text:
    GLASS et al, Respondents, v. BASIN MINING & CONCENTRATING CO., Appellant.
    [No. 1025.]
    [Submitted January 27, 1899.
    Decided February 6, 1899.]

      Eminent Domain — Mimes—Ditches—Petition for Right of Wap — Sufficiency.
    1. The right to take private property from its owner against his will, can only be invoked pursuant to law, and there must always be a rigorous compliance with the provisions of „the law.
    2. Compiled Statutes 1887, Fifth Division, See. 1407, authorizing a mine owner to petition for a right to construct a ditch over another’s claim if the right “shall not have been acquired by an agreement,” requires the mine owner to make an unsuccessful attempt to come to an agreement before filing his petition.
    3. A petition by a mine owner, under Fifth Division, Compiled Statutes 1887, for a right to construct a ditch over another’s claim, must allege that plaintiff attempted to come to an agreement as required by Section 1497, and failed.
    4. A petition by a mine owner under Fifth Division, Compiled Statutes 1887, for a right to construct a ditch over another’s claim, does not show that he attempted to agree with him and failed, by alleging that there never was an agreement, and that plaintiff offered to do a certain act to allay defendant’s apprehensions of damage to him in case the ditch was constructed.

      Appeal from District Court, Jefferson County/ Framh Showers, Judge.

      Action by James Glass and another, composing the firm of Glass Bros., against the Basin Mining & Concentrating Company. Judgment for plaintiffs, and defendant appeals.
    Reversed.
    Glayberg, Corbett do Gunn, for Appellant.

      T. E. Crutcher, for Respondent.
    We contend that under our statute it is not necessary to ah lege an attempt to agree. It will be observed that this writ was instituted previous to July 1st, 1895, and is governed by the law as it stood at that time. There are two statutes relative to the exercise of eminent domain. The first a general statute applicable to all purposes for which private property may be taken. (Sec. 508, First Div. Comp. Stat.) The second seems to be applicable to right of way to convey water to mines only. (Secs. 1495-1507, Fifth Div. Comp. Stat. ) For the sake of argument we will concede that we proceeded under the latter statute. We insist that this statute nowhere provides as a condition precedent to suit that an effort shall be made to agree upon a price. The language used is this: “Whenever the owner or owners of any mining claim shall desire to work the same, and it is necessary, etc., to have a right of way for any of the purposes mentioned in the foregoing sections and such right shall not have been acquired by agreement,” etc. The result in this case will depend on the construction the Court will place upon the words, “if such right of way shall not have been acquired by agreement.” Counsel for appellant attempts to make the point that we should set out á tender of money before suit was brought. In other words, that it is imperative that we should, have made an offer to buy with money.
    We find nowhere in our statute that the plaintiff shall or must first make any offer either of money or other value; and he seeks to interpolate in the statute what is not there. In the construction of a statute the office of the Judge is simply to ascertain and declare what is in terms or substance contained therein and not to insert what has been omitted or omit what has been inserted. (Comp. Stat., Sec. 630, p. 225; Taylor v. Ashby, 3 Mont. 248.) It will be observed that this act is analogous to the general act of eminent domain found in Comp. Stat., p. 214. And the two acts being in pari materia must be construed together. The general act says nothing about an offer or failure to agree and if this Court places the construction on the statute asked by counsel for appellant it would follow that a party invoking the exercise of the right of eminent domain for any other purpose than that mentioned in Section 1495, Compiled Statutes, would be under no necessity of making an offer, whereas he who proceeded under that .■section must make an offer, which would seem to be class legislation. All cases cited by counsel for appellant were decided under statutes requiring an effort to agree as a condition precedent. The American and English Encyclopedia of Law puts it thus: “It is in some cases also made a condition that the power shall not be exercised until The parties have attempted and failed to agree upon the price.” (Am. and Eng. Ency. of Law, Vol. 6, p. 522.) Citing cases from Cal., Ill., Ind., Mass., Oregon, Penn., Ohio and Tenn.
    If the Judge to whom the application is made is satisfied at the time of the appointment of the commissioners that the parties are unable to agree upon the price, it is sufficient to authorize the exercise of the power. (Coster v. N. J. R. R. Co., 23 N. J. L. 227.) It was held in one of the cases cited by counsel for appellant that the presence at time of hearing and refusal or failure to treat is enough to constitute failure to agree. (State v. Plainfield, 41 N. J. Law, 138.) The filing of a petition shows the petitioners’ election not to agree and no previous attempt is necessary. (Ætna Mills v. Watham, 126 Mass. 422.) An affidavit that parties had failed to agree implies an effort to agree. (Tucker v. Erie P. R., 27 Pa. 281.) Substantial compliance with the statutory requirements in condemnation proceedings is sufficient. ( Charleston and S. S. Bridge Co. v. Comstock, 36 W. Va. 263; 15 S. E. 69.) Need not expressly state they are unable to agree. (Id.) Where the petition avers a failure to agree it is sufficient. (Corey v. Chicago R. R., 13 S. W. Rep. 346.) Allegation of inability to agree is not jurisdictional. (Bishop v. Los Angeles Co., 87 Cal. 226; 25 Pac. 435.) There having been no motion for new trial, nor statement, all the findings by the lower court will be presumed to have been supported by the evidence, and where none appear to have been found on an issue it will be presumed that they were found, and were in favor of the respondent. ' (Mining Co. v. Bank, 7 Mont. 530; 19 Pac. 210.)
   PER CURIAM.

Proceeding by respondents (plaintiffs) to acquire a right of way over certain lands belonging to appellant (defendant) for a ditch to carry water to plaintiffs’ mining plant in J efferson county.

It is conceded that the Compiled Statutes of 1887 control. The petition alleges that petitioners own certain mining property and a certain water right; that their mining claim was so situated that it could not be conveniently worked without a flume or ditch to convey water for power purposes for a mill and concentrator of plaintiffs; that defendant is the owner of certain premises; and- that to convey water to petitioners’ property it is necessary that the plaintiffs should pass over and across defendant’s premises. Plaintiffs then make the following allegation:

‘ ‘That such right of way has not been acquired by agreement between your petitioners and the Basin Mining & Concentrating Company; that these petitioners understanding that the Basin Mining & Concentrating.Company feared, that if these petitioners were permitted to build said flume over their ground, the said defendant might be deprived of water for their concentrator, by reason of the appropriation of the water of Boulder Creek by these petitioners as above set out, made the following offer in writing to said Company on the 14th day of June, 1894, to wit: ‘In consideration that you will grant us the right of way for our ditch across the Hope, Darwin, Apache Chief and such other grounds of yours as it may be necessary for us to pass over with our ditch, we-agree that, in case our flume should at any time so drain the-river as to deprive your Company of an amount of water equal to that now carried by your ditch or flume now connecting said river with your sump or well, we agree to construct at our expense a covered ditch from our point of discharge to your present sump or well, equal in capacity to the flume now connecting the Boulder Kiver with said sump under your pump,’ — which said offer the said defendant rejected before-the filing of this petition. ”

Defendant demurred to this complaint, because it did not-allege that there was any attempt on the part of the plaintiffs-to agree with defendant as to said right of way and compensation, and hence did not state facts sufficient to constitute a cause of action. The demurrer was overruled. Defendant. Company then filed an answer, denying, among other things that there was ever any attempt made by plaintiffs, or any of them, to acquire any right of way over or across defendant’s-property by agreement between said plaintiffs and this defendant.

The replication did not deny this averment of a lack of agreement, but did deny the averments of the answer to the-effect that, if a flume was constructed over the right of way" plaintiffs sought, defendant’s property would be endangered.

Proof was taken, and the court decided that the petitioners were entitled to the right of way prayed for. The defendant. corporation appeals from the judgment.

The principle that the strict limits of all delegated authority by which one may take the property of another must be cautiously and accurately guarded, lest private rights be unnecessarily invaded, has been announced by this Court in Butte, A. & P. Ry. Co. v. Montana Union Ry. Co., 16 Mont. 504, 41 Pac. 248. It finds its application in this case, where a corporation’s property is sought to be devested by proceedings against its will. It makes no difference what the instance is, though, if one invoke the right to take private-property from its owner against his will, it can only be done-. pursuant to law, and to make the proceeding effectual there •must always be a rigorous compliance with the provisions of the statute, which points' out when, in what manner, and ••under what conditions the appropriation sought can be made.

