author: MB. JUSTICE PIG-OTT

text:
    STATE ex rel. DONOVAN, Plaintiff, v. LEDWIDGE, Defendant.
    (No. 1,878.)
    (Submitted October 29, 1902.
    Decided October 29, 1902.)

      Buies of Supreme Court — Writ of Mandate — Motion to Quash —Court Stenographer — Attorney General — Copy of Transcript — Prepayment of Pees — Ministerial Duties.

    1. Under Subdivision 2 of Rule II of the Supreme Court, when the court orders the writ of mandate to go, it decides the reasons set forth in the application (which render it necessary that the writ should issue originally from the supreme court), to be sufficient, and a motion to quash not traversing the averments of the application nor setting out new matter in avoidance, admits as true the matters urged as reasons, and will not raise the question of the sufficiency of such reasons for reconsideration.
    Code of Civil Procedure, Sec. 373, provides that the stenographer must, upon demand, and payment of his fees, furnish to the attorney of a party •to. any civil, cause, a transcript of the proceedings. Held, that the appropriate remedy to compel a stenographer to furnish such transcript is a writ of mandate, rather tnan an order to the stenographer by the trial court.
    Code of Civil Procedure, Sec. 1874, provides that an officer, when prosecuting an action on behalf of the state, shall not be required to pay or deposit any fee with any officer. The attorney general conducting a proceeding on behalf of the state demanded of the stenographer a transcript of his notes taken therein. Held, that it was the stenographer’s ministerial duty to deliver them'without demanding his fees in advance.
    The stenographer had entered into an agreement with a 'third party for the preparing of the transcript, under which he did not feel at liberty to : deliver any of the transcripts in his hands to the attorney general without the pay in advance. Held, that his legal duty could not be controlled by his contract with a third party.
    The assertion of the stenographer that the attorney general did not need the transcript for the preparation of a bill of exceptions for which it was demanded would not excuse the refusal to deliver it, since the raising or solving of. that question was not delegated to the stenographer.
    ApplicatioN by the state, on the relation of James Donovan, attorney general,' for a writ of mandamusi to compel J. B. Led-widge, stenographer of the district court of the Second judicial district in and for the county of Silver Bow, to- furnish a transcript of certain proceedings.
    Writ granted.

      Mr. James Donovan, Attorney General, for Belator.

      Mr. Jesse B. Boote, for Defendant.
   MB. JUSTICE PIG-OTT

delivered the opinion of the court.

The state of Montana, at the relation of its attorney .general, has instituted this proceeding in- mandamus to compel the stenographer of Department II of the district court of Silver Bow county to furnish a copy, written out at length, of the testimony and proceedings upon a trial involving the validity of two supposed wills. The allegations contained in the application are to the effect that the state of Montana, by its attorney general, filed objections to the probate of two certain proposed wills of oner Colbert, deceased, asserting that the wills presented were forged; that C'olbert bad died intestate, without heirs, and that the property of the decedent would escheat to the state; that a trial was had of the issues raised by the objections, at which many witnesses were examined, and much evidence received; that the trial resulted in favor of the state and against the proponents; that the proponents, in July, 1902, gave notice of their intention to move for a new trial, and duly served their proposed bills of exception in support thereof; that the court, by granting to tire state thirty days’ extension, enlarged the time within which the state might propose amendments to each of the bills; that the time for proposing amendments will expire with November 7, 1902, and that no further time can be granted by the court without the consent of the proponents,,and that they have refused and still refuse to consent to any further enlargement; that the stenographer attended the trial and took full stenographic notes of all the testimony, evidence, and proceedings; that the attorney general, acting for the state, on August 1, 1902, demanded of the stenographer a copy of his notes, written out at length; that the stenographer had written the same out at length, and has in his possession copies thereof so extended, but that he refused and still refuses to deliver to the attorney general a copy without payment in advance by the state of $419.40, his alleged fees; that the attorney general did not have knowledge of the unqualified refusal 'of the stenographer until the 20th day of the present month, and that the stenographer has never written out and filed with the clerk of the trial court any of the objections, rulings, decisions, opinions, or exceptions taken by him; that neither of the proposed bills contains a full, true, and correct statement of the evidence and proceedings; and that the state is desirous of preparing amendments thereto before November 7th next, and that, to enable the attorney general to do- so, it is indis-' pensable that he have a copy of the proceedings so taken by the stenographer. The application sets forth as the reason why it is necessary that the writ should issue from this court instead of from the district court that, if application were made to the district court, it would be subject to the unavoidable delay incident to the commencement, hearing, and trial of the same in such court, and that it could not be determined until after November 7, 1902; and that, if the decision in such court should be adverse to the state, and an appeal were taken to the supreme court, such appeal could not be heard here prior to to the 7th day of November next.

An alternative writ was issued, and the defendant was required to answer on yesterday, October 28, 1902. He moved that the writ be quashed on several gTounds, the first being- that the application does not set forth any sufficient reason why the writ should issue from the supreme court, instead of from the district court of Silver Bow county. Subdivision 2 of Rule II of this court requires, among other things, that the application for the issuance of the writ of mandate must set forth the reasons which render it necessary that the writ should issue originally from the supreme court, and that the sufficiency or insufficiency of the reasons so set forth will be determined by the court in awarding or refusing the writ. When we ordered the writ to go, we decided the reasons set forth in the application to be sufficient. The motion to quash admits as true the matters urged as reasons. If the defendant had traversed the aver-ments, or pleaded new matter in avoidance, a different question would arise. The first ground of the motion is untenable.

The next contention is that the attorney general should have asked the district court of Silver Bow county for a rule or order requiring the defendant to furnish the copy demanded. In State ex rel. Kranich v. Supple, 22 Montana Reports, 184, (56 Pac. 20), we gave a kindred question some consideration. There the stenographer had refused to obey the command of Section 372 of the' Code of Civil Procedure, which provides that “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 the district court refused to order him to comply therewith. A careful reading of the opinion discloses the fact that this court did not deem the refusal of tbe district court to require its stenographer to obey tbe statute a matter of importance; it beld tbat tbe stenographer should have done tbe duty imposed upon him by statute, and tbat be is one of tbe persons to whom tbe writ may issue. Nor does State ex rel. Dempsey v. Second Judicial District Court, 24 Montana Reports, 566, (63 Pac. 389), support tbe defendant’s contention. There tbe district court bad ordered its stenographer to furnish to tbe defendant in a criminal case a copy of the evidence taken at tbe trial, to enable him to prepare bills of exceptions. This was done under tbe authority conferred by tbe last sentence of Section 373 of tbe Code of Civil Procedure, providing that, “if it appears to tbe judge tbat a defendant in a criminal case is unable to pay for such copy, tbe same shall be furnished him and paid for by tbe county.” Tbe stenographer did not obey, and this court was applied to for a writ of mandate to compel tbe stenographer to obey tbe order. We denied the application, for tbe reason tbat to punish tbe contempt, and so enforce obedience, was for the court which made tbe order, and not for this court. It is to be observed tbat tbe duty to furnish tbe copy was imposed by order of tbe court made in accordance with tbe statute, and was not a specific duty created by tbe statute without tbe intervention of tbe court or judge. In an obiter we further intimated tbe opinion tbat if tbe court or judge bad refused, upon a proper showing, to enforce tbe order by contempt, proceedings, this court would feel justified in compelling tbe stenographer to do bis duty, but, until that remedy in tbe court below bad been exhausted, we would not interfere. In State ex rel. Moshner v. Wright, 26 Montana Reports, 540, (69 Pac. 101), we beld, it is true, tbat mandamus is not ordinarily tbe proper remedy to compel tbe clerk to issue an alias order of sale upon a foreclosure decree, for tbe reason tbat there is a plain, speedy, and adequate remedy by motion in tbe case itself; but tbat tbe court in which a judgment is entered is tbe primary forum to which application should be made for its enforcement, and tbat, if tbe clerk refuse to issue a writ of execution, be may, without resort to the extraordinary remedy of mandamus, be compelled, by order, to perform tbe ministerial duty. Tbe court bas control of its process, and may, by order, require of its clerical officer performance of bis duty in respect thereof. This remedy does not seem appropriate in such a case as the one now presented, where tbe attorney general insists that be is entitled, under the provisions of tbe statute only, to receive from tbe stenographer a transcript of tbe notes taken and extended by him. Tbe statute invoked by tbe attorney general imposes the duty tbe performance of which is sought to be coerced. With tbe creation of this duty tbe court bas nothing to do. .Discharge of such duty is in no wise obedience to any order or judgment; it bas no place in tbe substantial proceedings of tbe case. Indeed, we seriously doubt tbe existence of power in the district court- to punish as for a contempt disobedience of its mere order that -the stenographer deliver to tbe attorney general tbe transcript demanded by him.

Another ground of tbe motion to quash is that a full transcript of all tbe proceedings bad upon tbe trial is not necessary to a settlement of tbe bill of exceptions, and therefore Section 1874 of tbe Code of Civil Procedure bas no application; and tbe last ground argued is that the alleged facts set forth in the petition do not entitle tbe state to a writ of mandate.

Section 373 of tbe Code of Civil Procedure provides, among other things, that tbe stenographer must, upon request, furnish, with all reasonable diligence, to a party or bis attorney in a civil cause in which be bas attended tbe trial or bearing, a copy, written out at length or in narrative form, from bis stenographic notes, of the testimony and proceedings upon tbe trial, upon payment, by tbe person requiring tbe same, of 5 cents per folio for tbe copy written out at length, and 7% cents per folio for tbe copy written out in narrative form. Section 1874 of tbe same Code reads as follows: “The state or a county, or any subdivision thereof, or any officer when prosecuting or defending an action on behalf of tbe state or county, or subdivision thereof, is not required to pay or deposit any fee or amount lo- or with any officer during the prosecution or defense of an action. Nó officer so prosecuting or defending shall be taxed with costs or damages, but sucb costs or damages, if any, shall be taxed to the state or county, as the case may be.” We have already decided in State ex rel. Donovan v. Second Judicial District Court, 25 Montana Reports, 355, (65 Pac. 120), that the state had the right to' appear and oppose the probate of the wills. The state was, therefore, and is, a party to the cause, action, or proceeding, in the district court. The stenographer is an officer of that court, and the sums paid to him for copies aie, by Section 3T3, supra, designated as “fees.” Section 1866 of the Code of Civil Procedure declares that the legal fees paid to stenographers for per diem or for copies are necessary disbursements, which a party is entitled to include in his cost bill. The attorney general, acting for the state, has demanded a copy of the testimony, and the defendant has refused to deliver it to him without prepayment of the fees. From Sections 373 and 1874, when read together, it is manifest that the stenographer may not require the state, or its attorney general, to pay the amount of his fees in advance. The ministerial duty of the stenographer to furnish the transcript to the attorney general is equally manifest. Whether he is entitled, in such a proceeding, to fees from the state, is a question not here involved.

