author: Per Curiam.

text:
    BOSTON & MONTANA CONSOLIDATED COPPER AND SILVER MINING CO., Appellant, v. MONTANA ORE PURCHASING CO. et al., Respondents. In the matter of the petition of the respondent Montana Ore Purchasing Co.
    (No. 1,559.)
    (Submitted February 16, 1901.
    Decided February 16, 1901.)
    Application for leave to file a petition for- a rehearing on the question of the qualification of F. Augustus Heinze as surety on a bond. Application denied.

      Messrs. Forbis & Evans and Mr. Wm. H. DeWitt, for Appellant.

      Messrs. McHatton & Cotter and Messrs. Toole & Bach, for Respondents.
   Opinion and order:

Per Curiam.

The petition of the respondent Montana Ore Purchasing Company praying the court to grant a rehearing on the question of the qualification of F. Augustus Heinze as surety on the bond or undertaking of $550,000 heretofore filed in the action above entitled, or, in the alternative, that a re-examination of said Heinze as surety on said bond or undertaking be allowed, so as to enable him to give a detailed statement as to the value of all his property, to the end that the Montana Ore Purchasing Company and said Heinze may thereby be enabled to protect themselves as to their credit and financial standing, and praying also that the record of the examination of said Heinze as surety be corrected in respect of certain alleged errors referred to in the petition, is presented in open court, together with the affidavits of F. Augustus Heinze and Arthur P. Heinze in support thereof, and leave is asked to file the same, which motion the Court takes under advisement:

And now, upon consideration of the subject-matter of the petition, the Court is of the opinion that no further proceeding is necessary, since no just or fair construction of the language used in the order of January 22, 1901, touching the qualification of the sureties on the additional bond, can be made to the effect that the Court believed or held that as a matter of fact the said F. Augustus Heinze was or was not worth as much as he claimed to be, namely, ten million ($10,000,000) dollars. The Court is of the opinion that the only reasonable construction of which the language of the order is susceptible is that upon the evidence as submitted it did not appear that said Heinze had qualified in a sum in excess of the sum of $200,000, named in the Court’s order, over and above his liability on the previous bond, exclusive of the stock owned by him in the Montana Ore Purchasing Company, as it was apparent to the Court that the surety did not describe in detail the property which ho claimed to own, his reference to his property being with some exceptions in general terms, and not of sufficient particularity to give the Court the information necessaiw on a healing for the pul-pose of justification.

It appearing therefoi*e that the Court did not decide or intend to hold that said F. Augustus Heinze was financially responsible (after excluding his shai*es in the capital stock of the Montana Ore Purchasing Company) to the extent of $200,-000 only, but did determine simply that the evidence as taken and reported at the particular hearing failed to show that said Heinze had qxxalified ás surety for more than $200,000 upon the additional bond or undertaking required to be given by the order of December 5, 1900, and that said order coxxld in no wise be interpreted as declaring him to be actually wórtlx less than the amount ($10,000,000) which on the hearing he asserted the net valxxe of his properly to be, without properly specifying the various items thei*eof, going to establish his qualification in an amount exceeding $200,000; and it further appealing that the order of January 22, 1901, was in all respects correct upon the evidence as taken and reported:

The Court orders that the application for leave to file said petition be and the same is hereby denied.

Denied.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY,

license: Public Domain

text:
    HEINZE et al., Respondents, v. KLEINSCHMIDT, Administrator, et al., Appellants.
    (No. 1,542.)
    (Submitted October 4, 1900.
    Decided February 25, 1901.)

      Mines and Mining — Tenants in Common — Partition—Receiver — Second on Appeal.

    1. In a suit for partition between tenants in common a court of equity lias power to appoint a receiver; but this power should be exercised with great caution lest injury be done to tlie rights of a co-tenant, hence in any such case where an appointment is sought there must be shown a legal or equitable right, reasonably clear and free from doubt, attended with danger of loss, and that no injury will result to the party whose rights are thus invaded.
    2. Mere colorable ouster on the part of a tenant in common who is in possession of a mining claim by the consent of a co-tenant who has brought a suit for partition, and the mere fact that the care of the property involves considerable expense, will not authorize the appointment of a receiver pending the final hearing 'of the suit.
    3. Where a co-tenant has gone into possession of mining property by consent of his co-tenant, with the understanding that he was at liberty to engage in! mining, nothing short of a clear ouster and refusal to account, coupled with insolvency, would justify a court in taking the property from him through the agency of a receiver.
    4. Under Section 592 of the Code of Civil Procedure, each tenant in common has the right to have mining property stand as it is until it is finally partitioned, and to justify a ’court in invading this right and mining the property through a receiver there must be a very clear showing.
    5. Where a record on appeal contains much matter impertinent and immaterial, the party offending in this particular will be subject to the payment of costs.

