Judicial District of the State of Montana, in and for the County of Yellowstone, in favor of the defendant in said action, at the times mentioned in plaintiff’s notice of appeal, to which reference is hereby made: Now, therefore, in consideration of the premises, and of such appeal, we, the undersigned, residents and freeholders of the said County of Yellowstone and State of Montana, do jointly and severally undertake and promise, on the part of the appellant, that the appellant will pay all damages and costs which may be awarded against her on the appeal, or of a dismissal thereof, not exceeding three hundred ($300) dollars, to which amount we acknowledge ourselves jointly and severally bound. ’ ’

In the certificate to the transcript the clerk states “that a good and sufficient undertaking on appeal, approved by me, in the sum of three hundred ($300) dollars has been filed in my office. ’ ’

The defendant now moves this court to dismiss the appeals so taken or attempted to be perfected.

The record before us does not present for review any order or judgment. Without a certificate of the clerk or of the attorneys “that an undertaking on appeal, in due form, has been properly filed, or the stipulation of the parties waiving an undertaking, ’ ’ the appeal ought to be dismissed on motion. (Code of Civil Procedure, Sec. 1739; San Francisco & Forth Pacific Railroad Co. v. Anderson, 77 Cal. 297, 19 Pac. 517; State ex rel. Pierson v. Millis, 19 Mont. 444, 48 Pac. 773.) Here there is neither a certificate of the attorneys nor a stipulation waiving undertaking, and the clerk’s certificate, not conforming to the statute in the respect mentioned, is fatally defective. (State ex rel Pierson v. Millis, supra.) Defendant, does not, however, move a dismissal because of this omission, but upon the ground that the undertaking certified to this court is insufficient, within the principles announced in Creek v. Bozeman Waterworks. Co., 22 Mont. 327,

56 Pac. 362. The position is well taken. It is impossible to determine for which particular one of the several appeals the undertaking, which is in the sum of $300 only, was given or is intended. By her notice of appeal plaintiff declares that she appeals from the judgment of April 4th, and also from several orders, among which is that of February 8, 1898; and the undertaking recites that she is about to appeal “from a certain judgment, order and decree against the plaintiff, * * * at the times mentioned in plaintiff’s notice of appeal, to which reference is hereby made. ’ ’ The manifest design was that the bond should conform to the notice and apply to the order of February 8th and to the judgment of April 4th. There would seem to be no question but that the words last quoted are intelligible-only when understood as referring to the order and to the judgment entered on February 8th and April 4th, respectively. “The times” manifestly refer to the dates, mentioned in the notice, on which the judgment and the order were severally made and entered. The undertaking is ambiguous and uncertain.

The motion is therefore granted and the appeals are dismissed.

Dismissed.


author: PIGOTT, J.

text:
    GREELEY, Appellant, v. CASCADE COUNTY, Respondent.
    [No. 1,116.]
    [Submitted April 20, 1889.
    Decided May 29, 1899.]

      Gov/nties — Action on Claims — Limitations — Warrants— Gheclcs — Delay in Presentment.

    1. Compiled Statutes 1887, Division V, Section 764, and Political Code, Section 4288, giving a claimant against a county a right to appeal from a rejecting of the claim by the commissioners, does not preclude the maintenance of an independent action on the rejected claim, in view of Code of (ivil Procedure, Section 517, providing that actions on rejected claims against a county must he commenced within six months alter the first rejection.

      2. Under Code of Civil Procedure, Section 517, requiring actions on rejected claims against a county to be commenced within six months after the first rejection, a claim that was rejected before the passage of the act is barred .if ,no action is commenced thereon with in six months after its passage.
    3. One cannot maintain an action against a county on a county warrant, in view of Political Code, Section 4290, requiring the treasurer to pay warrants in the order of presentation, thereby making mandamus the remedy of the holder of a warrant which the treasurer refuses to pay, though the refusal is based on the ground of payment by check, as Code of Civil Procedure, Sections 1960-1973, authorize a trial of issues raised by a traverse of a return to the writ.