The motion to quash having been overruled, the defendant, hy leave of court, filed his answer today. Therein he avers that he has never written out at length, or otherwise, the testimony or proceedings had upon the trial; that in June, 1902, the attorney general requested the defendant to! prepare for him a transcript of the testimony and proceedings, and agreed to pay him the regular fees therefor; that, relying upon the promise of the attorney general, the defendant entered into a contract with one Deavitt, by which Deavitt agreed to transcribe the stenographic notes and write the testimony and proceedings at length in consideration of one-half of the fees allowed by law to be paid to him therefor upon delivery of the transcript to the attorney general; and that thereafter Deavitt, in compliance with the contract with the defendant, did prepare a typewritten transcript of tbe testimony and proceedings, but that the defendant did not prepare any part of the transcript, and does not own the same, and is not at liberty to deliver it to the attorney general.

From the evidence taken it appears that the defendant read and dictated to Deavitt from his stenographic notes all the testimony and proceedings taken at the trial, and that Deavitt printed the same upon a typewriting machine; that Deavitt delivered three copies to the defendant, and that the defendant now has these copies in his possession. He says, however, that he does not feel at liberty to deliver any one of them for the reason that the defendant and Deavitt agreed that no copy should pass from the possession of the defendant to the attorney general until the fees were paid. The defendant, a public officer, will not be permitted to avoid the performance of a duty enjoined upon him by law by showing that he and another person had made a contract under the terms of which the public officer promised to violate that duty. This court is not concerned with the. respective rights of the defendant and Deavitt as between themselves. The assertion that the attorney general does not need the transcript for the purpose of aiding him in proposing amendments to the bills of exceptions may be disposed of by observing that the- law has omitted to clothe the stenographer with the right or privilege of raising or solving the question, which must, necessarily, be decided by the attorney general, who has the legal right to a copy of the extended notes, and by him only.

It is therefore ordered that a peremptory writ of mandate issue as prayed for, and that the defendant make return thereof at 10 o’clock on Friday, the 31st day of October, 1902.

Writ granted.


source: Caselaw Access Project

author: MR. JUSTICE MILBURN Mu. Chiee Justice Be-aNtly: Mr. Justice Pigott

license: Public Domain

text:
    HELENA WATER WORKS COMPANY, Appellant, v. CITY OF HELENA et al., Respondents.
    (No. 1,702.)
    (Submitted January 24, 1902.
    Decided November 10, 1902.)

      Municipal Corporations — Debt Limit — Claims —- Special Appropriations — ^-Assignment of Funds.

    1. Political Code, Sec. 4811, requires all demands against cities to be submitted to tbe council and, if found correct, allowed, and an order made that tbe demand be paid on a warrant on tbe treasurer, specifying tbe purpose, by what authority it is issued, and out of what fund it is to be paid. Section 4812 declares that all such accounts shall be itemized and verified by affidavit, and that the council shall have no authority to allow any claim or demand not so presented. Held, that where a city had exceeded its debt limit prescribed by Constitution, Art. XIII, Sec. 6, it could not incur an indebtedness not payable from a specially authorized tax, but payable from funds previously appropriated, under an agreement that the claimants should accept warrants in payment of their claims, and that if, for any reason, the warrant should not be paid, the city should not be liable therefor.
    2. The payment of such claims on the theory that the appropriation by ordinance was an assignment of the funds so appropriated for the payment of the claims was unauthorized.
    Mr. Justice Pigott, dissenting.

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

    Action by the Helena Water Works Company against tbe city of Helena and others. Erom a judgment in favor of defendants, plaintiff appeals.
    Reversed.

      Messrs. Clayberg & Gunn, and Messrs. Carpenter & Carpenter, for Appellant,

      Mr. Edward Horsley, and Messrs. Word & Word, for Respondents.
   MR. JUSTICE MILBURN

delivered the' opinion of tbe court.

On April 4, 1901, plaintiff commenced an action in the district court to enjoin defendants from allowing or ordering paid any claims or demands presented for materials furnished or services rendered to said city during the time that it has been or may be indebted in excess of 3 per centum of the assessed value of the taxable property, as ascertained by the last assessment, such excess being admitted. Plaintiff excepted expressly from its prayer any desire to have the city enjoined from paying certain claims of plaintiff for water furnished and to be furnished to said city.

The pleadings and proofs are so voluminous, and there is so much repetition in them, that we shall not set them out in full.

On December 17, 1900, this court, in the case of State ex rel. Helena Water Works Co. v. City of Helena, 24 Mont. 521, 63 Pac. 99, 55 L. R. A. 336, 81 Am. St. Rep. 453 (hereinafter referred to as the “Helena Case”), held that a certain contract made by the city with the company to furnish water wás void. There were two questions answered by the court in that case: (1) “Did the city of Helena, by entering into the contract for a water supply, incur an indebtedness/ within the meaning of that term as it is used in Section 6 of Article XIII of the Constitution of Montana?” and (2) “Does the amount now due and unpaid for water furnished to- the city under the contract before us constitute an indebtedness/ within the meaning of the term as used in that section of the constitution above considered ?” Said Section 6 of Article XIII of the Constitution, above referred to is as follows: “No city, town, township or school district shall be allowed to become indebted in any manner or for any purpose to an amount, including existing indebtedness, in the aggregate exceeding three per centum of the value of the taxable property therein, to be ascertained by the last assessment for the state and county taxes previous to the incurring of such indebtedness, and all bonds or obligations in excess of such amount given by or on behalf of such city, town, township or school district shall be void: provided, hoxoever, that the legislative assembly may extend the limit mentioned in this section, by authorizing municipal corporations to submit the question to a vote of the taxpayers affected thereby, when such increase is necessary to construct a sewerage system or to. procure a supply of water for such municipality which shall own and control said water supply and devote the revenues derived therefrom to the payment of the debt.” Each question was, in the opinion referred to, answered in the affirmative. The court added, obiter, certain suggestions to the city as to how it might continue to do business and pay out money for “necessities to sustain corporate life.” It appears that the city, acting upon these suggestions, has endeavored to operate on what is termed, in the remarks of the court made obiter and in the bidefs of counsel, as the “pay-as-you-go plan.” It was admitted that at the times referred to in the Helena Case the city was indebted beyond the constitutional limit.

Since the date of the decision of this court in the case referred to, the city has, it alleges, employed men and purchased materials with the understanding that the parties with whom it dealt should not and would not hold the city liable or responsible in any degree for the stipulated value of the services or materials, but would accept warrants upon the city treasurer, drawn in the usual form, as shown in the exhibits in the evidence; the city having by an ordinance made an appropriation of sufficient funds to meet all expenses when they should arise; no warrant to be drawn unless there should be actual cash in the treasury to meet such warrants. The city also asserts (and there is some proof to support the assertion) that there was and is an understanding with all creditors that the ivarrant should be and would be accepted as cash, and that the city should not be responsible if the treasurer should, for any reason, fail to pay the warrant. It is alleged, in effect, also, that the said appropriation by ordinance is an assignment of funds for the payment of such claims. There is a reference to a city library fund, raised by a specially authorized tax, and to debts' incurred and to be paid out of such fund. •

The plaintiff alleges that the services and materials were rendered and furnisbed without any understanding’ that the creditors would accept an assignment of the taxes to be levied, or an assignment of any fund in the treasury in payment of such claims, and that no such assignment was ever made. Plaintiff alleges enough to show it to be a party in interest.

The Political Code, in Sections 4811 and 4812, which axe as follows,- — -“Sec. 4811. All accounts and demands against a city or town must be submitted to the council, and if found correct must be allowed, and an order made that the demand be paid, upon which the mayor must draw a warrant upon the treasurer in favor of the owner, specifying for what purpose and by what authority it is issued, and out of what fund it is to be paid, and the treasurer must pay the same out of the proper fund. Sec. 4812. All accounts and demands against a city or town must be presented to the council, duly itemized and accompanied by an affidavit of the party or his. agent, stating the same to be a true and correct account against the city or town for the full amount for which the same is presented, and that the same accrued as set forth, and with all necessary and proper vouchers, within one year from the date the sarnie accrued; and any claim or demand not so presented within the time aforesaid is forever barred, and the council has no authority to allow any account or demand not so presented, nor must any action be maintained against the city or town for or on account of any demand or claim against the same, until such demand or claim has first been presented to the council for action thereon,” — prevents the city being, put on a cash basis, or on a pay-as-you-go- plan, such as suggested by the city as its intention to establish. The Code requires the city council to audit'all claims and demands evidenced by itemized bills, sworn to, before any payment is made. A claim is presented, and after an auditing (that is, a hearing) by the guardians of the city treasury, not of' other people’s money, already assigned and set over to themi, the account is allowed and ordered to be paid, if these guardians find that there is a debt against the city which is due and payable. In no other way may a claim against a city be paid. If 'the servico and material men°have no demands against the city, as com tended by the city in the present case, and they do not claim that the city is indebted to them, then they may not file claims with the council for allowance and payment, and they can never get a cent. The city does not owe them anything, and the council has no business to hear them, or to order any warrant to issue for payment. If there be indebtedness, and the city is the one indebted, then the claimants shall so swear, and have their demands audited and established as part of the indebtedness of the city. Such is the law, and such is the only conclusion to be drawn from the reading of the law. As we have said, in no other way can a claim be established and paid, as the law now stands. Expediency and emergencies arising out of extravagance or misfortune have, we think, led and forced city officials in Montana and elsewhere to adopt a plan such as suggested by counsel.

If the law did not require indebtedness to be first incurred, and thereafter to be found in the way fixed by the Code, sufra., then, with money to pay on hand, there could be instantaneous cash transactions, perhaps such, and under such conditions, as would not create debts.