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

    Action by E. Augustus Heinze and another against Carl Kleinschmidt, administrator of the estate of John D. Allport, deceased, and others. Erom an order appointing a receiver certain defendants appeal.
    Iteversed.
    Statement oe the Case.
    On January 22, 1900, the plaintiffs began their action in the district court of the Second judicial district to obtain a decree of sale for the purpose of partition of the Minnie Healy (patented) lode claim, situate in Silver Bow county. The complaint alleges that defendant Kleinschmidt is the administrator of the estate of John D. Allport, who died in October, 1895, and that the other defendants, except Miles Einlen, are his heirs at law, each being entitled to an undivided one-fifth interest in intestate’s estate, subject, to the possession of the said Kleinschmidt- for the purposes of administration; that at the time of his death said Allport, was seized in fee and was in possession of an undivided one-fourth interest in the Minnie Healy claim, the same being now in the possession of the defendant Kleinsehmidt undér his trust; that plaintiff Heinze is seized in fee and in possession of an undivided five-eighths, and the Johnstown Mining Company of an undivided one-eighth interest therein; that plaintiff Heinze is also the equitable owner of an additional one-twentieth of the said claim, which is the interest therein inherited by defendant Caroline V. Kelley as heir of said Allport; that defendant Kinlen asserts an interest in the claim, and particularly title to the interests belonging to plaintiffs, but without any foundation in fact therefor; that the said Kelley, aided and abetted by Kinlen, heretofore presented to the district court of the Kifth district (the same court which granted letters of administration to Kleinsehmidt) a certain paper purporting to be the last will of John D. Allport, and devising the whole estate to said Kelley, and proposed the same for pi'obate, but that said court, upon a hearing, had declared the same a forgery; that before the bringing of the present action said Kelley had entered into an agreement with Kinlen by which she had bound herself to convey to him all her interest in the claim; that Kinlen had thereafter, for a valuable consideration, assigned to plaintiff Heinze his rights thus acquired from Kelley, but that Kelley, with notice of Heinze’s rights under his assignment from Kinlen, had conveyed her interest by deed to Kinlen, who took and holds the same as trustee for Heinze, subject to the payment to Kinlen of $5,000, the amount he paid Kelley therefor, which said Heinze is ready and willing to pay; that notwithstanding these facts Kinlen claims this interest as his own; that Kinlen, by reason of his contract with Kelley, pretends and claims to have some right Or interest in the other undivided four-twentieths of the Minnie Healy claim, which belonged to John D. Allport at the time of his death, but that such claim is without foundation in fact; that, aside from the claims of Kinlen thus made, the rights of alb parties are free from adverse claims or incumbrances of any kind or character; and that the property, being valuable almost solely by reason of the copper ores deposited therein, cannot be partitioned otherwise than by a sale and distribution of the proceeds among the parties entitled. The Court is asked to determine the rights of the parties and decree the sale.
    On January 30th thereafter the plaintiffs filed their verified petition in this cause, asking for the appointment of a receiver pending the final hearing, alleging as grounds for relief the following: That the defendants Kleinschmidt, as administrator of Allport, and Mary A. Miller, having entered into the possession of the whole of the Minnie Healy claim and the workings therein, are now, and for a long time past have been, extracting, removing and converting to their own use the ores therein, excluding the plaintiffs therefrom and refusing to render them any account; that said defendants assert the right to occupy and possess the whole of the claim and to extract the ores therefrom, and that they will refuse to render the plaintiffs any account thereof, .or to pay over to them any part of the proceeds thereof; that plaintiffs are entitled to receive their proportion of the net values of all ores which may have been or which shall hereafter be taken from the claim by said defendants, and, hut for the facts hereafter alleged, would be entitled to join with them in working the claim upon payment of their share of the expenses of mining, or to receive upon the dump their proportion of the ores taken out; that the defendant Miles Tinlen, in order to harass, and annoy plaintiff's, and to cast a cloud upon their title to the Minnie Healy claim by fraudulent and false adverse claims thereto, and to prevent them from having the use of their property and from developing the same by mining and extracting the ores therefrom, theretofore began an action in the district court of the