      Semble. — If, however, a county warrant were tobe considered, in legal effect, the promissory note of the county, then it would be a claim or demand on which an action cannot be maintained to recover a money judgment until after the refusal of the board of county commissioners to order its payment by means of a new warrant.
    4. A rule requiring the payee of a cheek to stand the loss occasioned by his failure to present it until the bank on which it is drawn suspends payment, applies to checks drawn by a county treasurer to pay a warrant issued on a claim against the county.

      Appeal from District Court, Cascade County; Dudley Du Bose, Judge.

    Action by James Greeley against Cascade countjc From a judgment for defendant, and an order denying a motion for new trial, plaintiff appeals.
    Affirmed.

      Thomas E. Brady and F. A. Merrill, for Appellant.
    The receipt of a check from a debtor does not operate as payment of the debt in the absence of an express agreement that it shall have that effect. (See many cases cited on pages 167-170, Yol. 18, Am. and Eng. Ency. of Law; Compton v. Dresbach, 78 Cal. 15.) The surrender and cancellation of a note or other instrument upon receipt of a check for it is not evidence that the check was in satisfaction of the instrument. (Henry v. Conly, 48 Ark. 267; Thomas v. Winchester, 115 N. Y. 51; Cannonsburg v. Iron Co. Pa. 4 Cent. Rep. 258.) The rule is and was, as stated in section 4331 of the Civil Code, that the drawer and endorser of a check is exonerated by delay in presentment only to the extent of the injury which they suffer thereby. “The drawer of a check is not discharged by any length of delay in presentment, unless he has suffered actual loss or injury by reason of such delay, and then he is discharged only pro tanto.^ (Boone on the Law of Banking, Sec. 172, citing Smith v. Jones, 2 Bush. 103; Bell v. Alex

      ander, 21 Gratt. 1; Syracuse v. Collins, 3 Lans. 29 \ Brust v. Barrett, 16 Hun. 412; Scott v. Meeker, 20 Hun. 161; Cox v. Boone, 8 W. Ya. 500, 23 Am. Rep. 627; Compton v. Oilman, 19 W. Ya. 312, 42 Am. Rep. 776; Stewart v. Smith, 17 Ohio St. 72; Kinyon v. Stanton, 44 Wis. 479; Stevins v. Bark, 73 111. 387; Emery v. Ilobson, 63 Me. 32, 16 Am. Rep. 513; Moráis v. Kennedy, 23 'Kan. 408.) “The maker of a cheek cannot object to a delay in presenting it unle.-s he shows some special injury to himself resulting therefrom.” (Newark on Bank Deposits, Sec. 204; and see Bickford v. Ifrst Kail. Bank, 42 111. 238; Bull v. Kasson, 123 U. S. 105.) Before defendant can ask to be exonerated or discharged from any of its obligation to plaintiff under this rule it must allege and prove that it sustained a loss by reason of plaintiff’s delay in presenting the check; this it has not shown. The burden of proof of loss or injury by reason of delay in presentment of the check is on defendant. (Code of Civil Procedure, Secs. 3145, 3290.)
    The defense of the statute of limitations is a personal privilege and must be taken advantage of by demurrer or answer, otherwise it is deemed to be waived. (Kelly v. Kriess, 68 Cal. 210; Bcagan v. Justices Ct., 75 Cal. 253, and see Sec. 558, Code Civ. Proc.) Defendant evidently attempted to plead the statute in the manner allowed by Sec. 749 of the Code of Civil Procedure, but did not state nor give the section nor subdivision as required, although a reference was made to Sección 517 of the Code of Civil Procedure. (Stewart v. Budd, 7 Mont. 573; Manning v. Dallas, 73 Cal. 420.) Subdivision 2 of Section 517 applies only to claims which have been rejected by the county commissioners. The objection that mandamus and not an action at law was plaintiff’s proper remedy, should have been made before answer and before trial. The defendant answered to the merits, the cause was tried on the issues so raised, and not until after the trial was this defense raised. The objection then came too late. (Ilockaday v. Board of Co. Com., 29 Pac. 291.) At common law counties could not be sued, but our statutes expressly authorize counties to sue and be sued. (Pol. Code, Sec. 4193; Comp. Stat. 1887, Sec. 774, 5 Div.) But it is claimed that the liability of counties to suit has been so limited by the provisions of Sections 4286-4290 and Section 4299 of the Political Code that they cannot Le sued at all, or at least in the case of claims and accounts against them.
    The utmost extent of limitation on the right to sue that can be extracted from these provisions, and nothing else is urged by the trial court, is that they suspend the right of the claimant to bring suit until his claim has been presented, audited and allowed or rejected, and that after it is allowed and a warrant issued the claimant must wait until the warrant can be paid in its proper order. When that time has arrived and the warrant is not paid on presentation suit can be at once brought against the county and there is nothing in the statutes requiring the claimant to wait longer. This is the general rule in all states except those where the common law immunity of counties from suits still exists. (Bank v. Franldin County, 65 Mo. 105, (27 Am. Rep. 261); lleffelman v. Pennington County, 3 S. Dak. 162, (52 N. W. R. 851); State v. Baker County, 24 Ore. 141, (33 Pac. 530); Am. and Eng. Ency. Yol. 15, p. 1219.) The sections of statute in relation to appeal from the disallowance of claims do not apply to this case because plaintiff’s claim was not disallowed. Section 4199 merely provides for the payment of judgments against a county, and instead of forbidding suits against a county assumes that there shall be suits and judgments against them. Mandamus would not be proper and only by an action can plaintiff obtain proper relief. (State v. Mayor, 52 Wis. 423, 9 N. W. R. 607;.People v. Johnson, 100 111. 537, 39 Am. Rep. 63; Casset v. Barber Co., 39 Kan. 505, 18 Pac. 517; Board v. Grant, 9 Smedes & M. 77 (Miss.), 47 Am. Dec. 102; People v. Brooklyn, 11 Wend. 318 (N Y.), 19 Am. Dec. 502; Mechem on Public Officers, Sec.' 938.)