The Great Falls Case (State ex rel. Great Falls Water Works v. City of Great Falls, 19 Mont. 518, 49 Pac. 15) is not in point as an authority in support of the contention of the defendants in the case at bar. That case is authority for the proposition that a contract does not create an indebtedness, such as is prohibited by the constitution, when the city making the com tract is authorized by statute to levy a special tax expressly for the payment of such contract liability. In such a case the liability is special, and is limited to the amount of the special tax levied, and the property and the credit of the city are not liable to' the creditor holding claims payable out of that tax. The city library fund, referred to in the pleadings, is raised by special tax for library purposes. The liabilities referred to in the case under consideration now, and the payment of which the plaintiff seeks to enjoin, are general, and the city cannot escape liability by itself appropriating general funds and calling such an appropriation an “assignment-.” This is clear from the reasoning of the opinion rendered by this court in the Helena Gase. which opinion we have no idea should be disapproved. The learned justice who wrote that opinion went exhaustively into the matter, and compared the many authorities bearing upon the subject, both those of our own court and those of other courts of last resort, and said: “In view of these holdings, we can conceive of no possible ground for the supposed distinction between an indebtedness for current expenses, payable out of the current revenues, and one for the payment of which no provision has been made, and for which the city is generally liable.”

-It is not for us to suggest to unfortunate cities or people how they may escape the consequences of misfortune or extravagance. We are to declare the law as we find it.

The court below erred in refusing the injunction prayed for. Such injunction should not prevent the city from paying all valid claims against funds raised by tax! especially authorized by law for the purpose of paying such claims. No other logical conclusion can be arrived at after reading the Code, supra, and the decision in the Helena Gase. The question of the validity or nonvalidity of the claims of plaintiff against the city, referred to in the pleading's, is not before us for decision.

Reversed and remanded.

Mu. Chiee Justice Be-aNtly:

I concur. I desire to say further that I cannot see any escape from the conclusion reached in the Helena Case. The section of the constitution discussed and applied therein is clear and explicit in its provisions, — so much so that it does not admit of but the one construction. To undertake to assign to it any other or different meaning would be an attempt to fritter away the wholesome restraint imposed for wise purposes upon the legislature, and thus upon all municipal corporations created by it. Nor is there any escape from tbe conclusions of MR. Justice MilburN as to tbe proper construction of tbe provisions of the statute touching the payment of claims against tbe municipality. It is the duty of the courts to declare tbe law as it is, and not to exercise their ingenuity in trying to devise means by which its clear and explicit injunctions miay be evaded. What is said in the latter part of the Helena, Case is obiter, and may not be treated as of any binding force whatever.

Rehearing denied December 9, 1902.

Mr. Justice Pigott

(dissenting) : I believe the decision in State ex rel. Great Falls Water Works v. City of Great Falls, 19 Montana Peports, 518, (49 Pac. 15), to be correct in matter of substantive law, and that it does not support the contention of the defendants in the case at bar. I believe, also, the course of reasoning and the conclusions announced upon the questions presented in State ex rel. Helena Water Works. Co. v. City of Helena, 24 Montana Reports, 521, (63 Pac. 99, 55 L. R. A. 336, 81 Am. St. Rep. 453), to be correct; andfrthat the opinion should not be disapproved. Thus far I agree with my brethren. But I do not concur with them in the view that Section 6 of Article XIII of the Constitution prohibits, or that the existence of Sections 4811 and 4812 of the Political Code prevents, the payment of the claims involved in the present controversy. I am inclined to the opinion that these claims are not, under the circumstances shown by the evidence, debts of the city, within the meaning of the constitutional inhibition; nor do I think that the opinion in the Helena Case, when applied to the facts of that case, and read as a whole, either declares or suggests that such claims would increase the indebtedness. I think the court below was right in refusing the injunction; I therefore dissent from the judgment of reversal.


author: MR. CHIEF JUSTICE BRANTLY

text:
    WETZSTEIN, Appellant, v. LARGEY et al., Respondents.
    (No. 1,462.)
    (Submitted May 7, 1902.
    Decided November 24, 1902.)

      Mining Claims — Fraudulent Patent — Title — Quitclaim, Deed —Innocent Purchaser — Notice — Lost Deed — Evidence— Equity Action — Instructions — Verdict of Jury — Harmless Error.

    1. where in an equity action the special findings of fact of the jury were' modified by the court, and their general verdict disregarded, errors in the instructions, or in permitting them to return a general verdict, were harmless.
    2. In an action brought to secure title to an interest in a mining claim, evidence examined, and held to justify a finding that the former owner conveyed the interest to defendants’ predecessor in title prior to the execution of the quitclaim deed from the same owner under which plaintiff claimed.
    3. A finding of fact made in an equity case by the lower court on conflicting evidence will not be disturbed by the supreme court.
    4. All but one of the co-owners of a mining claim applied for a patent, presenting to the land office where the entry was made abstracts of title showing their interest, and also that of their co-owner. On appeal to the department at washihgton the patent was obtained; no mention being made therein of the co-party, who had meanwhile parted with all his interest to one of the other parties to the patent. Held, that fraud for not including him in the application at the time of the original entry, and irregularity for lack of proof of his transfer of interest at the time of the final application, were alike harmless to him thereafter.
    5. where at the time of the execution of a deed to mining property the grantee knew that another was in possession of the property, and claiming under an adverse, unrecorded deed, the grantee was not an innocent purchaser.
    6. A purchaser under a quitclaim deed takes only such title as the grantor has, and subject to any prior deed by the grantor to the same property.
    7. In an action attacking a claim to mining property based on a lost deed to defendants’ predecessor in title, evidence was introduced tending to show that the prior owner, from whom both parties claim, in fear of an adverse decision in former litigation, which occurred subsequent to the alleged deed, relocated the claim, and redeeded to defendants’ predecessor the same interest therein as defendants claimed under the lost deed. Held that, though the subsequent location was abandoned, the evidence was admissible, as showing the understanding of the former owner in regard to the claim of defendants’ predecessor.

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

      ActioN by Aclolpb Wetzstein against P. A. Largey and others. Prom a judgment in favor of defendants, and from an order denying a new trial, plaintiff appeals.
    Affirmed.

      Messrs. McHatton & Cotter, for Appellant.
    Whenever a person, without the consent of the owner, receives a legal title which he seeks to withhold, he is guilty of sufficient fraud to constitute himself a trastee of such title for the owner. (Turner v. Sawyer, 150 IT. S. 518; Brundy v. Mayfield, 15 Mont. 201.)
    A consideration of the elements of an estoppel in pais will indicate a necessity for strictness in two matters, viz: (1) Pleading; (2) Ploof. (Herman on Estoppel, Sees. 933, 948, 957, 974; St. Louis M. & M. Co. v. Montana M. Co., 58 Ped. 129; Boggs v. Merced. M. Co., 14 Cal. 279-368; Grant v. Brandon C. & I. Co., 93 TJ. S. 326; Storrs v. Barker, 6 John’s. Ch. 166; Lux v. Haggvn, 69 Cal. 266; Murphy v. Clayton, 113 Cal. 153, 45 Pac. 267.)
    In order for a party to obtain the benefit of an estoppel in pais it is necessary that he should plead it. (Gilson v. Price, (Nev.) 1 Pac. 459; Clark v. Schuber, 25 Cal. 594; Davis v. Davis, 26 Cal. at page 39; 8 Ency. PI. & Prac. pp. 7, 9, 2, 10; Code of Civil Procedure, Secs. 690, 3145.)
    When conveyances of real estate are required to be in writing, and the law authorizes or requires a record thereof to be made, and gives to such record the element of notice, no estoppel in pais can be either pleaded or established. The doctrine of es-toppel in pais should not be extended to effect a divestiture of estate in lands, where the same can only be conveyed by instrument in writing. (Parker v. Barker, 2 Mete. 423; Tolman v. SpaPhawk, 5 Mete. 469; Brewer v. B. & W. R. R. Corp., 5 Mete. 478; Jackson v. Sherman, 6 Johns. 21; Jackson v. Voss-berg, 1 Johns. 186.)
    A party taking a quitclaim deed is not a bona fide purchaser; he is charged with notice of the true state of the title, and of all adverse claims and existing equities. (McAdow v. Blade, 6 Mont. 601; Dickersons. Colgrove, 100 U. S. 578-584; Johnson v. Williams, 37 Kan. 179, 1 Am. St. Kepts. 243; 16 Am. & Eng. Ehcy. of Law, p. 792; Civil Code', Sec. 4667; Code of Civil Procedure, See. 3465.)
    The C'omancbe Mining Company was not a bona, fide purchaser for a valuable consideration or without notice, for the reason that it bartered its capital stock for the quitclaim deed which it received. (Franklin Mining Co. v. O'Brien¡, 43 Pac. 1016.)
    A purchaser under a quitclaim deed is not entitled to an after acquired title. (Clark v. Ba/rker, 14 Cal. 612; Morrison v. Wilson, 30 Cal. 344; Quivey v. Baker. 37 Cal. 465; Devlin on Deeds, Sec. 27.)
    The giving of erroneous and conflicting instruction entitles the plaintiff to a i'.ew trial. (Kelly v. Cable Co., 7 Mont. 70; 16 Am. & Eng. Ency. Law, pp. 2, 552; Murray v. Heinze, 17 Mont. 353; Davis v. Davis, 26 Cal. 46.)
    A verdict must be certain in order to support a judgment, and where a verdict is uncertain, a new trial will be granted. A conflict in the findings entitles the plaintiff to a new trial. {Reece v. Corcoran, 52 Cal. 495; Mauley v. Howlett, 55 Cal. 94; Cottle v. Morris, 57 Cal. 317; Bloss v. Allman, 64 Cal. 47; Richards v. Doiver, 64 Cal. 62; Carman v. Ross, 64 Cal. 249; Kerns v. McKeen, 65 Cal. 412; Randall v. Hunter, 66 Cal. 513; Learned v. Castle, 78 Cal. 454.)

      Messrs. Forbis & Evaois, for Kespondents.

      Mr. F. T. McBride, for Kespondents Largey and Tong.
    It is a rule of presumptions that ordinarily a witness who testifies to an affirmative is to be preferred to one who testifies to a negative. (/Stitt v. Huidekopers, 17 Wall. 384.)
    Against positive affirmative evidence of credible witnesses to the existence of a fact the testimony of others whose evidence is of a negative character is 'unavailing. (Culhane *v. N. Y.