(Cooley, Const. Lim. p. 649.)

It was provided by Section 1496, Fifth Div. Comp. St. of 1887, that if a mine could not be conveniently worked with■out a ditch to convey water thereto, and such ditch should necessarily pass over any mining claim owned by another, the ■first mine owner should have a right of way for his ditch over ¡such other claim upon compliance with the provisions of the Compiled Statutes pertaining to the right of way to mines. .Accordingly, plaintiffs were obliged to proceed under Section 1497, Fifth Div. Cómp. St. of 1887, which, as far as material, 'is as follows:

“Whenever the owner or owners of any mine or mining claim shall desire to work the same, and it is necessary to enable him or them to do so successfully and conveniently, that he or they shall have a right of way for any of the purposes mentioned in the foregoing sections; and, if such right of way shall not have been acquired by agreement between him or them, and the claimants or owners of the land or claims, over, under, across and upon which he or they seek to establish such right of way,' it shall be lawful for him or them to present to the judge of the district court of the Territory of Montana, within and for the county in which such right of way, or some part thereof, sought to be enforced 'is situated, •or to which such county is attached for judicial purposes, a petition, praying that such right of way be awarded to him or '.them,” etc.

This statute presupposes and. requires an attempt to agree between the owners of the mining claims before the rights to .present a petition to the judge of the district court can arise. (Matter of Lockport & Buffalo R. R. Co. 77 N. Y. 557.) The language of the statute imposes a necessity for trying to agree as a condition precedent, to be strictly observed, before The property of a mine owner can be taken. The object is, obviously, to give both parties every, fair opportunity of com- ■ ing'to terms as to the route to be selected, and the mode of using the proposed right of way, and the compensation to be-allowed, before instituting suit, which usually involves delay and costs. (Lake Shore & M. S. Ry. Co. v. Cincinnati, W. & M. Ry. Co., 116 Ind. 578, 19 N. E. 440.) Legislation of. this character also rests upon the doctrine of a reluctance on-the part of courts to award a remedy by eminent domain, harsh in its nature, where the same end can be effected by-contract between the parties. (Mills on Eminent Domain Sec.. 105.) Therefore it is that an effort to purchase the property-required is made a condition precedent to condemnation. So, by the statute, these plaintiffs, claiming authority under the-proceeding, must not only show affirmatively strict compliance-with the law, but, inasmuch as no proceeding at all is authorized until after an effort to agree has been made, the petition-must show the fact of such effort, and its failure. (Cooley’s Const. Lim. p. 619; Lewis on Eminent Domain, Sec. 357; Mills on Eminent Domain, Sec. 107; Randolph on Eminent-Domain, Sec. 326.) The attempt and failure to agree are-facts necessary to be averred in order to confer jurisdiction. (Matter of Boston H. T. & W. R. Co., 79 N. Y. 69; Clay v. Pennoyer_ C. Improvement Co., 31 Mich. 204; Toledo, A. A. & N. M. R. Co. v. Detroit, L. & N. R. Co., 62 Mich. 564, 29 N. W. 500; Reed v. O. & M. Ry. Co., 126 Ill. 48, 17 N. E. 807; Lieberman v. C. R. T. R. R. Co., 141 Ill. 140; 30-N. E. 511.)

It is not essential to state the facts concerning the negotiation, or to do more than to allege that the petitioners have-endeavored in good faith to come to an agreement with the defendants or owners owning or claiming to own or having estates or interests in the lands or premises over which right of way is sought, but that such efforts have failed by reason of the fact — if such be the truth- — that the owner asks what petitioner considers an unreasonable price, and refuses to accept the reasonable sum the petitioner has offered therefor. (Reed v. O. & M. Ry. Co., 126 Ill. 18, 17 N. E. 807; G. R. L. & D. R. R. Co. v. Weiden, 69 Mich. 572, 37 N. W. 872; Mills on Eminent Domain, Sec. 107.) No more expended allegations were made in State v. District Court Third Judicial District, 14 Mont. 476, 37 Pac. 7, where a petition to open a road across a mining claim under Section 1497, swpra, was entertained; and by general rules of pleading we cannot see any substantial reason for requiring particulars of the negotiations to be included in the petition.

But here we have a fatally defective complaint. The allegations of the plaintiffs is that there never was any agreement, and, fearing lest defendant might be deprived of certain water, they made an “offer” by which, if defendant would grant plaintiffs a right of way across its mining claims, plaintiffs, in consideration thereof, would give defendant any water it might need for certain of its purposes. This is not an averment of a past attempt to agree upon compensation for a right of way. It is merely a recital of what plaintiffs were willing to do to allay the apprehensions which they understood defendant had in case it should allow plaintiffs to build a flume across its property. It falls far short of the requirements of the law; and for lack of jurisdiction the district court’s judgment must be set aside.

Plaintiffs, in their replication, humorously allege that, if they are allowed to build the flume, they will make it secure, “and, like the deacon’s shay, they will make it strongest in the weakest point. ” It is not the plaintiffs’ flume, though, that this Court thinks should be made strongest in its weakest point, but the proceeding by which they can alone obtain the right to build the flume. However, as far as they have gone, their ease is truly like the deacon’s shay, — it has collapsed entirely, and, like the deacon, they are on the rock, for they are out of court.

“End of the wonderful one hoss shay,

Logic is logic, that’s all I say.”

Judgment JReversed.


source: Caselaw Access Project

author: HUNT, J.

license: Public Domain

text:
    MONTANA ORE PURCHASING CO., Respondent, v. BOSTON & MONTANA CONSOLIDATED COPPER AND SILVER MINING CO., Appellant.
    [No. 1,315.]
    [Submitted January 18, 1899.
    Decided February 13, 1899.]

      Mining Mights — Injunction—Judicial Discretion.

    1. Judicial discretion is not to be interfered with on appeal, unless it clearly appears that that discretion has been abused; but this is not to be interpreted as granting to the District Courts “unlimited discretion,” the exercise of which is not to be revised by the Supreme Court. Legal discretion must always be guided and controlled by certain legal principles.
    2. It was an abuse of discretion to deny a motion to vacate a temporary injunction in a mining suit, where defendant was working veins within its own ground, and there was a mere “chance” or “vague possibility,” that these veins might have their apexes within plaintiff’s property.

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

    Suit by the Montana Ore Purchasing Company against the Boston & Montana Consolidated Copper and Silver Mining Company. From an order denying a motion to dissolve a temporary injunction, and modifying the injunction, defendant appeals.
    Reversed.
    Statement of the case by the Justice delivering the opinion.
    Action in damages by plaintiff (respondent) against defendant (appellant) for ores extracted from certain mineral veins, the apexes of which the plaintiff claims to have. Defendant, by answer, put in issue all material averments of the complaint.
    Plaintiff claims ownership of the veins by reason of its ownership of certain portions of the Johnstown lode claim, and alleges that the veins upon which defendant was working have their apexes within plaintiff’s surface claims. The portions of the Johnstown owned by plaintiff are illustrated by the diagrams published in the case of Montana Ore Purchasing Co. v. Boston c& Montana Consolidated Copper c& Silver-Mining Co., 20 Mont. 336, 51 Pac. 159. Reference to these-diagrams shows that the ground owned by plaintiff is a strip-only of the Johnstown lode claim, running northwest and southeast. The other portions of the Johnstown are owned by defendant. Included in such other portions, and towards the southwesterly end, is a strip lying south of the plaintiff’s ground, and north of the Pennsylvania lode claim, all of which is defendant’s property. To the east of this piece of the Johnstown, and north of defendant’s Pennsylvania claim, lies-a strip of mining ground known as the 1 (Snow Bird, ’ ’ the-property of the Anaconda Mining Company. When this action was begun, defendant was mining within the limits of the Pennsylvania lode claim, at a point some >600 feet distant from the surface line of plaintiff’s property.
    On ex parte application of plaintiff, defendant was first enjoined by temporary order from entering upon or working-any veins within a vertical plane drawn downward at the surface, one through the east end line of the Johnstown claim, and the other through the west end line of that portion of the Johnstown owned by plaintiff, which line lay in the.direction of S., 25 deg. W., 235 feet, continuing southerly so as to-intersect the veins or lodes lying southerly from the Johns-town claim, and having their apexes therein, and which underlie a plane drawn at an angle of 40 deg. from the horizontal from the north line of the Pennsylvania claim.
    Upon motion to vacate the injunction order, a hearing was had. The motion was overruled, but the first order was modified by temporary restraining order enjoining defendant-from mining upon that certain vein designated by defendant as its vein No. 3, and from extracting ore from all veins-within the Pennsylvania lode claim lying north of said vein No. 3, and from the continuations of said veins as claimed by plaintiff to the west. The injunction order recited, further, that the modified order applied only to such vein or ore bodies above mentioned within the Pennsylvania lode claim and to-the south thereof, and all the portion thereof which lay between a plane passed through the east end line of the Johns-town lode claim, extended to an intersection therewith, and a plane drawn through a west end line of the portion of the Johnstown owned by plaintiff, continued in its own direction until it intersects the west end line of the Pennsylvania lode claim, or that line produced. The diagrams serve to bfetter illustrate the position of the several claims referred to. There was a further modification, by which defendant was not prevented from doing development work, but was required to store all ore extracted.