      C. B. Nolan, Attorney General, for Respondent.
   PIGOTT, J.

The plaintiff sued Cascade county upon two alleged causes of action. The subject of the first cause of action is a county warrant, of which the following is a copy:

“No. 399. Great Falls, Cascade County, Mont., )
June 14, 1893. j

“The treasurer of Cascade county will pay to James Greeley, or order, eleven hundred forty- three and 61-100 dollars for keeping Poor, etc., out of any moneys in the treasury belonging to the Poor Fund.

“S. N. Dickey,
“Chairman Board of County Commissioners.
“Howard Crosby, County Clerk. [Seal.]”

It is alleged that the warrant was drawn for a duly audited and allowed claim of the plaintiff; that there was then to the credit of the poor fund a sum of money more than sufficient in amount to pay the warrant and all other warrants issued theretofore upon said fund, and that such funds were in cash and were in the hands of the treasurer; that the warrant was duly presented to the treasurer for payment; that the treasurer took up the warrant and stamped it as paid, but that, instead of paying the money called for by it, the treasurer delivered to plaintiff a check, signed by himself as treasurer of Cascade county, upon a bank which was then insolvent; that upon presentation to the bank upon which it was drawn the check was dishonored, and plaintiff has been unable to recover any money thereon; that soon after the suspension of the bank the defendant made and filed a claim to all the moneys deposited to the credit of the treasurer in said bank, and that defendant has collécted and retained, and passed to its credit all dividends paid by the bank, or its receiver, upon the entire deposit; and that the defendant has wholly refused and neglected to pay plaintiff any part of said moneys due him upon said warrant, but has retained the whole thereof. Plaintiff further alleges that he is still the owner of the warrant and the holder of the check given as a substitute therefor.

The defendant, by answer, admits that the claim of the plaintiff was allowed, and the warrant drawn, as stated; that the treasurer received the same, and gave a check upon the bank for the amount, but alleges that the check was good on the 15th day of June, 1893, when plaintiff received it, and denies that the bank was insolvent at that time, but was solvent until the 21th day of July, 1893, when it closed its doors, and that the bank was willing and ready at all times until its suspension to pay the check, and that by the neglect of plaintiff to present the check the defendant lost the sum of money for which it was drawn. The other defenses set up by the answer to the first cause of action are not necessary to be stated.