      Gen. etc., 60 N. Y. 133; Lomer v. Meeker, 25 N. Y. 363; Kelly y. Borroughs, 102 N. Y. 93.)
    Upton and those claiming under him are estopped from claiming the interest which Largey purchased from Collins. (Storrs v. Barker, 6 Johnson’s Ch. 166; Wendell v. Van Rens-selaer, 1 Johns. Ch. 344; Niven v. Balknap, 2 Johns. 573; Stephens v. Baird, 9 Cowen, 274; De Herques v. Marti, 85 N. Y. 609 ; Herman on Estoppel, p. 1053 ; Dickerson v. Oolgrove, 100 U. S. 578.)
    It is well settled that a conveyance of property is effectual for the transfer of any interest which the grantor has therein, by whatsoever name the property may be described in the conveyance, so long as it is capable of being ascertained from the language employed in the conveyance what property is in fact intended to be granted. Where a name is used for the purpose of describing property intended to be conveyed, the property designated by the name employed will be deemed to have been conveyed, and a tract of land which has a well known name may be described by that name in a deed. The question as to what is conveyed is always one of intention, and where it appears that the parties to a conveyance knew the property by a specified name, although it was also known by another name, the property thus known is passed by the conveyance. (Lebanon Mining Go', v. Gon. Rep. Mng. Co., 6 Colo. 371, 379; Haley v. Amestoy, 44 Cal. 132; Truett v. Adams, 66 Cal. 218; Martin v. Lloyd, 94 Cal. 195-203 ; Vejar v. Mound City Land & Water Ass’n, 97 Cal. 659; Schreve v. Gopper Bell Mining Go., 11 Mont. 319 ; Montana Mining Co. v. St. Louis M. & M. Co’., 51 Pac. Pep. 824; Phillpotts v. Blasdel, 8 Nev. 61; Weill v. Lu-cerne M. Co., 11 Nev. 200; Shoshone M. Go. v. Rutter, 87 Eed. 801.)
    The declaration by Upton in his contract with Tong made in October, 1888, that all of his interest in the Comanche and Grand Prize lode claims was one-fourth only, operates as an estoppel of record and is conclusive evidence against Upton and his grantees as to the extent of his interest in said property at that time. There are numerous antlioritiea to the effect that a recital of this nature contained in a deed of conveyance is binding upon the party making the recital. It is a solemn declaration of record explanatory of the interest in the property conveyed. (Dundas v. Hitchcock, 12 How. TJ. S. 256; Newell on Ejectment, Sec. 1314; Code of Civil Procedure, Sec. 3125.)
    The Comanche Mining Company when it acquired title to the entire Comanche claim under a deed from the patentees was not bound to make any investigation into the history of the title preceding the issuance of the patent. The proceedings'resulting in the grant of such patent concluded the claims of all the world to the property conveyed. (TJ. S. Revised Statutes, Secs. 2325, 2332; 2 Lindley on Mines, Sec. 777.)
    The conveyance by the patentees to' the Comanche Mining Company in exchange for the entire capital stock of that company, constituted the latter a bona -fide purchaser for value, and the fact that the grantors became the stockholders and officers of the corporation did not charge it with notice of any infirmity in the title of Mantle and Largey. (Frenkel v. Hudson, 82 Ala. 158; Whittle v. Vanderbilt M. & M. Go., 83 Fed. 48; Davis, etc. Go<. v. Davis, etc. Go'., 20 Fed. 699; 1 Morawetz on Corporations, See. 234.)
    The fact that the deed from the patentees to the Comanche Mining Company was a quitclaim' deed does not deprive the latter of its standing as a bona fide purchaser. (Moeller v. Sherwood, 148 U. S. 21; TJ. S. v. Gal. & 0. Land Go., 148 TJ. S. 31; Nidever v. Ayers, 83 Cal. 39; McDonald v. Belding, 145 TJ. S. 492; White v. McGarry, 41 Fed. 420; Stanley v. Schnualby, 162 IT. S. 255.)
    The defense of laches is peculiarly applicable to the case at bar. (Wolf v. Great Falls Go., 15 Mont. 57; Penn. Mut. Life Ins. Go. v. City of Austin, 168 TJ. S. 685.)
    The defense of laches may be raised at final hearing, even though not pleaded, and the court may even on its own motion apply the doctrine. (LarTem v. Sierra Buttes M.Oo., 25 Fed. Eep. 337; Bratt v. California M. Co., 9 Sawyer, 354; Hager-

      man v. Bates (Col.), 49 Pae. Pep. 139; Woodmanse Mg. Co. v. Williams, 68 Fed. 489; Murphy v. De France, 105 Mo. 53.)
    It is the duty of the plaintiff to explain away the laches which may be predicated on his own action in his complaint. (Foster v. Mansfield B. B. Co., 146 IT. S. 89; Leamenwood Co. v. Chicago etc. B. B. Co., 18 Fed. Rep. 209; U. 8. v. White, 17 Fed. Rep. 561; Badger v. Badger, 2 Wall. 87; Jones v. Perkins, 76 Fed. Rep. 82.)
    The claim of want of consideration is not available because it has not been pleaded. (4 Ency. PI. & Prac. 946; Winters v. Bush, 34 Cal. 136; Dubois v. Hermanee, 58 N. Y. 673; Civil Code, Sec. 2170.)
    The purchaser of a mere equity is not a “bona fide- purchaser.” {Dupont v. Wertheimer, 10 Cal. 354; Wiles y. Cooper, 24 Miss. 208; Claw v. Barrett, 11 S. & R. 389.)
    One-who seeks to charge another as trustee for his benefits must be held to clear, full and convincing proof of the trust. It will not be implied or presumed, except under the most extraordinary circumstances. {Clarice v. Quaclcenhos, 27 Ill. 260, 290; Allen v. Wetlvrow, 110 IT. S. 119; Burns v. Byrne, 45 Iowa, 285; Young v. Young, 80 N. Y. 438; 27 Am. & Eng. Ency. of Law, 296-300.)
    In an equity action such as this it is of no consequence if the instructions are in any respect inaccurate, since the court decides the case, and not the jury, the findings of the jury being merely advisory. {Post v. Mason, 91 N. Y. 539; Sweetser v. Dobfries, 65 Cal. 529; Blade v. Lamb, 12 N. J. Eq. 108; Schmeer v. Goodiuin, 57 Pac. 789 (Cal.) ; Bichardson v. City of Eurelca, 110 Cal. 441; Lawlor v. Kemper, 20 Mont. 13.)
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was brought to obtain a decree declaring the defendants trustees of the legal title, for the use and benefit of the plaintiff, to an undivided one-fourth interest in the Comanche lode claim (patented), situate in Silver Bow county, and directing them' to execute and deliver to tbe plaintiff a conveyance thereof. Tbe plaintiff sues as tbe grantee, by a mesne conveyance, of one David N. Dpton, wbo, it is alleged, located tbe claim in connection with one N. L. Turner in 1879; thus be1coming tbe owner of an undivided one-balf interest therein. He alleges in bis complaint that the said Upton never at any time subsequent to tbe location conveyed any interest therein to any other person than tbe plaintiff, except that on February 28, 1889, be conveyed an undivided one-fourth interest to defendant Tong; that, though it appeared of record in tbe office of tbe clerk of Silver Bow county that Upton was the owner of an undivided one-fourth interest, the said Tong, bis grantee of a one-fourth interest, and tbe defendants Largey, Warren, Zenoi and Bielenberg, as grantees of tbe interest of said Turner, bad on January 1, 1892, applied hr tbe land department of tbe United States for, and by fraudulent representations concerning their ownership, and concealment of tbe fact that Upton was still tbe owner of an interest therein, succeeded in procuring for themselves a patent for tbe entire claim, to the exclusion of said Upton, thus defrauding him of his rights; that on January 15, 1894, tbe said Upton bad conveyed bis remaining one-fourth interest to one IT. L. Frank, wbo thereafter, and on March 21, 1894, bad conveyed tbe same to' plaintiff; that subsequent to the issuance of patent to them tbe defendants Largey, Warren, Ze-nor, Bielenberg and Tong bad conveyed tbe claim to tbe defendant tbe Comanche Mining Company, and that the claim now stands upon tbe records of Silver Bow county in tbe name of said company; and that tbe other defendants have some claim or interest therein. In an amendment to this complaint it is alleged that on September 22, 1890, tbe defendants Largey, Warren, Zenor, Bielenberg and Tong organized the defendant tbe Comanche Mining Company; that they became tbe officers, trustees and stockholders thereof; that they knew that Upton ■was tbe owner of an undivided one-fourth interest in tbe claim; that tbe said company, through its said officers, knew actually and constructively of Upton’s interest; and that with such knowledge it purchased the claim from the said defendants.

The defendant the Comanche Mining Company made a separate defense. In its amended answer, after denying the allegations of fraud contained in the complaint, it interposed as affirmative defenses: (1) That the plaintiff has no interest in the Comanche claim, under the patent or otherwise, for the reason that in 1880, a short time after the location was made, and long prior to the issuance of the patent, Upton conveyed the interest now.claimed by plaintiff to one John N. Collins, who on or about August 6, 18S4, conveyed to the defendant Largey, and therefore that the grant to plaintiff through Frank conveyed no interest whatever. (2) That on or about August 6, 1884, Upton represented to Largey that Collins owned the interest in controversy; that he induced Largey to purchase the same, and take a deed therefor, with other property, from Collins, for a large sum of money, and that thereafter Largey, with Upton’s knowledge, expended large sums of money in protecting the title to the claim and in developing it for mining purposes; and that by his conduct in this regard the said Upton had estopped himself and the plaintiff, his grantee, forever, from making a claim to the said interest. And (3) that the said Comanche claim v^as also1 known and designated by Upton as the “Grand Prize Lode Claim;” that on November 23, 1885, he had conveyed to Largey a one-half interest therein, to the defendant Zenor a one-fourth interest, and subsequently to the defendant Tong a one-fourth interest; and that by these conveyances the said Upton had parted with all interest he ever had in the ground covered by the Comanche claim, and therefore that the plaintiff acquired no interest by his conveyance from Upton through Frank. There are also other affirmative matters set forth in the answer, but it is not necessary to give them special notice.