      The injunction order also contained the following command: “It is further ordered that you, the said defendant, your officers, attorneys, agents, servants and employes, and all persons acting through or under you, be, and you are hereby, enjoined from commencing or prosecuting any action in law or equity against this plaintiff for or in respect to the several matters alleged in its complaint, or for and in respect to the ownership of the vein, lode and deposits of ores lying within the above-mentioned boundaries and plaintiff’s claim of right thereunder, until the further order and judgment of this court. ’ ’
    Defendant appeals from the order denying the motion to dissolve and modifying the temporary injunction.

      Forbis and Evans and Wm. H. De Witt, for Appellant.
    Citing: Sherman v. Clark,, 4 Nev. 138-, Lyonv. Woodman, 7 M. R. 493; St. Louis M. <& M. Go. v. Montana Mining Go., 58 Fed. 129; Mexican Ore Go. v. Mexican G. Mining Co., Ml Fed. 357; 10 Ency. of Pleading and Practice, Title “Injunctions, ” 'pp. 988 and 992, and notes; Liovoley v. Van Benthuysen, 16 Wend. 373.

      B. B. Smith, John J. Mediation and Glayberg efi Gorbett, for Respondent.
    Citing: B. M. Gon. Mm. Go. v. M. O. P. Co., 89 Fed. 529; Boyd v. Des Dozier et al., 52 Pac. 533; Ileinze v. B. ck M. Co., 52 Pac. 273; Tyler Mining Co. v. Last Chance Mining Co., 90 Fed. 18.
   HUNT, J.

Defendant, on the motion to dissolve, after introducing maps showing the relative positions of the veins and claims involved, put in its evidence which consisted principally of the testimony of mining engineers who are in charge of and familiar with the workings of the Pennsylvania and other of defendant’s lode claims. From their testimony we collect the following: When this action was brought, defendant was working in No. 3 vein, as shown on the diagram, on the plane of a section 621feetfrom the Pennsylvania claim, at the point where No. 3 vein is nearest to the north side of the Pennsylvania claim. Upon the trial of a suit entitled “Morse v. The Montana Ore Purchasing Company,” pending in the Federal Courts, this plaintiff had designated a tract of country, indicated on the map, as a mineralized zone having its apex in the plaintiff’s Rarus claim, but such zone lay east of defendant’s No. 3 vein, which was not one of the veins of such zone. Plaintiff’s witnesses had sworn to this effect in said former suit, and had claimed that the hanging wall of such zone was quite a distance north of defendant’s No. 7 vein, as shown on the diagram used. Witnesses said that No. 3 vein would probably have its apex 600 feet south, and No. 7 also many feet south, “of any ground owned by plaintiff; that plaintiff had never done any development work to demonstrate where the apex of the vein they claim is; that, on the trial of the above referred to suit in the Federal Court, plaintiff’s witnesses had sworn that in the Pennsylvania shaft, close to the end line where a crosscut had been driven, there was no vein, and defendant’s experts said on this hearing, if that were so, it would be impossible for the apexes of the No. 3 and No. 7 veins to come within plaintiff’s ground at all. Witnesses also said that a 40 degree line, as fixed by the court’s order, cut right through No. 7 vein, and all that portion of the vein beneath the line could not be worked; that the crosscuts shown upon a section map introduced (marked “L-L”) ran right in the hanging wall rock of the zone as claimed by plaintiff, and that the 40 degree line is steeper than the veins, and. would intercept the section in which No. 3 vein would lie.

The cross-examination elicited that, so far as any veins showed which were developed by the plaintiff towards the surface lying east of the west end line of the Johnstown, they had their apexes in the plaintiff’s ground; that the strike of No. 3 vein on the 600-foot level underneath the Pennsylvania surface, as compared with the direction of the Johnstown side line, is approximately parallel, and the apex of said No. 3 vein would lie very close to-the south side line of the Pennsylvania claim; that in the trial in the Federal Court defendant’s contention was that there was nothing to justify the theory of a zone, but, if there was a zone, it would embrace the whole of Butte City; that some of the stopes made on the ore body had one dip, others another; some of the ore bodies were vertical, others dipped 45 degrees to the south; that there are two veins between what had been termed the east and west faults — one with a dip of about 65 degrees, the other of 40 to 45 degrees; that, in places, the vein or veins had a flatter dip, and, following a flat vein to the south on the dip, it would not reach No. 3 and No. 7 veins, but go to the west of them; that there are several faults down in the Pennsylvania claim; that in some places the apex of the vein is 1,000 feet below the surface, but that at one point it is cut by the 40 degree line.

It was also testified to that the apex of.the zone claimed by plaintiff is 130 feet on the west end line of the Johnstown, and 300 feet on the plane of the east end line thereof; that it had been claimed by some of plaintiff’s engineers in the Federal suit that a crosscut that had been run south from the hanging wall was all in country rock; that others had said there was a small vein up near the north end, but that in its course south there was no vein; that neither of the veins Nos. 3 or 7 had an apex in that portion of the Johnstown owned by plaintiff; that the dip of the Pennsylvania No. 1 vein from the 400 level to the 500 is about 45 deg., but further east it is a little flatter, so that the plane established by the injunction order would in depth certainly interfere with the defendant’s veins, no matter whether the upper portions stood straighter and were above the plane; that at one point in the neighborhood of the Pennsylvania shaft the dip of one vein is 60 degrees; that between the two main fault planes in that country near the surface there is generally crushed and broken-up matter, but below the 350-foot level are apparently two well defined veins — the one to the north considerably steeper than. the south one, with a dip to the one of about 38 degrees, in places flatter; that if No. 3 vein were taken at, say, the 600 level, and a line projected to the surface at 50 degrees, it would come out in the Pennsylvania lines; that there is a difference of from 100 to 200 feet to the surface of the ground between the north and south side lines of the Pennsylvania and, if a 38 degree dip were taken, veins Nos. 3 and 7 would be intersected considerably below the points where they are developed; that the apexes of both said veins are beneath the fault in the west drift; that one fault dips southwest; and that the injunction plane line would presently cut any vein lying at a greater angle than 40 degrees south, including the Pennsylvania vein No. 1, where the vein faults below the 400-foot level, the fault passing through the 400-foot floor west of the Pennsylvania shaft.

On the part of plaintiff, the evidence of its engineers was that it is impossible to tell where the ore bodies included in the Pennsylvania claim do apex; that ore bodies are to be found in- the Pennsylvania underlying a plane drawn through the north side line of the Pennsylvania claim, and extended to the south at an angle of 40 degrees. These ore bodies lie comparatively flat, particularly on the west side of fhe ep.st • fault, and veins Nos. 3 and 7 may have their apexes in the Johnstown and in all probability they do. These veins have a much flatter dip on the west than on the east side of the fault, as they seem to change their dip passing through the fault. The east fault intersects the veins. No. 3 has ore on both sides of the fault, and the dip on the west side of the fault is much flatter, dipping 40 to 45 degrees. Witnesses further stated that all the veins that have apexes on the Johns-town further north dip underneath the Pennsylvania; that considering the dip of the veins within the side lines of the Johnstown, and the dip of the vein west of the east fault, No.' 3 vein would probably reach the Johnstown claim; that No. 7 vein certainly has its apex within the Johnstown side line; that the east fault, if followed to the surface, might cut the lower corner of the Pennsylvania, but the fault would generally be entirely east of the Pennsylvania claim; that no apexes had been discovered which could be connected with No. 3 or No. 7 veins, there having been no development near the surface of any of these veins that shows their apexes at all; but that there is nothing in the Pennsylvania claim which shows with certainty where the apexes of Nos. 3 and 7 are.