The second cause of action is based upon a contract alleged to have been entered into between plaintiff and the defendant. Upon this cause of action plaintiff sought to recover §510. Among the defenses pleaded to this cause of action is the statute of limitations, the defendant averring that on March 13, 1891, the county auditor and the board of county commissioners of Cascade county duly rejected and disallowed the account and itemized statement upon which the second cause of action is based, and that since the date of the disallowance no action has been commenced on saicl account, except the one at bar, and defendant alleges that the second cause of action is barred by the statute of limitations, by virtue of Section 517 of the Code of Civil Procedure. Defendant further pleads that plaintiff has never appealed from the decision of the board9 of county commissioners in disallowing the account.

Trial was had by the court. The evidence established, among other things, that the check delivered to the plaintiff by the treasurer was held by plaintiff from June 15th until the bank closed on July 21th, and was never presented while the bank was open, and that the county, through its treasurer, laid claim to, and was allowed to prove its claim for, the full amount appearing on the books of the bank to the credit of the county, and that three dividends of 10 per cent, each had been paid to the county prior to the commencement of the action. After the submission of the cause, counsel for defendant moved for leave to have the cause reopened, in order that a motion might be made therein, which motion, not being opposed by plaintiff, was granted. Defendant’s counsel then moved the court to render judgment for defendant upon the first cause of action, because plaintiff cannot maintain an action against the county, for the reason that the county, through its board of commissioners, had already audited and allowed plaintiff’s claim, and had caused a warrant to be drawn and delivered to him. The court found for the defendant upon the alleged first cause of action, on the ground that there was no cause of action stated against the county, and dismissed the complaint as to the second cause of action, finding that it was barred by the statute of limitations. Plaintiff appeals from the judgment, and from an order denying his motion for a new trial.

1. The court below held that the right to appeal from the decision of the board of commissioners, given by Section 764 of the Fifth Division of the Compiled Statutes of 1887, and by Section 4288 of the Political Code, excludes the maintenance of an independent action on the rejected demand; but, in our opinion, the owner of such a claim is not confined or limited to the remedy by appeal. He may pursue that remedy,, or he may bring an action upon the disallowed claim. His privilege is to take either course, — to appeal to the district court within 30 days, or to sue upon the claim within- six months, after the rejection. This view accords with the general rule (7 Am. & Eng. Ency. Law [2d Ed.] 962), and is in harmony with Section 517 of the Code of Civil Procedure, as well as with the practice hitherto prevailing in Montana.

The learned judge was right, however, in dismissing the complaint as to the second cause of action. The complaint was filed on March 31, 1896. The account upon which the second cause of action is based was rejected by the board of county commissioners on the 13th day of March, 1894. Section 517 of the Code of Civil Procedure, which provides that actions on rejected claims against the county must be commenced within six months after the first rejection thereof by the board of commissioners, went into effect on the 1st day of July, 1895. The remedy is barred. In the case of Gutter man v. Wishon, 21 Mont. 458, 54 Pac. 566, the question involved was elaborately considered, and we adhere to the views there expressed.