The plaintiff, by replication, joined issues upon the first two defenses, and pleaded, in avoidance to the last, that the Grand Prize location ivas made by Upton in order to hold the ground covered by tbe Comanche claim in case it should be adjudged in an adverse suit then pending’ between the claimants under that location and their adversaries, who claimed under another location, known as the “Smelter Claim,” that the- Comanche location was.invalid, and that, the latter having been held to be valid, the Grand Prize location had been abandoned by all parties in interest, including the defendants, the grantors of the Comianche Mining Company. A detailed statement of the claims of the parties and the issues between them may be found by reference to the opinion of this court in Wetzstein v. Boston & Montana Consol. C. & S. Mining Co., 26 Mont.193, 66 Pac. 943.

The foregoing summary is sufficient to make clear how the questions to be decided herein arose. A trial in the district court was had to a jury, which made special findings of fact, and also returned a general verdict for the defendants. Upon motion of the defendants, all the special findings, save one, were adopted; and upon them, with others made by the court, a judgment was rendered and entered in favor of the defendants. The plaintiff has appealed from the judgment and an order denying him a new trial.

The record in this case is voluminous. The assignments of error are very numerous, and the briefs filed by counsel cover a wide range of discussion. To discuss all the questions raised and submitted would be a bootless task. We have examined them all with that degree of care and patience which the interests at stake and the earnestness and- ability displayed by counsel in presenting them deserve. We have not been able, however, to find that the plaintiff has suffered prejudice by any decision or ruling made by the trial court during the progress of the case.

1. It is argued by counsel for the plaintiff that tire instructions submitted to tire jury are conflicting, and that, taken together, they reveal the fact that the trial court entertained an erroneous view of the principles of law applicable. The result is, counsel say, that the rights of the parties have been adjudged upon a wrong theory, and therefore that the plaintiff has suffered prejudice. We shall not indulge in speculation as to what influence the instructions, if erroneous, exerted upon the minds of the jury. This is a suit in equity. The findings of the jury in such cases are advisory only. Ultimately the findings and the decree based thereon must be regarded as emanating from the judge, and the correctness of the result must be determined by a review of the action of the judge, without regard to the findings of the jury. This court has so held in many cases. (Lawlor v. Kemper, 20 Mont. 13, 49 Pac. 398; Power v. Lenair, 22 Mont. 169, 56 Pac. 106, and cases cited.) Even if the contention of the plaintiff were maintainable in a suit in which it was made apparent that the findings of the jury were adopted and judgment entered thereon without careful consideration by the judge, it cannot be maintained in this case, for the reason that it appears that, after the findings were returned, the judge did not adopt them as a whole, without consideration, but set one of them aside, and made others after argument by counsel; thus indicating a careful examination of the evidence submitted, and the principles of law applicable. The findings are therefore, in' fact, the findings of the judge. The submission of the case to the jury for a general verdict, if erroneous (and we do not decide that it was), was, in view of what has already been said, error without prejudice, because the court disregarded it entirely.

2. The contention is made that the evidence is insufficient to sustain the findings. Under the view we entertain of the case, it will not be necessary to examine the evidence further than so far as it is pertinent to the first defense alleged. As was said in considering the effect of the judgment heiein in Wetzstein v. B. & M. C. C. & S. Mining Co., supra, if either one of the first two defenses shall be found to be sustained by the evidence, this will be conclusive of the rights of the parties without reference to the character and effect of the Grand P'rize deed to Largey. If Upton conveyed the interest in controversy herein to Collins, who thereafter conveyed it to Largey, the defendant corporation, under the subsequent conveyances to it by Largey and his asso-ciatos, became vested with an indefeasible title. There is no controversy but that the corporation is the lawful owner of an undivided three-fourths interest in the claim. Its title to a half interest came through Turner by conveyances executed by him to Largey and Zenor. The interests conveyed by Warren and Bielenberg were obtained by mesne conveyances from Zenor. The T'ong interest is not questioned. The other defendants, except Mantle and the defendant corporation, were never vested with any interest except such as they obtained as stockholders in the corporation. The only interest Mantle ever had was by virtue of the deed from Collins to Largey purporting to convey the disputed interest. Mantle paid one-half of the purchase price to Collins, but the title was taken by Largey, who thereafter held for himself and in trust for Mantle until the whole property was conveyed to the corporation. It is not controverted that Collins made a conveyance to Largey in 1884. The plaintiff bases his claim upon a quitclaim deed from Upton to Frank, and a like conveyance from Frank to himself. The controversy upon this branch of the case then turns upon the question whether Upton made the conveyance to Collins in 1880, and thus devested himself of title, so that the plaintiff obtained no interest through the conveyance from Upton to Frank.

The court found that this conveyance had been made, though it appeared that it had been lost. A summary of the evidence tending to support this finding is the following:' Collins, who now resides in Skowhegan, in the state of Maine, testified that he was engaged in mining in Montana from 1867 to 1883; that in November or December, 1880, he was in Butte, on the way to visit his home in Maine; that he there met Upton, who proposed to sell him an interest in certain mining property in Butte, including a one-fourth interest in the Comanche claim; and that after some conversation he took a deed, and paid Upton $600 in cash. He stated that he had searched among his papers for the deed, but could not find it, and concluded that it had been lost among his other deeds, all of which he had lost. Lar-gey testified that Upton came to him in the spring of 1884, and, after telling him about the interests owned in various properties by Collins, — the Comanche among them, — -urged him to buy them; that he authorized TJpton to open negotiations with Collins; that Upton did so, conducting them by letter; that this correspondence resulted in an agreement on the part of Largey to buy all the interests for $2,500, and the payment by Largey of Collins’ share of the expenses of the litigation then in progress over the title to the claim; that thereupon Upton procured a deed from Collins, which purported to- convey a one-fourth interest in the Comanche claim; that Collins placed the deed in a bank in Butte, to be delivered to Largey upon payment of the sum of $2,500 ; that this sum was paid by Largey and Mantle, and the deed put upon record; and that subsequently the share of Collins in the expenses of the litigation,— one-fourth,- — -amounting to several hundred dollars, was paid by Largey and Mantle. Part of the correspondence between Upton and Collins is found in the record. It shows clearly that the negotiations had reference to the Comanche claim. At the close of the transaction, Largey paid Upton $100 for his services in procuring the deed. There was evidence tending to show that Collins, by the assistance of Upton, represented the Comanche claim from 1880 to 1884; sometimes doing the work himself, and sometimes paying Upton for doing it for him. There was also evidence tending to show that though the litigation over the title began in 1882, and was very expensive, and continued on down to the beginning of-1892, Upton never paid any greater share of the necessary outlay than one-fourth, and, after he finally sold the other fourth interest to Tong, he did not assist in representing the claim, or pay any further attention to- the litigation; the whole of the outlay thereafter being paid by Lar-gey, Tong, Mantle, Warren, and Zenor, who were interested in the claim. Furthermore-, it is not disputed that, after the relocation of the claim was made under the name of “Grand Prize,” Upton conveyed to Largey and Zenor, his co-owners at that time, the same interests, relatively, which they owned in the Comanche claim, retaining a one-fourth interest only. When he came to execute a bond to Tong for a deed in the autumn of 1888, pursuant to the deed subsequently made on February 28, 1889, be described bis entire interest therein as an undivided one-fourth. So little attention did he give to the matter after-the date of this deed to T'ong’ in 1889, -that, though the litigation over the title was pending in the supreme court of the United States, he did not, upon his own oath, know of the decision of that court in his own favor until more than two- years after it was rendered.

These facts, with others which appear in the evidence, were amply sufficient to warrant the finding on this branch of the case. To be sure, there is a conflict in the evidence; but, the trial court having made the finding as it did, this court has no power to disturb it.

Nor do we find anything in the evidence to justify an inference that Largey and his associates fraudulently excluded Upton from the patent. It appears that in 1882 one James Larkin and others applied for a patent to- the Smelter claim. This claim conflicted with the Comanche claim. Upton, Largey and Zenor (the first then owning a fourth interest in the latter claim) brought an adverse suit in the district court of Silver Bow (then Deer Lodge) county. Collins was not a party to this suit. The history of the subsequent litigation will be found in the case of Upton v. Larkin, 5 Mont. 600, 6 Pac. 66; Id., 7 Mont. 449, 17 Pac. 728; and in Larkin v. Upton, 144 U. S. 24, 12 Sup. Ct. 614, 36 L. Ed. 330. In 1890, and during the pen-dency of this suit in the supreme court of the United States, the defendants Largey, Warren, Tong, Zenor and Bielenberg instituted proceedings for a patent. They obtained from the clerks of the district and supreme courts of Montana certificates that no suits were pending in these courts involving the title. They furnished these to the land office at Helena, with abstract of title, which showed an interest in themselves and -Upton, and were allowed to make entry. Subsequently, upon application of Larkin and the other defendants in the adverse proceedings, this entry was held for cancellation. Thereupon the applicants for the Comanche patent appealed to the department at Washington. • This appeal was pending when the final judgment was rendered in Upton v. Larkin, 144 U. S. 24, 12 Sup. Ct. 614, 36 L. Ed. 330. Tlie applicants for tlie Comanche patent then presented a certified copy of the final judgment to the- department in Washington, and obtained their patent. It does not appear from! the record in this case how Upton’s name came to be omitted from the patent. Such, however, was the fact. What evidence of title in the applicants was presented with the judgment, other than the abstract which was used upon the original entry, does not appear. The presumption must be indulged either that sufficient other evidence was presented to warrant the omission of Upton’s name, or that the officers of the department omitted his name by mistake. But conceding either presumption to be correct, no harm was done to Upton, in view of the fact that he had theretofore parted with all interest in the claim. Whether the proceeding was fraudulent upon the original entry, or irregular upon final application to (.he department at Washington, was a question of no concern to him.

But counsel insist that the plaintiff purchased without notice of the claim on the part of the corporation, for a valuable consideration, and therefore, as against this defendant, which purchased with notice, his title is superior; it appearing that Upton’s deed to Collins was never put upon record. This position is untenable, for two reasons: In the first place, the evidence shows clearly that both Frank and Wetzstein prior to and at the dates of their respective conveyances had full notice that the corporation was in possession of the claim under its grant from the patentees, and asserting title under the Collins deed. In the second place, their conveyances are both mere quitclaim deeds, and purport.to convey only such rights as their respective grantors had at the time they executed them. Under such a deed the grantee- takes such title only as the grantor has. (McAdow v. Black, 6 Mont. 601, 13 Pac. 377; Butte Hardware Co. v. Frank, 25 Mont. 344, 65 Pac. 1; Devlin on Deeds, Sec. 671.) The plaintiff therefore stands upon no higher ground than would Upton himself, were he demanding the relief now sought by the plaintiff, his mesne grantee.