On cross-examination it was developed that all of the ore streaks lying above a certain point in one the faults have about a 40 degree dip; below that they are straighter. It was-also testified to by plaintiff’s witnesses that in the No. 3 vein there were places where it was intersected by the east fault; that there was a crevice deemed a clay seam; that all of the ore streaks to the west of the clay seams in the Rarus have a very flat dip, approching 35 degrees in places; that the strike of No. 3 vein is about parallel to the side line of the Johns-town’s side line, so far as the workings on the 600 and 700 foot levels show; that, if No. 3 vein were continued on its present strike and dip, the chances are the cropping would be to the north of the Pennsylvania north side line; that the workings disclosed and lying west of the east clay seam or fault, and made from the Rarus shaft, indicate that the apexes are in that part of the Johnstown owned by plaintiff; that the drift run on the 600 level of the Pennsylvania, supposed to be on the No. 7 vein, is practically in the locality where a drift, to be made following the vein from the Johnstown surface by plaintiff, would reach down to the No. 7 vein at the 600-foot level; that there was a fault in No. 3 vein on the 700 level; that No. 3 “had a very good chance” of having its apex in the Johnstown; and that, if what plaintiff’s witnesses called the “fault vein” did not cut the 3 and 7 veins so they could be followed, “you would pass through the clay seam into what you call the vein, and pass into the Johnstown ground.”

In reviewing this case, we have not lost sight of the established rule that the granting or denying of a temporary restraining order by a district court or judge, in mining suits particularly, is a matter of judicial discretion, not to be interfered with on appeal, unless it clearly appears that that discretion has been abused. We affirm that general doctrine, but do not interpret it as granting to the district courts an unlimited discretion, the exercise of which is not to be revised by the Supreme Court of the State. The right of appeal from an order refusing to vacate a temporay order involves the right to have this tribunal review the facts upon which the lower court assumed to exercise judicial discretion, to the end that we shall decide finally whether or not from the decision made by the district court, considering the nature, circumstances, and facts of the case, there has been an exercise of that judicial discretion alone comprehended in law. There is no hard and fast rule governing discretion; if there were discretion would have no place; yet no discretion contemplated by the law can be wisely exercised, unless it be guided and controlled by certain legal principles. These principles have as a foundation the surer doing of equity between parties. The exercise of the power of a judge to say injunction shall or shall not issue, without regard to the grounds upon which that power may be exercised, is not judicial discretion. The regulation of the power must always be by the judgment of the court or judge upon the case before him, rather than by his humor to exert the great power he possesses. If the discretion bé of the one kind, it is not to be interfered with; but if it be of the other it will be reviewed and overturned, as not appearing to have been made on grounds which find legal reason and support.

In this case it appears clearly to us that the court abused its discretion. The evidence discloses that defendant was working within its own ground, and upon veins which have their apexes within its pwn ground. The plaintiff’s own witnesses frankly said there was not sufficient development made by plaintiff at the time of hearing on this motion for them to say that the apexes of the veins are within plaintiff’s ground. The mineral zone referred to in the testimony did not apparently warrant the claim by plaintiff to the veins involved herein, inasmuch as plaintiff’s experts had admitted on another trial that, although the zone had been examined to a great depth, it did not show these particular veins as part of it. A mere “cAimce” that the veins might have their apexes within plaintiff’s property is really the only foundation for the injunction order restraining defendant from working the veins within the limits of its own ground; but this “chance” is far too. shadowy to warrant a continuance of the order, when we consider the fact that plaintiff’s engineers had theretofore testified that these veins did not constitute part of the zone which had its apex in plaintiff’s ground, and that no changed conditions appeared to exist since their former opinions had been expressed, to warrant their now saying differently.

There is nothing substantial in the evidence of plaintiff from which the district court could judge that plamtiff was probably right, and that injury would follow a denial of the restraining order pending the determination of the suit. In-j unction orders should not be kept in force, and parties denied the right of working their own mines, upon the vague possibilities that veins within their claims may have their apexes in another owner’s ground, — in other words, the writ is not solely for the purpose of preserving the property in statu quo, and it will not be granted for that purpose only, unless the party seeking it shows that, if it be not granted, real injury will probably ensue to his rights. A fortiori, it should be dissolved where the party enjoined is within the limits of his own possession, and clearly shows that there is no reasonable probability of his trespassing on plaintiff’s property. Nothing in Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53, or Heinze v. B. & M. Co., 20 Mont. 528, 52 Pac. 273, conflicts with our •opinion herein, for the facts in those cases were entirely different. So much for the question of discretion.

As what we have said is decisive of the questions before us, we need not consider the unusual order of the court enjoining •defendant from commencing or prosecuting any action at law ■or in equity against this plaintiff in respect to the several matters alleged in plaintiff’s complaint, or for or in respect to the ownership of the veins lying beneath the plane established by the court’s order, until the further order of the court. No showing was made to justify such a clause in the injunction •order, and we know of no authority in the court to make it. We advert to this point merely as going to show that, upon the whole case, the district court has violated the plainest rules which confine its power within the bounds of law and ¡sound legal discretion. (Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co., 21 Mont. 539, 55 Pac. 112.)

The order denying the motion to dissolve and modifying the temporary restraining order issued is reversed, and the cause is remanded for further proceedings, with directidns to dissolve the temporary restraining order heretofore issued.

Reversed and remanded.

Brantlt, C. J., and Pigott, J., concur.


author: BRANTLY, C. J.

text:
    POWER, Respondent, v. LENOIR et al., Appellants.
    [No. 1,004.]
    [Submitted January 19, 1899.
    Decided February 13, 1899]

      Motion for New Trial — Notice of Intention — Review—B.ate- ' ment — Reservation of Objection — Limitation—Minors— Guardian ad Litem — Appointment—Nunc pro Tunc Order — Validity.

      1. A party submitting amendments to a statement on a motion for a new trial may reserve bis right to object to the settlement or consideration thereof on the ground that the statement was not served in time.
    2. The time for giving notice of intention to move for a new trial in an equity ease begins to run from notice of the decision by the court, and not from the return of special findings submitted to a jury.
    3. Where the statement on a motion for a new trial was not served within ten days after notice of intention to move therefor, as required by Code of 'Civil Procedure, Sec. 1173, Subd. 3, and the time was not extended by stipulation or otherwise, no question presented by the statement can be considered on appeal.
    4. Probate Act 1887, Sec. 358, provides that, before the appointment of a guardian for a minor takes effect, the person appointed shall give bond with sufficient sureties. Section 351 authorizes parents to select guardians for their children, but section 362 requires persons so selected to qualify, the same as other guardians. Held, that where a father assumed to act as guardian for his minor children without having qualified, and appeared for them in an action concerning property devised to them by their mother, the minors, though legally served, were not bound by the proceedings.
    5. Where a father appeared as guard'an for his minor children without having qualified as their guardian, and defended an action against them with reference to their separate property, a nunc pro tunc order appointing him their guardian ad litem before judgment rendered against them was unauthorized, and they were not bound by the judgment so entered.

      Appeal from District Court, Lewis and Clarke County/ ILenry N. Blake, Judge.