2. We are of the opinion that the learned judge of the district court was correct in bolding that the facts stated in the first cause of action are insufficient to support any judgment thereon that might be rendered in favor of plaintiff, who seeks to recover a money judgment against' the county upon the warrant. Section 4193 of the Political Code declares that a county has power to sue and be sued. Section 4286 of the same Code provides for the method of presenting accounts chargeable against the county to the board of county commissioners, while the immediately succeeding section provides that no account must necessarily be passed upon by the board unless itemized and verified. Section 4288 creates the right of appeal from the action of the board in allowing or disallowing an account or claim. Section 4290 is as follows: ‘‘Warrants drawn by order of the board on the county treasurer for the current expenses during each year must specify the liability for which they are drawn, and when they accrued, and must be paid in the order of presentation to the treasurer. If the fund is insufficient to pay any warrant, it must be registered and thereafter paid in the order of its registration.” Section 4199 provides that no execution shall issue upon a judgment rendered against the county, or against any county officer, in an action prosecuted by or against him in his name of office, when the judgment is to be paid by the county, but that the judgment must be paid as other county charges by the treasurer upon the delivery of a proper voucher therefor; the voucher being, as intimated by Mr. Justice Bach in Powder River Cattle Co. v. Commissioners of Custer Co., 9 Mont. 145, 22 Pac. 383, the warrant of the board of commissioners. Subdivision 5 of Section 4350 directs the treasurer to disburse the county moneys only on county warrants issued by the county clerk, based on the orders of the board of county commissioners, or as otherwise provided by law. Under these provisions, and the policy of the law as declared in Powder River Cattle Co. v. Commissioners of Custer Co., supra, we think that “the purpose of the statute is quite apparent. It is to protect the people from unjust payments ordered by the commissioners, and to protect them from unnecessary expenses of litigation. Any taxpayer may appeal from any order made by the board and directing the payment of money; and on the other hand, the board is authorized to pass upon all claims for the payment of money against the county, and thus avoid the unnecessary costs involved in an action at law in all cases where they consider the demand just and legal. The demands against a county are numerous, and it is only just and proper that the representatives of the county should have an opportunity to examine and pass upon such accounts or demands before they are made the subject of an action at law.” It was not contemplated by the legislature that the owner of a warrant which the treasurer refuses to pay may obtain a money judgment against the county in an action upon the warrant. If such judgment were obtained, the same necessity would exist for presenting it to the board of commissioners for audit and allowance as existed with respect to the account upon which the warrant was issued. A warrant upon the treasurer as a means of paying the judgment would then be issued, and this warrant would be paid by the county treasurer upon presentation, or registered, if not paid, and then be liquidated in its proper order. The board of commissioners, as appears by the complaint, had fully performed its duty when it caused t > be issued to the plaintiff the warrant sued upon.

There may be, and doubtless are, remedies, other than mandamtis, which, in view of its peculiar circumstances, could be invoked in this case; but certainly, if the treasurer is in funds, mandamus against him, and not an ordinary action upon the warrant, is a proper remedy. Counsel for the plaintiff insists that mandamus does not lie, for the reason that there are disputed questions of fact which have arisen since the warrant was issued; but this is no sufficient reason why a writ of mandate should be quashed. It. is true that, originally, no return whatever was permitted to the alternative writ. Afterwards a return was required, but the matters stated therein were taken as true, and no traverse was permitted; the sole remedy being an action for damages occasioned by the return, if false. By St. 9 Anne, c. 20, the matters stated in the return to the alternative writ were allowed to be controverted, and the issues thereby raised tried by jury, in cases involving contests for municipal offices; and in the first year of the reign of William IY. an act (chapter 21) was passed under which the issues raised by traverse to the return might in all cases be tried and determined. Our statute (Sections 1960 — 1973 of the Code of Civil Procedure) with respect to mandamus, or the “writ of mandate,” as it is called, assimilates such a proceeding, in respect of pleading and practice, to the ordinary civil action. Of course, such a proceeding cannot be maintained where there is a plain, speedy and adequate remedy in the ordinary course of law; nor can it be upheld unless brought to compel the performance of an act which the law specially enjoins as a duty. (See State ex rel. Great Falls Water Works, v. City of Great Falls, 19 Mont. 518, 49 Pac. 15.) We are aware that many courts of high standing hold that an ordinary action in the nature of assumpsit, debt or covenant may properly be brought upon a warrant such as the one in question here. Some of these decisions are upon statutes quite similar to ours, while others are based upon provisions of laws differing widely from those of Montana which are applicable. Goldsmith v. Baker City, 31 Or. 249, 49 Pac. 973, is one of these cases, and it cites with approval other leading adjudications which it follows. Upon the other hand, the conclusion which we reach is supported by Bacon v. City of Tacoma, 19 Wash. 674, 54 Pac. 609, and the cases there cited, as well as by Klein v. Board of Supervisors, 51 Miss. 878, by Polk v. Board of Supervisors, 52 Miss 422, and, it would seem, by Dana v. City & County of San Francisco, 19 Cal. 486, Alden v. Alameda Co., 43 Cal. 270, and Day v. Callow, 39 Cal. 593. In Klein v. Board of Supervisors, supra, the action was upon county warrants issued upon claims audited and allowed by the board. A demurrer for insufficiency was interposed to the declaration, which presented the question whether the holder of the county warrant could sue the board of supervisors by ordinary action. The court there said: ‘ ‘Without a statute authorizing a suit against the board, it would not be maintainable. The statute giving the right to sue does not embrace a case where a claim has been allowed and a warrant issued. It is only where the board of supervisors may refuse to allow a claim that suit may be brought on it. A warrant is evidence of allowance, not of refusal. If the claim has been allowed, the creditor has a judgment, and does not need another, which would be satisfiable with another warrant. ’ ’ Bacon v. City of Tacoma, supra, was an action to recover the amount averred to be due upon city warrants, which the complaint alleged were presented for payment to the treasurer, but no payments made thereon, though payment was often demanded, that the city had sufficient money in its general fund out of which the warrants might be paid, and that the refusal of the defendant city to pay the warrants was for the reason that there was a dispute as to the fact between plaintiff and the city as to whether there was anything due on the warrants, the city claiming that the warrants had been paid and were forgeries, which plaintiff denied. A demurrer to the complaint was sustained. The sole question considered by the supreme court was whether such an action could be maintained. The court held that it could not be, and, furtheT, that mandam.us was a proper remedy. In Abernethy v. Town of Medical Lake, 9 Wash. 112, 37 Pac. 306, the court remarked: ‘‘These warrants the treasurer must pay, in the order of their issuance, out of any funds coming into his hands belonging to the general fund; and, if he refuses, a like suit (mandmnus) will lie against him. The statutes prescribe' how municipal corporations shall pay ordinary contract debts, viz., by the issuance of a warrant, payable in its order, with interest from date of presentation. But it is not contemplated that the owner of an allowed claim shall sue the corporation generally,- upon the original contract, when the clerk or other officer refuses to issue a warrant, nor that the holder of a warrant which the treasurer declines to pay shall get a judgment upon the warrant. Such a judgment, like.a judgment upon a claim disallowed, would again be settled by a warrant, and take its turn in the order of payment. The contracting powers of the town have done all they can by the making of the contract and the allowance of the claim. It is the ministerial officers who are now in fault, and the plaintiff must move them to action before he is entitled to any other remedy.” So in Cloud v. Town of Sumas, 9 Wash. 399, 37 Pac. 305, the court say: “If this action can be maintained