The findings of the trial court upon this branch of the case> express and implied, are consistent, are amply sustained by the evidence, and are sufficient to support the judgment. It is not necessary, therefore, to investigate the question whether the-findings on the other two^ branches of the case are conflicting or defective, or are insufficient.

3. There are many assignments of error upon the admission and exclusion of evidence. We shall notice only one of them. It is said that all the evidence touching the Grand Prize location, and the conveyances of the interests therein by Upton, shotdd have been excluded as incompetent and immaterial,— Upton having testified that this location was made merely for the purpose of protecting the interests of himself, Largey and Zenor, — and that after the final decision of the supreme court of the territory in Upton v. Larkin, 7 Mont. 449, 17 Pac. 728, confirming their title under the Comanche location, the Grand Prize was abandoned. Without pausing to consider the effect of the deeds made by Upton, this evidence was clearly competent and material, as tending to establish the disputed conveyance to Collins. Upton, according to his own testimony, had located the Grand Prize claim in order to protect his and his co-owners’ interests. The deeds to Largey and Zenor he executed and delivered to them without demand. Upon the theory that he had conveyed to Collins in 18 SO, these deeds conveyed away jiist such interests as should have been conveyed, and left him with all that he was entitled to retain. It was thought at that time that they had som;e value as evidence of title, for the location was made under the advice of counsel employed in the case of Upton v. Larkin to forestall a possible judgment declaring the invalidity of both the Comanche and Smelter locations. In the light of the other facts showing Upton’s behavior prior to and after the date of the last deed to C'ollins, this evidence cannot be explained upon any other theory than that he had executed and delivered that deed, unless it be upon the theory of a mistake, which was not an issue in the case.

The judgment and order denying a new trial are each affirmed at the cost of the appellant.

Affirmed.


author: MR. JUSTICE PIGOTT

text:
    STATE, Respondent, v. CONNORS, Appellant.
    (No. 1,712.)
    (Submitted November 10, 1902.
    Decided November 24, 1902.)

      Criminal Law — Judgment—Form—Prior Conviction.

    under I’enal Code, Sees. 1232, 2146, 2131, a judgment that defendant “be imprisoned in the state prison for the term of ten years, five years upon the conviction for assault in the second degree, and five years for the prior conviction of a felony as by the statute made and provided,” is not void as to the five years for former conviction, since the division of the term into equal parts, and the assignment of each part to its supposed function as a measure of punishment is merely redundant, and not ground for reversal, under Sections 2320, 2600, Penal Code.

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

    Ekank CoNNORs, alias E. J. Wade, was convicted of an assault in the second degree, and appeals.
    Affirmed.

      Mr. Raymond M. Place, for Appellant.

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

delivered the opinion of the court.

The defendant was convicted of an assault in the second degree, and appeals from the judgment of conviction.

The information charges him with the commission of the assault, and with having suffered a previous conviction of the crime of burglary in the first degree. The jury by their verdict found him guilty, and further found that the charge of previous conviction was true, but did not assess the punishment. The judgment, after setting out the proceedings had upon the trial, the verdict, and other matters, concludes in the language following: “It is therefore ordered and adjudged by the court that the said Frank Connors be imprisoned in the state prison for the term of ten years, five years upon the conviction for assault in the second degree, and five years for the prior conviction of a felony as by the statute nlade and provided, at hard labor * *

The single point made is that the judgment is irregular and void in so far as it purports to impose upon the defendant punishment for the prior conviction of a felony. We are asked to modify the judgment by eliminating this part of it, and thus reduce the term of imprisonment from ten to five years. Counsel concedes that the defendant, having suffered a prior conviction for a felony, might lawfully be sentenced to ten years’ imprisonment for the crime of assault in the second degree, but argues that the judgment in form sentences him “specifically for a prior conviction.”

The contention is without merit. Section 401 of the Penal Code declares that assault in the second degree is punishable by imprisonment in the state prison for not less than one nor more than five years, or by fine, or both. By Section 822 of the Penal Code, burglary in the first degree is punishable by imprisonment in the state prison. Section 1232 of the Penal Code declares, among other' things, that “every person who, having been convicted of any offense punishable by imprisonment in the state prison, commits any crime .after such conviction, is punishable therefor as follows: * * (2) If the subsequent offense is such that, upon a first conviction, the offender would be punishable by imprisonment in the state prison for five years, or any less term, then the person convicted of such subsequent offense is punishable by imprisonment in the state prison not exceeding ten years.” Section 2146 of the Penal Code provides that when the fact of a previous conviction of another offense is charged in an information, the jury, if they find him guilty of the offense with which he is charged, m¡ust, also, unless the answer of the defendant admits former conviction, find whether or not he has suffered such former conviction. Section 2151 of the sanie Code provides that the court must assess and declare the punishment, and render judgment accordingly, if the jury fail to do so by the verdict.

The case at bar falls within Subdivision 2 of Section 1232, supra, and tlie court was authorized to impose the sentence of ten years for the crime of assault in the second degree. While the language, “five years upon the conviction for assault in the second degree, and five years for the prior conviction of a felony as by the statute made and provided,” used in .the judgment, is inaccurate, and, if standing alone, might possibly constitute prejudicial error, we are satisfied that the judgment, when read as a whole, and considered in the light of the statutory enactments to which'we have referred, is not open to attack upon the ground that it attempts to punish the defendant for a crime for which he had suffered a former conviction. The court manifestly intended to adjudge that the defendant be imprisoned for the term of ten years for the crime of assault in the second degree, five years being imposed for the crime, irrespective of the prior felony, and five years additional because of the prior felony. If there had not been a prior conviction, the term of imprisonment could not have exceeded five years; there being a prior conviction, the term could be enlarged to ten years. The court, or rather the judge, as is evident, meant to explain why the term fixed was, and ought to be, ten years instead of five or less. The attempted division of the term into equal parts, and the assignment of each part to its supposed function as a measure of punishment, neither adds to nor subtracts from the legal import and effect of the judgment, and is, under the circumstances, merely redundant. It is apparent that no substantial right of the defendant has been disregarded. A mere apex juris is not sufficient cause for tire reversal or modification of a judgment. (Sections 2320 and 2C00, Penal Code.)

Let the judgment be affirmed.

Affirmed.


author: MB. JUSTICE MILBUBN

text:
    STATE, Respondent, v. McDONALD, Appellant.
    (No. 1,842.)
    (Submitted November 11, 1902.
    Decided December 1, 1902.)

      Criminal Law —■ Larceny — Evidence — Instructions — -Appeal.
    It is not commendable practice for the court to submit written instructions to the jury with the signatures of the several counsel attached to them.

      Appeal from District Court, Silver Bow Countyj J. B. Mc-Clemán, Judge.

    GeoRGe A. McDonald was convicted of the crime o'f grand larceny. From the order denying his motion for a new trial and from the judgment he appeals.
    Affirmed.