    Action by T. C. Power against B. O. Lenoir and others. From a j udgment for plaintiff, and from an order denying a new trial, defendants appeal.
    Beversed.
    Statement of the case by the Justice delivering the opinion.
    This suit was brought for the purpose of setting aside a conveyance by the defendant B. O. Lenoir to his wife, Margaret Ann Lenoir, of certain lots situate in the city of Helena, Lewis and Clarke county, Montana, and also to avoid a will made by .Margaret Ann Lenoir, with her husband’s.consent, in favor of her two daughters, Bessie and Bernice Lenoir, giving them the entire property. The amended complaint alleges, substantially, that on January 17, 1888, the plaintiff and B. O. Lenoir entered into a contract by which Lenoir leased from him a portion of the Steamboat Block, in the city of Helena, Montana, for a term of three years, at a monthly rental of $235, payable in advance; that for the purpose of avoiding the payment to plaintiff of the rents to fall due on November 1, 1890, and thereafter until the expiration of his lease, and for the purpose of cheating and defrauding his creditors and putting his property beyond the reach of execution, he conveyed to his wife, Margaret Ann Lenoir, through a trustee, the property in controversy; that the same was then worth $15,000; that he also at the same time transferred to her notes and securities worth §2,000; that this conveyance and transfer were-claimed by Lenoir and his wife to have been made for a consideration of §3,000, moneys theretofore advanced by Margaret Ann Lenoir to her husband, but that in fact this claim was false, and that the conveyance and transfer were made without consideration; that an action was brought by plaintiff against the said Lenoir on November 1, 1890, in the District Court-of the First Judicial District at Helena, Montana, for the purpose of recovering the rent then due under the lease, and to fall due from that time to May 1, 1891, and that on May 1, 1891, a judgment was duly entered in that cause in favor of plaintiff and against the defendant for §2,082.80; that'on May 27th thereafter an execution upon the said judgment, put into-the hands of the sheriff of Lewis and Clarke county, was returned wholly unsatisfied, for the reason that no property belonging to the said Lenoir was to be found in Lewis and Clarkecouuty; that after the said judgment was so entered the said Lenoir, his wife then being in failing health, caused and directed her to make and execute her will bequeathing all of ■ said property, as well as all other property belonging to her, to their daughters, Bessie and Bernice, he himself consenting thereto in writing, thus intending further to cheat, hinder and. defraud his creditors, and particularly the plaintiff; that under said will he was given full authority to dispose of all the ■ said property as he saw fit; that on July 30, 1891, the said Margaret Ann Lenoir died, and that the said husband was by the District Court at Helena, on October 3, 1891, upon.his own application, duly appointed executor of said will; that he was - thereafter by the same court appointed guardian of the two defendants, Bessie and Bernice, and that he is now acting as • both such executor and guardian; that the defendant Lenoir has no property that can be reached by execution; that the-•deed from himself to his wife was properly recorded in the ■office of the clerk and recorder of Lewis and Clarke county, .and that both said deed and will are a cloud upon the title of the property conveyed and bequeathed thereby, and prevent the plaintiff from realizing the amount of his said judgment; that the said children, Bessie and Bernice, claim an interest in the property, but that in fact they have none, except under •the said deed and will; that all of said property was so deeded by Lenoir and bequeathed by his wife to the said Bessie and Bernice Lenoir with intent in himself and wife both to cheat and defraud the creditors of Lenoir, and to hinder the plaintiff in the collection of his judgment; and that Lenoir threatens to dispose of all the property for the purpose of appropriating 'the proceeds to his own use.
    Lenoir made answer on September 21, 1892, to the original •complaint herein, in his own behalf and as executor, and also .as guardian of the children. Upon answering the amended ■complaint he answered generally for all the defendants, without designating himself either as executor or guardian. He took issue upon all the allegations of the complaint, except "those as to his executorship and guardianship, the recovery of judgment by plaintiff, and the value of the property conveyed by his deed, which he placed at $3,000.
    At the trial, on December 21, 1896, special interrogatories were submitted to a jury, which found, substantially: That the property was conveyed by Lenoir to his wife with intent to hinder, delay and defraud plaintiff; that the consideration .for the deed was $2,900; that the property was accepted by his wife with intent to hinder, delay and defraud plaintiff; and that the will was thereafter made by his wife for the purpose, both on her part and that of Lenoir, to hinder, delay and defraud plaintiff.
    Upon the coming in of these findings the defendants objected to the entry of a judgment thereon, because upon the trial it had appeared in proof that Bessie and Bernice Lenoir were minors, that B. O. Lenoir had never been appointed their .guardian, and that there was no proof in the record that they had ever been served with process to bring them properly into-court. The court thereupon took the findings under advise-ment, with defendants’ objections. The proof upon the trial showed that B. O. Lenoir had been appointed guardian of the-minors, by the District Court at Helena, Montana, on October 3, 1891, but that he had failed to give bond and qualify as such guardian as provided by law. The proof in the record of service of process upon the minors consisted of an alias summons, issued after an order of publication had been properly made-under • the statute providing for publication of summons for ■nonresident defendants, with an affidavit by Charles P. Russell that he had made service of a copy of the summons and', complaint upon B. O. Lenoir and Bessie and Bernice Lenoir, then residing together at Fort Sully, South Dakota. This affidavit was sworn to before Stephen C. Mills, “1st Lieut.. 12th Infty., Judge Advocate, General Court Martial.”. It-was dated July 23, 1892, — a short time after the original-complaint was filed. While the court so had the matter under-advisement, and on January 18, 1896, the plaintiff was permitted, without notice to defendants or their attorney, to file-a supplemental affidavit by the same Charles P. Russell, setting forth the facts of his service on defendants on July 23, 1892, and sworn to before Francis De Pfuhl, a notary public in and for the County of Cook, State of Illinois. Both affidavits were sufficient in substance and form.
    During the trial it appeared that B. O. Lenoir had never-qualified as the general guardian of the minors, Bessie and Bernice Lenoir, in that he had failed to give his bond as such. It did appear, however, that he was in the possession and control of the property of said minors, and had from time to time made his reports as guardian to the District Court at Helena of his receipts and expenditures in the management of the estate.. After having had the findings under advisement until February 3, 1896, the court, on motion of counsel for plaintiff, and apparently in the absence of counsel for the defendants, appointed B. O. Lenoir guardian ad litem for the minors, directing the order of appointment to be entered ‘ ‘mine pro tunc
      as of the date the said B. O. Lenoir appeared and filed his answer in said cause as the guardian of said minors, to wit: 21st day of September, 1892.” On the same day, without other proceedings, the findings of the jury were adopted; and the court, overruling defendants’ objection to its entry, entered judgment for the plaintiff against all the defendants, setting-aside the deed and will, and directing the property to be sold to satisfy plaintiff’s judgment. From this judgment, and from an order of the court overruling their motion for a new trial, the defendants appeal.

      T. J. Walsh, for Appellants.

      Walsh dt Newman, for Respondent.
   BRANTLY, C. J.

Counsel for plaintiff object to the consideration by this Court of any question presented by the motion for a new trial, and ask to have the statement stricken out on two grounds: That the notice of intention to move for a new trial was not given in time, and that the statement was not served in time. The facts appearing in the record are that the attorney for defendants served a notice of intention on the attorney for plaintiff on December 28, 1896, within seven days after the findings by the jury were made and filed. Nothing further was done under this notice. It was not filed with the clerk. On February 4th, defendants’ attorney gave notice to counsel for plaintiff that the court on February 3d had formally adopted the findings of the jury and entered judgment for plaintiff. On February 11th defendants’ attorney properly served and filed with the clerk another notice of intention to move for a new trial. On March 21st he served his statement upon counsel for plaintiff, who thereupon submitted amendments, but, before doing so, reserved their right to object to the settlement of the statement, or any consideration of it, because it had not been served in time. It is not disclosed whether the amendments were agreed to by the defendants’ counsel or not. On April 8th the court settled the statement, incorporating therein ail amendments proposed by plaintiff’s counsel, except one, and also his objections to the settlement. This was done, without notice. No stipulation was made between the parties, nor order of court, extending the time for serving the statement. The motion for a new trial was overruled on June 22, 1896.

Plaintiff’s objections to the statement were properly reserved. (Sweeney v. G. F. & C. Ry. Co., 11 Mont. 34, 27 Pac. 347.) Counsel insist that, to have any efficacy as a basis for a motion for a new trial, the notice of intention should have been served and filed with the clerk within 10 days after December 21, 1896; citing Code of Civil Procedure, Section 1173. We do not think this position tenable. This cause is one involving questions cognizable in equity only. The parties are not entitled in such cases to a trial by jury. If the court calls a jury to aid in the trial, the findings made by the jury are advisory only. The judgment must emanate from the judge. The jury serves to enlighten his conscience, not to control his judgment. The trial isa trial by the judge, and the decision reached is his. He will adopt the findings of the jury, if they satisfy his conscience; otherwise, he will disregard them and make such findings as will do so. (Gallagher v. Basey, 1 Mont. 457; s. c. on appeal, 20 Wall. 670; Mantle v. Noyes, 5 Mont. 274, 5 Pac. 856; Beck v. Beck, 6 Mont. 318, 12 Pac. 694; Leggat v. Leggat, 13 Mont. 190, 33 Pac. 5; Zickler v. Deegan, 16 Mont. 198, 40 Pac. 418; Lawlor v. Kemper, 20 Mont. 13) 49 Pac. 398.) In states where this doctrine prevails, the rule is that the notice of intention must be served within 10 days after the parties have notice that the court has announced its decision and directed judgment. (Haynes, New Trials & App. Secs. 18, 234.) While objecting strenuously to this doctrine, the learned author last cited (Section 234, supra) states that the great weight of authority is in its favor. The doctrine announced in the cases supra having become the settled rule in this State, the time for giving notice, therefore, begins to run from notice of the decision by the court. The notice of intention served m this cause was therefore clearly in time. But we cannot say so much for the statement. In the absence of a stipulation between the parties, or an order of court, extending the time, it should have been served within 10 days from February 11th. (Code-o-f Civil Procedure, Section 1173, Subdivision 3.) This was-not done. Therefore this Court must disregard the statement and all the questions sought to be presented thereby.