upon the warrants which have been Issued, then a like suit might be maintained upon the warrants issued in satisfaction of this judgment, and so on without limit. Clearly the law contemplates no such proceedings. The plaintiff already has the town’s evidences of indebtedness, issued to him in regular form, and, if the treasurer should refuse to pay them in their regular order, he can resort to a mandamus to compel such payment. * * * And the questions, if they are further insisted upon, affecting the legality of such warrants, can be tried in that proceeding.” If, however, the warrant is, in legal effect, the promissory note of the county, as vas decided in Board of Commissioners v. Day, 19 Ind. 450, then it would seem to be a claim or demand on which an action cannot be maintained to recover a money judgment until after the refusal of the board to order its payment by means of a new warrant; but this question is foreign to the case at bar, and is suggested in illustration only.

In the proper proceeding the plaintiff would be entitled to recover the amount for which the warrant was drawD, less such sum as equals the actual loss or injury, if any, sustained by the county by reason of his delay in presenting the check to the bank. Instead of requiring the treasurer to pay the warrant in cash, as was his right, he elected to accept the check of that officer in conditional payment. The funds upon which the check was drawn, and out of which it was payable, were in the custody of the treasurer as bailee and trustee. They belonged to the county. (City of Livingston v. Woods, 20 Mont. 91, 49 Pac. 437, and cases therein cited.) The plaintiff, in taking the check, dealt with the county as represented by its treasurer, and not with the treasurer as a private person. • Under these circumstances, it is difficult to perceive any reason why the plaintiff should be heard to claim exemption from the obligation to make due presentment of the check, or should be permitted to escape the consequences of his neglect to do so. We are of the opinion that the same rule in that regard must be applied to the plaintiff, in his transaction with the county through its treasurer, as would be applicable to the ordinary case of a check holder whose unreasonable delay in demanding payment of the bank results in loss or injury to the drawer.

The judgment and order appealed from are affirmed.

Affirmed.

Brantly, C. J., and Hunt, J., concur.