      Mr. J. L. Hamilton, and Mr. B. 8. Thresher, for Appellant
    As the prosecution in this case was under the provision of an act of the Montana legislature, approved February 23, 1897, amending Section 883 of the Penal Code of .this state, relating to grand larceny, it was immaterial what was the value of the horses described in the information. This act makes the stealing of the horses claimed by the witness, George Van, grand larceny, regardless of their value. (Secs. 1 and 2 of an Act to amend Sec. 883 of the Penal Code of Mont,, p. 247 of Laws of 1897.)
    The overruling of the objection of the defense, at the trial, to1 the question, “State that conversation,” asked of the deputy sheriff, James Fitzsimmons, a witness for the state, as to an alleged statement made to him by the defendant, McDonald, at the time of his arrest, was error, and the testimony of this witness over the said objection was prejudicial to the defendant. The authorities are not uniform, as to the requirements of an alleged confession to an officer, to permit of its introduction in evidence at the trial, yet under none, was that testified to by the witness, James Fitzsimmons, competent or admissible. There should have been at least a, prima* facie case made by the witness as to the alleged statements of McDonald being free and voluntary, without promise of immunity or reward. The testimony of the witness upon this point was merely his own conclusions. In People v. Boto, reported in 4-9 Cal. page 67, the court say: “When such a confession is offered in a criminal case, it is incumbent on the prosecution to lay the foundation for its introduction by preliminary proof showing prima facie that it was freely and voluntarily made.” It is almost universally held that such confessions must be absolutely free and voluntary. We cite only a few of the many decisions to this effect: (Ter. v. McGlin, 1 Mont 394; Ter. v. Underwood, 8 Mont. 131; U. 8. v. Weihel, 8 Mont. 124; People v. Soto, 49 Cal. 67.) The deputy sheriff did not caution McDonald that these alleged statements would be used against him. This was necessary. (Baker v. State (Tex.), 8 S. W. 23; Searcy v. State (Tex.), 13 S. W. 782.)
    The motion to instruct the jury at the close of the state’s case in chief, should have been sustained. The trend of modern decisions is to the effect that recent possession of stolen property of itself does not place upon the defendant the burden of explaining such possession and that before he can be required to offer any explanation, the prosecution must furnish additional evidence tending to implicate him in the larceny charged. (Ter. v. Doyle, 7 Mont. 245; People v. Fagan, 66 Cal. 534; People v. Swinford, 57 Cal. 86; People v. Noregea, 48 Cal. 123; People v. Ah Ki, 20 Cal. 178; People v. Chambers, 18 Cal. 382.) It is very generally held that an extrajudicial confession is not of itself sufficient evidence to warrant a conviction. There must be other corroborating, independent proofs. (Roberts v. People (Colo.), 17 Pac. 637; Wharton’s Crim. Ev. Sec. 632; McLain v. Com. (Pa.), 1 Atl. Pep. 45; People v. Jaelme (N. Y.), 8 N. E. Pep. 374; U. 8. v. Bassett (Utah), 13 Pac. 237; State v. Penny (Iowa), 80 N. W. 561; Floyd v. Slate (Ala.), 2 Southern, 683; Willard v. State (Tex.), 11 Anier. State P. 197; IT arris v. Slate (Tex.), 19 Anier. State P. 837.) If from the whole evidence of t-lie state there could be drawn an inference that McDonald, after the larceny of the horses by another, had come into the possession of the stolen property, knowing it to have been stolen, still there 'would be nothing’ in this view to warrant his conviction of the crime charged in the information. (State v. Bechnitz, 20 Mont. 488; Slate v. Kinder•, 22 Mont. 516.) There being no evidence before the court and jury tending to connect the defendant, McDonald, with the alleged larceny of the horses in Silver Bow county, the court should have instructed the jury to acquit. ‘ (State v. Welch, 22 Mont. 92; State v. Fisher, 23 Mont. 540.)
    It was prejudicial error for the court to permit the jury to take to their room, when retiring to consider their verdict, the thirteen instructions offered by the prosecution, with the words, “Peter Breen, County Attorney,” endorsed thereon, and the four instructions offered by the defense, with the following endorsement thereon: “L. J. Hamilton and B. S. Thresher, Attorneys for Defendant.” (Penal Code, Sec. 2010, Subd. 5; Laws of 1901, page 160; Laws of 1891, pages 241-242; Constitution, Art. V, Sec. 23.) Tire giving of an oral instruction to a jury in a criminal case, without the defendant’s consent, is reversible error, and consent is not to be presumed from his presence and failure to make objection when the oral instruction is given. (State v. Fisher, 23 Mont. 540; State v. Harris, 23 Mont. Y9; People v. Wopner, 14 Cal. 48Y; People v. Chares, 26 Cal. Y8; People v. Prospero, 44 Cal. 186; People v. Ilersey, 53 Cal. 5Y4; People v. Bennington (Kan.), 25 Pac. 9l.)
    Under the provisions of Subdivisions 5 and 6 of Section 20 Y0 of the Penal Code, permitting the jury to take to their room the instructions numbered 2, 8 and 9, with the refused portions appearing thereon, in such condition that the same corrld be easily read by the jury, was in effect a violation of the prohibition that “No refused instructions must be read in the hearing of the jury.” The authorities cited in support of the last point are applicable to this.
    Instruction No. 1, offered by the prosecution, was as follows: “The defendant, George A. McDonald, by information, is ac-cusecl of tlie crime of grand larceny, alleged to have been committed in Silver Bow county, state of Montana, on or about the 15th day of December, A. D. 1901. The defendant pleads not guilty. This plea requires proof upon the part of the prosecution of all the material allegations contained in the information beyond a reasonable doubt.” This instruction is defective, in that it contains no statement of these material allegations and no advice to the jury as to the character of the proof necessary to the support thereof. This omission is not remedied by any other instruction given. We urge that neither Section 2070 of the Penal Code, nor Subdivision 5 thereof, has been amended, and that the method of giving instructions by the court, after the arguments of counsel, provided for by Section 1080 of the Code of Civil Procedure, and by this subdivision made applicable to the giving of instructions in criminal cases, is still the only lawful way to instruct the jury in a criminal trial. It was therefore reversible error to give the instructions before the arguments of counsel.
    Whatever the conflict in authorities as to whether the recent possession of stolen property places upon the defendant the burden of explaining such possession, it is uniformly held that only a reasonable explanation is required. (State v. Payne (Wash.), 3-1 Pac. 317.) A defendant should not be convicted because of mere suspicion of having committed the crime charged. (State v. Whorton, 25 Mont. 11.)

      Mr. James Donovan, Attorney General, for the State.
   MB. JUSTICE MILBUBN

delivered the opinion of the court.

The defendant, appellant, was convicted in the district court of Silver Bow county of the crime of grand larceny, having been informed against with one other. Erom the order denying his motion for a new trial and from the judgment he has appealed.

Thirteen assignments of error are made. We have carefully considered all assignments, and we do not find any error made by the court.

We add, however, that the submitting of written instructions to the jury with the signatures of the several counsel attached to them, as in this case, is not to be commended.

Let the order and judgment appealed from be affirmed.

Affirmed.


author: ME. CHIEF JUSTICE BRANTLY

text:
    In re DAVIS’ ESTATE.
    (No. 1,799.)
    Motions to Dismiss Appeals.
    (Submitted July 7, 1902.
    Decided December 4, 1902.)

      Probate Proceedings — Distribution of Estate — Decree—Appeal ■ — Neiu Trial.

    1. The right of the administrator with will annexed, and of an heir of a beneficiary under the decedent’s will, to appeal from a decree granting a distribution of tbe estate, in proceedings under Code of Civil Procedure, Sec. 2835, authorizing- legatees to present petitions to the judge or court for tbe distribution of the estate, and requiring the giving of notice of the application to the executor or administrator and all persons interested, and in which proceedings the administrator and heir both appeared in opposition thereto, will not be determined on a motion to dismiss the appeals, based on the theory that they are not aggrieved by the decree; they being “parties aggrieved,” within Code of Civil Procedure, Sec. 1721, granting the right of appeal to parties aggrieved.
    2. A motion to dismiss an appeal presents generally but two questions,— whether the appeal lies from the particular order or judgment, and whether, if it does, the appellant has prosecuted it as required.by the statutes and the rules of the supreme court.
    3. Code of Civil Procedure, See. 2921, declares that the provisions relative to new trials and appeals in civil actions shall apply to proceedings mentioned in the title relating to probate proceedings. Section 2923 provides for the trial of issues of fact joined in probate proceedings. Section 2924 provides for a trial by the court or judge in case no jury is demanded, and authorizes either party to move for a new trial on the same grounds as in civil actions. Held, that parties opposing the granting of a decree for a distribution of the estate of a decedent in proceedings under Section 2835 may make a motion for a new trial where the decree directs the distribution.
    4. A contention that a motion for a new trial does not lie in proceedings for the distribution of a decedent’s estate under Code of Civil Procedure, Sec. 2835, because all the facts alleged in the petition were admitted by defendants, is without merit on a motion to dismiss an appeal from an order denying the new trial; that fact being a sufficient reason for an affirmance of the order on the hearing, but no reason for a dismissal of the appeal.
    5. under the express provisions of Code of Civil Procedure, Sec. 1722, an appeal lies from an order denying a motion for a new trial in proceedings for the distribution of an estate under Section 2835.

      Appeal from District Court, Silver Bow County; B. W. Har-ney, Judge.

    PeogeediNgs for the distribution of tbe estate of Andrew J. Davis, deceased, by Henry A. Root and others, against John H. Levson, administrator with the will annexed, and another. From a decree ordering the distribution, and from an order denying a new trial, defendants ap-peal.
    Motions by plaintiffs to dismiss the appeals denied.

      Mr. E. N. Harwood, and Messrs. Forbis & Madison, for Appellants.

      Messrs. Clayberg & Cunn, and Mr. Chas. II. Leonard, for Respondents.
   ME. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Motions to dismiss appeals. On February 9, 1901, ITenry A. Root, Ellen S. Cornue, Joseph A. Coram, and Sarah Maria Cummings filed their petition in the district court of Silver Bow county, in the matter of the estate of Andrew J. Davis, deceased, which had for some years been pending for settlement in said court, asking that $100,000 in money and 100 shares of bank stock, then in the hands of John H. Leyson, administrator, be distributed to the persons interested in said estate, in shares in proportion to their respective interests. The said Andrew J. Davis died testate in Silver Bow county on March 11, 1890. Under the terms of his will, John A. Davis, a brother, was made sole legatee, after the payment of several small legacies specifically provided for. When the will was presented for probate, certain of the next of kin interposed contests. These contests were pending until March 27, 1895; John A. Davis, the proponent of the will, having in the meantime died, and John E. Davis, his son, having been appointed his administrator. On the latter date, by compromise agreements, to* which, it seems, all the next of kin claiming an interest in the estate, except those hereafter mentioned, or their assignees or representatives, were parties, these contests were settled, and by a decree of that date the will was admitted to probate. The decree also determined the respective shares to which, under the agreements, the estate cf John A. Davis, the residuary legatee, and each of the contestants, were entitled. John H. Leyson was then appointed administrator with the will annexed, the administrator of John A. Davis having been permitted by an order of court to effect the compromise on behalf of the estate of his father. Thereafter still another contest was instituted by other next of kin of Andrew J. Davis. After pending for some time this contest was also settled by compromise agreements, the respective shares of the various claimants being declared or decreed as follows, subject to the payment of the specific legacies provided for in the will: That John E. Davis, as administrator of tbe estate of John A. Davis, deceased, was entitled to have and receive 200-1100 of tbe estate in kind; tliat Henry A. Hoot, Sarab Maria Cummings, Mary L. Dunbar, Elizabeth S'. Ladd and Ellen S. Cornue were entitled to 250-1100; that Harriet H. Sheffield and Henry A. Davis were entitled to 44-1100; that Elizabeth S. Bowdoin, Calvin P. Davis and Harriet Wood were each severally entitled to have 50-1100; that Elizabeth A. Smith was entitled to have 25-1100; and that Andrew J. Davis and Charles II. Palmer, as trustees, appointed by a compromise agreement dated April 28, 1893, were entitled to have 431-1100 of said estate in kind, to be held and disposed of by them pursuant to the provisions of the trust created by that agreement. It is not necessary to state here what are the specific provisions of that agreement.

The petition sets forth with particularity all these proceedings. It further alleges that m'ore than twelve months have elapsed since the publication of the notice to creditors as provided by law; that there are now in the hands of the administrator about $115,000 in money, besides said bank stock; that all special bequests provided for in the will have been paid; that there are no claims against the estate, except the expenses of administration, accrued and to accrue; that the sum of $25,-000 will be sufficient to meet all demands of this character; that the said money and bank stock can safely be distributed, without injury to the estate, or any claimant of an interest therein; and that prior to the filing of the petition said Elizabeth S.Ladd, with her husband, Charles II. Ladd, and Mary Louise Dunbar, had, for a valuable consideration, assigned, transferred and conveyed their interests in the estate to the petitioner, Joseph A. Coram, who is now entitled to receive, the same. It is also stated that Harriet Wood is dead, and that one Harriet Holton is her successor in interest. Subsequent to the filing of the petition, Harriet H. Sheffield and Henry A. Davis appeared by counsel and joined in the prayer thereof.