But, notwithstanding the statement on motion for a new trial cannot be looked to for any purpose, a separate bill of' exceptions is contained in the record, which was used on the motion for a new trial. In this defendants preserved their objections and exceptions to the action of the court in adopting the findings of the jury, while there was no proof in the-record that the defendant minors, Bessie and Bernice Lenoir, had been properly served with process and in appointing B. O. Lenoir their guardian ad litem, and then entering judgment against them without further proceedings looking to an appearance for them.

For the purposes of this investigation it is not necessary to-decide whether, under the provisions of our statute (Comp. St. First Div. Sec. 74), it was the fact of the service of summons, or the filing of the proof in the record that gave the court jurisdiction over the persons of the minors; for, while it is true that the affidavit made by Charles P. Russell before an officer of the United States army was no proof of such service (Id. Sec. 673), the supplemental affidavit filed on January 18, 1896, supplied the necessary proof, and from that time the record was complete. We shall only consider the action of the court with reference to the appointment of the guardian, for upon the action of the court below in this regard rests-the integrity of the judgment rendered.

The Compiled Statutes of 1887, in Sections 9 and 10 of the First Division, provide:

Section 9 : “When an infant is a party he shall appear by guardian, who may be appointed by the court in which the action was prosecuted, or by a judge thereof, or a probate judge.”

Section 10 : “The guardian shall be appointed as follows:: * * * When the infant is defendant, upon the application of the infant, if he be of the age of fourteen years, and apply within ten days after the service of the summons; if he be under the age of fourteen, or neglect so to apply, then upon the application of any other party to the action, or of a relative or friend of the infant. ’ ’

The Probate Practice Act of 1887 provides:

Section 351 : “The probate judge of each county, when it appears necessary or convenient, may appoint guardians for the persons and estates or either or both of them, of minors who have no guardians legally appointed by will or deed and who are inhabitants or residents of the county, or who reside without the territory and have estate within the county. * -X- *5 5

Section 358 : “Before the order appointing any person guardian under this chapter takes effect, and before letters issue, the judge must require of such person a bond to the minor, with sufficient sureties, to be approved by the judge, and in such sum as he shall order, conditioned that the guardian will faithfully execute the duties of his trust according to law. * * *”

Section 362 : “Every testamentary guardian must give bond and qualify, and has the same powers and must perform the same duties, with regard to the person and estate of his ward, as guardians appointed by the probate court, except so far as their powers and duties are legally modified, enlarged or changed by the will by which such guardian was appointed. ’ ’

Section 363 : “Nothing contained in this chapter affects or impairs the power of any court to appoint a guardian to defend the interest of any minor interested in any suit or matter pending therein. ’ ’

Section 368 : “Every guardian must settle all accounts of the ward and demand, sue for, and receive all debts due to him; * * * and he must appear for and- represent his ward in all legal suits and proceedings, unless another person is appointed for that purpose as guardian or next friend. ’ ’

All these provisions are copied, substantially, into the Code of 1895. (Code Civ. Proc., Sections 574, 575, 2957, 2959, 2960.)

Under the provisions of Sections 9 and 10, supra, a minor can appear in a suit only by guardian. Under the provisions of the Probate Practice Act (Section 368 supra), a general guardian may — indeed, he must — appear for his ward in all suits and other legal proceedings and make proper defense, unless the court appoints some other person for that purpose. B. O. Lenoir, the father of these minors, did appear for them as their general guardian; but was he their guardian? Under the facts appearing in this record he was appointed such by the order of the District Court at Helena on October 3, 1892. He acted as such until the trial of this'cause, by controlling the property of the minors, and filing his accounts with the court under the legal requirement, but he had failed to give bond before entering upon his duties. Counsel for plaintiff insist that his appointment and recognition by the court so far constituted him the legal guardian that his acts are valid and binding upon his wards. We are aware that it has been held by the Courts in some of the states that the giving of a bond is not indispensable to the validity of the acts of the guardian. The decisions are not in harmony. In Alabama, Georgia, Kentucky and North Carolina it has been held that a failure on the part of the guardian to comply with the statute in this regard does not impair the validity of his acts, and the judgments of the courts based upon them. (Cuyler v. Wayne, 64 Ga. 78; Leatherwood v. Sullivan, 81 Ala. 458, 1 South. 718; Ex parte Maxwell, 37 Ala. 362; Howerton v. Sexton, 104 N. C. 75, 10 S. E. 148; Mobberly v. Johnson’s Ex'rs, 78 Ky. 273.) But the great weight of authority sustains the view that the provisions of such statutes are mandatory and that a neglect to comply with them renders void all acts of the guardian, in so far as they conclude the rights of the wards. (Pryor v. Downey, 50 Cal. 388; Murphy v. Superior Court, 84 Cal. 592, 24 Pac. 310; Wadsworth v. Connell, 104 Ill. 369; Wuesthoff v. Insurance Co., 107 N. Y. 580, 14 N. E. 811; Hatch. Ferguson, 57 Fed. p. 969; Woerner, Guardianship, Sec. 39).

Hatch v. Ferguson, supra, was a suit brought by the minor heirs of Ezra Hatch, deceased, by n'ext friend, to avoid a judicial sale of lands bequeathed to them by their father. One Hewitt had instituted suit in 1891 to sell the land for partition purposes, claiming to be the owner of an interest therein. The minors were made defendants as the owners of other interests. They were served with process. -Ferguson appeared for them as their guardian. He had been appointed by the proper court, and was acting as their guardian, but had never given bond. The provisions of the Code of the Territory of Washington then in force are very similar to the sections of the Probate Practice Act cited supra. A decree was rendered by the Superior Court of Washington directing the sale of the lands as prayed for, and Hewitt became the purchaser. After-wards he conveyed to innocent parties. In passing upon the validity of the acts of Ferguson as guardian, Justice Hanford said: “These provisions of the statute are, in my opinion, mandatory, and the giving of a bond is prerequisite to the assumption by any person of the guardianship of minors in this state, whether under an appointment by will, or by the court having probate jurisdiction.” This cause was heard in 1895 by the Circuit Court of Appeals. (15 C. C. A. 201, 68 Fed. 43.) Judge Gilbert, who delivered the opinion, said, in construing these statutory provisions: “It was evidently contemplated that in the creation of guardianships two steps, equally indispensable, should be taken: First, the appointment; second, the giving of the requisite security by the guardian só nominated, — and that the appointment without the bond, and the bond without the appointment, would be equally impotent to create the official relationship of guardian and ward. It is not the policy of the statute to extend to the purchaser at a guardian’s sale the protection which in many instances is accorded to the innocent purchaser. The protection of the minor is deemed of the first importance. It is intended that the purchaser of the minor’s property shall be placed upon inquiry to ascertain that the antecedent steps have been taken in accordance with the law. It is.within the power of all to know whether the person who assumes to act as guardian is in fact clothed with the powers of that office. An inspection of the record in this case would have shown that Ferguson could not lawfully represent the Hatch heirs without first giving a bond, and that he had wholly failed to comply with the law in that regard. Notwithstanding the judgment of the probate court appointing the guardian, and the judgment of the superior court decreeing and confirming the sale, his acts are void, and may be so declared in any court having jurisdiction of the subject-matter and the parties to the suit.”