Thereupon, after notice, John H. Leyson, administrator, and John E. Davis, administrator of John A. Davis, appeared and filed separate answers to the petition. The petitioners then filed their replications. Upon the issues thus presented the court heard evidence, and, after consideration, granted the order as prayed. John Ií. Leyson, as administrator, and John E. Davis, as representative of the interests of his father’s estate, each moved for a new trial. These motions being denied, both appealed to this court from the order denying a new trial and from the order of distribution. Motions have been submitted by the petitioners, asking that all these appeals be dismissed.

1. The principal ground of the motions directed at the appeals from the order of distribution is that an appeal does not lie in favor of either of the appellants, because they are not aggrieved by the action of the court in granting the order. Counsel say that the administrator of the estate has no interest by virtue of which he may exercise the right of appeal, and that John E. Davis is not aggrieved, because the share to which the estate represented by him is entitled will be retained by the administrator until final distribution. These are questions which cannot be considered upon these motions. Speaking generally, a motion to dismiss an appeal can present but two questions, viz., whether the appeal lies from the particular order or judgment, and whether, if it does, the appellant has failed to secure it by neglecting to pursue the procedure necessary to that end, or has lost it by neglecting to prosecute it as required by the statute and the rules of this court. If it appears from the record that the appellant was a party to the proceeding in the court below, from a final determination of which an appeal lies, and that he has properly perfected and prosecuted an appeal from the final judgment or order entered therein, this is a sufficient reason why the motion to dismiss the appeal should be denied. He is a “party aggrieved,” within the meaning of Section 1721, Code of Civil Procedure, granting the right of appeal to such party from any of the orders enumerated in Section 1722, as amended by Session Laws of 1899, p-. 146, and whether or not he has been in fact prejudiced or aggrieved by the particular order or judgment is a question to be determined after a hearing upon the merits.

The application to the trial court was made under the provisions of Section 2835 of the Code of Civil Procedure. After directing wliat procedure shall be observed, and notice given, this section provides that “the executor or administrator, or any other person interested in the estate, may appear at the time named [in the notice] and resist the application. * * *” Both of the appellants appeared on behalf of the interests represented by them, respectively, as it was their right and duty to do, and resisted the application. Section 2835 grants them not only the right to resist, but also to resist effectually, and this right puts them within the class to whom the right of appeal is assured under the provisions of Sections 1721 and 1722, cited. The exact question here presented,, so far as the administrator is concerned, was decided by this court in In re Phillips’ Estate, 18 Mont. 311, 45 Pac. 222. In that case an application was made for a partial distribution under the provisions of the Second Division of the Compiled Statutes of 1887 (Sections 284-287), allowing it to be made after the lapse of four months from the issuance of letters to the administrator or executor. These sections are incorporated in the Code of Civil Procedure of 1895 as Sections'2830-2833. Section 28G of the Compiled Statutes, supra, (Code of 1895, Section 2832), provides that the executor or administrator, or any person interested in the estate, may appear at tire time named and resist the application. In view of this provision, and the provision of Section 445 of the First Division of that Code, permitting an appeal from the order, it was held that the executor or administrator was entitled to an appeal. The court gave its reasons in the following language: “The reason of the statute must be that the executor, who is strictly bound to see to it that the estate is preserved for distribution to creditors and others who may be entitled thereto upon final distribution, is interested in resisting any order of distribution, made before final settlement, by which the assets of the estate may be dissipated to the injury of creditors’ rights. But when final distribution is ordered, and his official trust is about terminated, and the creditors have had full time to present their claims, and all claims have been presented, and the heirs and legatees are in court, having done his duty by preserving the estate for distribution, then, as executor, he can have no interest in a claim of one legatee as against others, at the expense of the estate.”.

But whether the reasons be there correctly stated or not, the fact remains that the administrator falls within the provisions of the statute. It was so held by this court upon application for a writ of review to have annulled the order now before us. (State ex rel. Leyson v. District Gourt of Second Judicial Dist., 26 Mont. 378, 68 Pac. 411.) The same is true of the representative of the estate of John A. Davis. He has a vital interest in the disposition of the assets of the estate, and falls within the same category with the administrator. None of the other .grounds of the motions challenge the right of appeal, but present questions which can be determined only after a careful examination of the record, and by a decision of questions which go to the merits of the controversy. This may not now be done, whether there be merits in the appeals or not. The motions directed at the appeals from the order of distribution must therefore be denied.

2. The questions presented by the motions to dismiss the appeals from the order denying a new trial are more difficult, but we think they-must also be denied. The grounds of the motions are that under the statutes of Montana no such practice is known as a motion for a new trial in a case or proceeding of this character, and that there could not have been a re-examination of any issue of fact, within the meaning of the statute (Code of Civil Procedure, Section 1170), because all the material facts alleged in the petition were admitted. The argument of respondent is that upon application of this character no issues of fact can arise, a re-examination of which may be had upon a motion for a new trial, and that, even if such an issue could arise, the wording of Section 2835, supra> implying that the hearing may be had before the court or judge, contemplates a method of procedure inconsistent with the provisions of Part II of the Cbde, which provides for trials by the court only, with or without a jury, and never by the judge. Sections 2921, 2923 and 2924 of the Code of Civil Procedure provide:

“Sec. 2921. Tbe provisions of Part II of this Code, relative to new trials and appeals — except in so far as they are inconsistent Avith the provisions of this Title — apply to the proceedings mentioned in this Title.”
“Sec. 2923. All issues of fact joined in probate proceedings must be tried in conformity with the requirements of Article II, Chapter II, of this Title, and in all such proceedings the party affirming is plaintiff, and the one denying or avoiding is defendant. Judgments therein, on the issue joined, as well as for costs, may be entered and enforced by execution or other-Avise, by the court or judge, as in civil actions.”
“Sec. 2924. If no jury is demanded, the court or judge must try the issues joined. If on Avritten demand a jury is called by either party, and the issues are not sufficiently made up by the Avritten pleadings on file, the court- or judge, on due notice to the opposite party, must settle and frame the issues to be tried, and submit the same, together Avith the evidence of each party, to the jury, on which they must render a verdict. Either party may move for a new trial, upon the sam© grounds and errors, and in like manner, as provided in this Code for civil actions. If the trial of the issues joined requires the examination of an account, the court or judge must try the matter or refer it, and no jury can be called.”

The language of the latter tAVO of these sections is very positive and comprehensive. By reference to Article II, Chapter II, of this Title (Title XII), Ave find that its provisions contemplate the same procedure, in all essential particulars, as is required in Part II, relating to trials in civil actions. These pro-visionsj therefore, not only permit, but seem to require, all issues of fact to be tried by the court, with or without a jury, at the option of either party, except in so far as other provisions may be found in this Title with which they are inconsistent. The only provision Avhich seems to be inconsistent with this theory is the provision contained in Section 2913, which declares that all orders mentioned in this Title and all proceedings in matters of probate may be made or heard before the court or judge at chambers-, and that Avhen a jury is needed the court or judge may order the trial to take place in court, as provided by Part II of this Code. But we do not think this provision is intended to apply to the trial of matters where contests arise upon issues of fact made up by formal pleadings, or framed by the court or judge under the provisions of Section 2924, supra. There is no mode provided by which a jury may be summoned and the proceedings conducted by the judge at chambers in conformity with Part II, relating to trials in civil cases. ■ Eor this reason we think that the provisions of Section 2913 are entirely consistent with the idea strongly implied by the other sections cited,- — -that contests of this kind must be conducted with the formalities and procedure applicable to- ordinary actions, with the aid of all the court machinery necessary for that purpose.

If this is the correct theory, — and we think it is, — then, whenever an issue of fact is made, and the trial is had in the ordinary way, a motion for a new trial will lie, and a re-examination of the issues may be had. “It would be impracticable to enumerate the cases in viiich a motion for a new trial is appropriate in probate proceedings, but it may be stated generally that whenever the action of the court which is invoked is dependent upon the existence of certain extrinsic facts which are-presented to it for determination in the form of pleadings, and are to be decided by it in conformity with the preponderance of the evidence offered thereon, an issue of fact arises, which, after its decision, may be re-examined by the court upon a motion for a new trial.” (In re Bauquier’s Estate, 88 Cal. 302, 26 Pac. 178, 532.) The general rule thus stated is in conformity with the spirit of the provisions under consideration. At the same time it is clearly the policy of the Title relating to probate practice and proceedings that all dilatory proceedings should be curtailed as far as possible. Under the rule above stated, we think a-motion for a new trial was proper in the present case, for a trial ivas had upon supposed issues made up by formal pleadings.

It is said by counsel that there was in fact no issue made up by the pleadings which the court could try upon an application of this kind, because all the material facts were admitted. If this be true, it is a sufficient reason why the order should be affirmed upon the hearing, but no reason why an appeal from the order should be dismissed. The section of the statute under which the proceeding was brought contemplates cases in which important issues may be made, and upon which the court is required to make findings of fact upon the preponderance of the evidence. Whether'such issues were in fact made in the present case, and the appellants pursued the proper course to have them re-examined on this motion for a new trial, is a consideration which* goes to the merits of the controversy and not to the right to the particular remedy sought to be applied. In cases where a motion for a new triál may be made, an appeal lies from an order denying it, though the record on appeal contains no statement or bill of exceptions, properly settled, upon which it is predicated. In such cases the appeal will not be -dismissed on motion because the proper procedure has not been observed. (Beach v. Spokane Ranch & Cattle Co., 21 Mont. 9, 52 Pac. 560; In re Reilly's Estate, 26 Mont. 358, 67 Pac. 1121,) The proper motion in such a ease is for an affirmance of the order. So-, if the case belongs to. a class in which a motion for a new trial may be a proper remedy, the question whether there were material issues of fact tried by the court below, which could be re-examined on a motion for a new trial, will not be determined on a motion to dismiss the appeal, but will be considered as affecting the merits of the motion for a new trial. •

As to' the right of .appeal from the order there can be no controversy. This is gi anted under Subdivision 2 of Section 1722. This provision applies to matters in probate proceedings as well as to ordinary civil cases. (Estate of Tuohy, 23 Mont. 305, 58 Pac. 722; In re Bouquier’s Estate, 88 Cal. 302, 26 Pac. 178, 532.)

The motions are therefore denied.

Denied.