In Wuesthoff v. Insurance Co., supra, the Court construed the statute of New Jersey which provided “that every guardian appointed by last will or testament should before the exercise of any authority declare his acceptance to the proper court and give bond in such sum as the court might order, unless it was otherwise directed by the will.” Andrews, J., in delivering the opinion, said: “Obviously, the object of the legislature in requiring the guardian to give security was the protection of the ward. The legislature was dealing with the interests of a class especially entitled to the protection of the law. It was a wise safeguard to require that a guardian, before intermeddling with the estate of the ward, should give security for its faithful administration, unless the parent dispenses with this precaution. ’ ’

Section 358 of our probate law plainly and positively provides that before the order appointing any person guardian takes effect, and before letters issue, the judge must require of such person a bond to the minor, with sufficient sureties. The intention of the legislature could hardly have been more plainly manifested. From the other sections of the statute cited supra, it appears that it did not even deem it wise to allow the parent to relieve the guardian of this duty by testamentary direction; for, though a provision is made recognizing the right of parents to select by will the person to whom they wish to intrust the care of their children and their estates (Section 351, supra), yet it requires such person so selected (Section 362) to give bond and qualify as other guardians. It is not, therefore, the recognition by any court of the relation of guardian and ward that gives it validity, but the fact that the relation has been properly established by a compliance with the requirements of the law. A person who purchases the property of a minor, or who seeks to devest him of title to his property, will not be heard to say that the minor is estopped and concluded by the irresponsible acts and doings of some person who has presumed to act as his guardian without first giving the minor the protection and security the law requires for him. It is true, the self-appointed guardian will not be heard to say that he is not responsible to his ward for .intermeddling with the ward’s property. He will be held to strict account, but no act on his part will in any wise prejudice the rights of the ward. The latter is, so to speak, the special favorite of the courts, and the courts will always see that his rights are protected. The appearance in this case of the defendant B. O. Lenoir on behalf of the minor children was unauthorized. Anything done in that behalf by him is of no avail to bind or conclude them.

hi or do we think his appointment as their guardian ad litem, in his absence, on February 3, 1896, and the entry of judgment without any other appearance for them, a sufficient compliance with the law. It was an attempt to give force and ■efficacy to proceedings which up to that time, and so far as the minors are concerned, were utterly void. The order nunc pro tunc could give no validity to proceedings which had ro validity. So far as the court knew, the minors were not before it by proper process, and during the trial it became apparent that they had made no proper appearance. It cannot be maintained upon any correct principle that the mere putting into the record the proper proof that process had been served upon them nearly four years before, and the appointing a person guardian ad litem, in his absence, by an order relating back to the time of his first unauthorized appearance for the minors, was in any sense of the word a proper defense for them.

The court may in all proper cases enter orders and judgments mine pro tunc. It is a matter of frequent occurrence. It is á necessary practice to secure to litigants their rights and prevent injustice. Cases are not infrequent where this has been done after the lapse of many years. (Parrott v. McDevitt, 14 Mont. 203, 36 Pac. 193, and authorities cited; Territory v. Clayton. 8 Mont. 1, 19 Pac. 293.) The cases in which the court will do this are of two classes: The first consists of those in which one of the parties dies after the verdict has been rendered, or the cause submitted for decision, and it is necessary to enter the judgment as of the date of the submission of the cause, to prevent injustice. This is done because the delay is caused by the court, and the suitor is not to be injured thereby. The second class is composed of those, cases where an order or judgment has actually been made or rendered by the court, but, by reason of some misprision for which the parties are not entirely to blame, has never been entered. (Freeman on Judgments, Secs. 56-61.) The following authorities may also be cited: Reid v. Morton, 119 Ill. 118, 6 N. E. 414; Rugg v. Parker, 7 Gray, 172; Benedict v. State, 44 Ohio St. 679, 11 N. E. 125; Ex parte Jones, 61 Ala. 399; Ex parte Beard, 41 Tex. 234; Shephard v. Brenton, 20 Iowa, 41; Burnham v. Dalling, 16 N J. Eq. 310; Vroom v. Ditmas, 5 Paige Ch. 528; Clay v. Smith, 3 Pet. 411; Perry v. Wilson, 7 Mass. 393; Wilson v. Myers, 15 Am. Dec. 510; Ryghtmire v. Durham, 12 Wend. 245. In none of these cases can we find any authority for the order entered in this cause.

Counsel for plaintiff cite the following authorities in support of the order: Rima v. Rossie Iron Works, 120 N. Y. 433, 24 N. E. 940; Tobin v. Cary, 34 Hun. 431; Wolford v. Oakley, 43 How. Prac. 118; Millbank v. Bank, 3 Abb. Prac. (N. S.) 223; Fellows v. Niver, 18 Wend. 563. But a careful examination of them fails to show that they furnish any authority for it. In the case of Rima v. Rossie Iron Works (a New York case) a minor had brought suit. After the pleadings were made up, and the case was on trial, the fact of the infancy was disclosed. A motion for nonsuit was made. This was denied by the court, and an order nunc pro tunc was made appointing a guardian ad litem. The cause was then allowed to proceed. The Court of Appeals held that under the practice of New York it was too late, after plea, to make the objection. Moreover,' there is a provision of the Code of Civil Procedure of that state which provides that, where a verdict has been rendered, the judgment should, not be stayed, impaired or affected by reason of the appearance by an attorney of an infant party, if the verdict or judgment is in his favor. To the same effect are the other cases cited.

The court will, in its discretion, make any such order in favor of a minor not violative of established principles of law; but we have been unable to find any case in which the court indulges in any presumption against the minor. In the case under consideration the infants were sought to be devested of their title to the property in controversy. They were left without lawful defense or representation. This was due to the failure on the part of plaintiff’s counsel and the court to see that they were represented. It was not for the court to say, after the trial was over, and when he was about to announce the judgment taking from them the property left them by their mother, that the father, whom he was also about to convict of fraud and wrongdoing, had given them the defense the case deserved and the real facts warranted.

The judgment of the District Court will therefore be reversed, and the cause remanded, with direction to grant a new trial.

Reversed and remanded.

Hunt and Pigott, JJ., concur.


author: PER CURIAM.

text:
    STATE ex rel. KRANICH, Appellant v. SUPPLE, Respondent.
    [No. 1357.]
    [Submitted February 7, 1899.
    Decided February 13, 1899.]

      Court Reporter■ — Duty to Write Out Exceptions — Right to Fees — Mandamus.
    1. Code of Civil Procedure, Section 372, requires the court 'stenographer to write out at length all objections, rulings and exceptions occurring on the trial and file them with the cleric, after which they may be used in a bill of exceptions. Section 1153 authorizes the court to direct him to make a complete transcript of his notes, to be used in the bill of exceptions if, in its opinion, the questions and answers given are necessary, in full, to present the objections. Sections 373 and 375 provide that the couit reporter shall receive a fixed salary and a certain rate per folio for verbatim transcripts of his notes, and a different rate for narrative transcripts. Held, that Section 372 requires the reporter, in addition to writing out the ruling and exception,- to write out the question, answer, or other part of the evidence to which the objection and ruling apply, so as to identify them, without other compensation than his salary,
    2. The reporter is not required to furnish a complete transcript of the testimony or any substantial part thereof, without payment of his fees.
    3. The writ of mandate cannot be made a writ of review to correct erroneous orders and judgments of the district courts, from which appeals lie.
    4. Mandamus lies to compel the court stenographer to write out and file a list of the objections, rulings and exceptions occurring on the trial of a cause, as required by Code of Civil Procedure, Section 372, where the order of the trial court in reference thereto is insufficient, since such order is not appealable.
    5. In such case mandamus is the proper remedy, because, by stating in its order that the filing of a mere list of skeleton objections, rulings and exceptions was a compliance with Section 372, the court, in effect, refused to make an order compelling him to comply therewith.
    Application by the State, on the relation of William Kranich, for a writ of mandate to James P. Supple, requiring defendant to write out and file objections, rulings and exceptions.
    Peremptory writ issued.

      Sanders d Sanders and II J. Burleiqh, for Relator.

      Clayberg, Corbett de Gunn, for Respondent.
   PER CURIAM.

Application for writ of mandate to James P. Supple, as stenographer of Department 1 of the District Court of the First Judicial District, to compel him to comply with the provisions of Section 372 of the Code of Civil Procedure, relative to writing out or printing exceptions taken ■during trial, and filing them with the clerk.

From the affidavit and answer of respondent to the alternative writ, it appears that during the days from November 22 to December 2, 1898, inclusive, a trial was had in Department 1 of the First Judicial District Court, at Helena, of a cause entitled “William Kranich v. The Helena Consolidated Water Company, a Corporation,” which resulted,in a verdict for the defendant on the last named date; that during the trial objections were made by the plaintiff to questions propounded by defendant to witnesses who were examined by plaintiff, to which questions the plaintiff objected; that the ■court ruled upon these objections and thereupon the plaintiff •excepted to the rulings of the court; that plaintiff made objections to the introduction of certain evidence on the part of the defendant, upon which the court made rulings to which plaintiff took exception; that objections were made by the defendant to evidence offered by the plaintiff, which were by the •court sustained, to which rulings the plaintiff took exceptions; that at and during the trial respondent herein was the regularly appointed and acting stenographer of that court, and is .still acting as such; that it is the duty of the court stenographer, at the close of the trial, to immediately write out at length, or print in type all objections made, the rulings, opinions and decisions of the court thereon, and the exceptions taken during the trial and to file the same with the clerk; that respondent having failed to do this at the close of the trial referred to, the relator, on December 31, 1898, demanded of him that he do so; that he thereupon refused, that the relator then applied to that court orally, by motion, for an order to compel him to perform his duty in this regard; that the court thereupon made an order directing him to perform his duty, but in the same order also directed him that his duty would be fully discharged in the premises by writing out at length, or printing in type, from his notes taken at the trial, a skeleton list of the objections made, the rulings, opinions and decisions of the court thereon, and the exceptions thereto, without including therein, or writing out or printing, the questions or other matters objected to, and with reference to which the ruling Avas made and exception taken; that the said respondent thereupon forthwith obeyed the order so made and printed at length from his notes a skeleton list or memorandum of the objections, rulings, opinions, decisions and exceptions thereto, Avithout incorporating therein the question or eAddence, or part thereof, to Avhich the objection, ruling, opinion, decision or exception applied; and that he has failed, and refused since that time, upon demand of the relator, to add anything to said skeleton list or memorandum without being paid thelefor the fees prescribed by law for the furnishing transcripts to litigants.

Respondent insists that he has performed, under the order of the court, all that the law requires of him without compensation and that he is ready and Avilling to furnish relator all or any part of the evidence whenever he is paid or tendered, his fees therefor.

The relator demands a writ to compel respondent to incorporate in his list or memorandum the questions and parts of the evidence objected to and admitted or offered and excluded —such as will identify the objections, rulings and exceptions. He insists that this part of the evidence should be furnished and made part of the record, without compensation.

The order made by the District Court was clearly wrong. Section 372, referred to above, reads as follows: “All objections made, the rulings, decisions and opinions of the court, and the exceptions taken during the trial or hearing must be written out at length or printed in type by the stenographer and filed with the clerk forthwith after the close of the trial or hearing and thereafter such exceptions may be settled in a bill of exceptions, as provided in Section 1155 of this Code.”

It will be seen that this section provides no specific compensation for the duties enumerated in it. Sections 371, 373, 371 and 375 enumerate the other duties to be performed by a -stenographer and Sections 373 and 375 provide for his compensation; but nowhere in them is provision made for any compensation for the duties enumerated in Section 372, except, the salary. He is to be paid a salary of 81,300 per annum, and in addition is allowed to demand and receive 5 cents per folio for verbatim transcripts of his notes, and 7-J cents for narrative transcripts.

Section 1153 of the Code of Civil Procedure provides: “If in the opinion of the court or judge the questions and answers in full as given at the trial are necessary to clearly present the objections and the grounds thereof, the court or judge shall order the stenographer to make a complete transcript of his-notes of the evidence and such notes shall be used in the bill of exceptions.”

Section 1155, referred to in Section 372, supra, provides how, and the time within which, bills of exceptions may be settled.

From an examination of Section 372, supra, in the light of the other sections, it is apparent that the Legislature intended by exacting of the stenographer the duties mentioned in it, that the parts of the proceedings at the trial of a cause therein enumerated should be transcribed in such form that they would be intelligible to the court and counsel interested, su that they might be of use in the steps to be taken after the conclusion of the trial. Often a motion for a new trial is made. Bills of exception are to be prepared, or a statement of the case made. In order that this may be done intelligently by counsel the matter objected to, the objection, including the ground of it, the ruling of the court and the exception must all be set forth. This record is also a guide to the court in order that it, upon examination of the bills of exceptions or a. statement of the case, may know that they were according to the facts. Under Section 1153, supra, it is left to the discretion of the court to direct the stenographer to make additions to the memorandum already filed so that the objection and the ruling of the court thereon may be fully illustrated.

For the work done under this section he is not allowed any compensation. The provisions of this latter section, in addi"tion to the plainly-expressed duties imposed by Section 372, -clearly indicate the purpose of Section 1153. Therefore the respondent cannot maintain his contention that he has done -all the statute requires of him, when he has prepared and filed such a memorandum as he has filed in the case in question. It is a mere list of objections, rulings and exceptions, not applicable to any question or testimony of any witness, or part thereof, identified in any way so as to be of use to counsel or •court. It would not aid in preparing a bill of exceptions. It would be of no avail as a guide to the court. The memorandum must serve some useful purpose. This is the use for which it is intended. It must therefore have incorporated in it the question, answer or other part of the evidence to which the objection, ruling and exception apply, or such a reference to it that it can be identified. If, for. example, a question is -objected to, the question must be set forth. If an answer is -objected to and there be a ruling and exception the question -and answer should both be set forth. If there be documentary -evidence offered and admitted over objection or objected to -and excluded the document or documents should be referred to in an intelligent way so as to make identification easy. To ■do less than this is useless. It is equivalent to nullifying the plain provisions of the statute. It is a compliance with the letter of the law, while grossly violating its spirit. If the •claim is made that a stenographer cannot comply with this requirement, it is equivalent to saying that he is incompetent.

We are not to be understood, however, as giving to the statute a broader construction than its terms justify. An officer is always entitled to compensation for performing the duties to which the law attaches compensation. WThen the law provides no extra compensation, as in this case, he is not entitled to any. He must nevertheless perform the duty just as promptly and efficiently. He must not be permitted to evade or shirk his duty in the least, however unpleasant and onerous it may be. If he does not care to perform the duties of his office for the compensation fixed by law, he is not. compelled to retain it. Some one else can be found to take his place.

Neither, on the other hand, will the law permit the officer-to be imposed upon by the citizen who demands more of him than the law enjoins. It is not permissible for the relator, or-any other citizen, to demand of the respondent, under claim of right to the memorandum provided for by the statute a, transcript of the testimony, or any substantial part thereof. The one can be demanded as of right without compensation. The other can be demanded only upon tender of the lawful, fees.

The contention was also made in argument that the writ should not issue for the reason that this writ cannot be made-a writ of review to correct an erroneous order of the District Court. We are aware that this is the rule as to orders and judgments from which appeals lie. (High on Extr. Rem. Sec. 184; State v. Engleman, 45 Mo. 27; People v. District Court, 14 Colo. 396, 24 Pac. 260; Ex parte Burtis, 103 U. S. 238;, Ex parte Flippin, 94 U. S. 348; Works on Jurisdiction, p_ 618.) But no appeal lies from such an order as was made by the District Court in the case at bar. The application of the relator in that court was a merely informal one, made orally in open court. No formal proceedings were had. No record was made upon which an appeal could be taken. Besides, the-order made by the court was tantamount to a refusal to make any order requiring respondent to do his duty; for the court refused, in face of the statute, clear and explicit in its terms, to make the order asked for. The respondent should have done his duty under the instruction of the statute. To refuse the writ now would be to leave the relator without relief.' To grant it will do no harm to any one, nor will it do any violence to the legitimate offices of this writ. The stenographer of a court occupies a responsible position, and is well paid for his . services. Upon his promptness and efficiency depends in a . large measure the proper progress of the work of the court, and often the ultimate success of litigants in their suits. He is one of the persons to whom the writ may issue, under the-statute. (Code of Civil Procedure, Sec. 1961.) The relator-has no appeal. This court has jurisdiction under the Consti — - tution. Of so much importance and interest is the matter involved herein, that we have deemed it proper to disregard the merely technical objection that the writ should issue to the court, instead of its subordinate officer, and issue it to him directly.

It is ordered that the writ issue forthwith, with directions to the respondent that he perform his duty in accordance with the views expressed herein.

Let the writ issue.