Second district wherein he falsely and fraudulently asserted that he had an interest in said claim and had been in possession thereof, and that the plaintiffs forcibly and without his consent had ousted and. ejected him therefrom and had taken possession thereof, and that they would mine and extract the ores therefrom and convert them to their own use in violation of his rights; that in said action, by reason of said false and fraudulent pretensions and claims on his part, he procured said court to issue an injunction against the plaintiffs restraining them from doing any mining upon the property or removing ores therefrom; that said action is pending and undetermined, and cannot be tried fqr a long time to come; that, after the procuring of said injunction as alleged, the said Finlen, for the purpose of further annoying plaintiffs and obstructing them in their enjoyment of their rights, began an action in said district court against John Devlin, Marian Devlin and Mary E. Keilly, who for a long time prior thereto had been the owners of an undivided three-fourths interest of the Minnie Healy claim, as the predecessors of the plaintiffs, and falsely and fraudulently claimed to be entitled to a conveyance from them of their interests ; that said action was thereafter transferred to the United States circuit court of the Ninth circuit, district of Montana, and that plaintiffs, having intervened therein, have set up their rights and asked to have their title quieted; that said proceeding is pending, and cannot be heard and determined for a long time to come; that the effect of the injunction so procured as aforesaid is not only to prevent the plaintiffs from working the Minnie Healy claim, but also to prevent them from receiving from their co-tenants in possession, the said Nleinsclnuidt, and Miller, their proportion of the ores extracted from the property by them, or of llie net value of the same; that said defendants, by reason of the pendency of the said injunction, will not and cannot account to the plaintiffs for the value of any of the ores extracted, and cannot and will not deliver to them upon the dump their proportion thereof; that the cost and expense of maintaining the claim in idleness during the determination of the various suits aforesaid, as well as the present action, will be about $500 per month; that the claim contains bodies of valuable ore, which can be readily mined and extracted, and that it is to the best interest of all of the owners or parties interested therein to have the same extracted and to have mining operations conducted therein, to the end that it may be properly preserved and developed and its value thereby increased ; and that unless the ores are so mined and disposed of, and the proceeds preserved, the owners of the said claim, and particularly the plaintiffs, may suffer great loss, by reason of the probable decline in the price of copper pending the litigation over the title, — the injunction bond required of said Finlen not being sufficient to protect the plaintiffs from probable loss.
    The petition further alleges that there is a certain vein, bearing copper, gold and silver, which has its top or apex within the boundaries of the said Minnie Healy lode claim, and which on its dip or incline departs from the perpendicular in its downward course to the north; that the development so far upon said vein indicates that it passes beyond the side lines of the Minnie Healy claim and enters into the Piccolo and Gambetta lode claims beneath the surface; that these latter claims are immediately north of the Minnie Healy claim and are owned by the Boston & Montana Consolidated Copper and Silver Mining Company, which for a long time has been mining and extracting ores therefrom by means of underground workings; that plaintiffs are informed that the said Boston & Montana Consolidated Copper and Silver Mining Company is now engaged in carrying away and converting to its own use large quantities of ores from the said vein belonging to the Minnie Healy claim; that to prove the identity and continuity of the said vein from its apex in the Minnie Healy claim into the workings of the Piccolo and Gambetta claims will require a large amount of development work and entail a large outlay of money; that heretofore defendant Miles Finlen commenced an action in the district court of the Second district for an injunction to restrain the said Boston & Montana Company from mining and carrying away any of the ores from said vein; that said defendant, before obtaining an injunction, however, desisted from prosecuting said suit and permitted said Boston & Montana Company to continue its mining operations on the vein, without further developing the same from the apex dowñward to prove that it belongs to the Minnie Healy claim, thus acquiescing in said trespass; that the injunction obtained by Finlen against the plaintiffs as alleged was designed to prevent them from prosecuting the work necessary to make such proofs, notwithstanding said Finlen believes that said vein has its apex in the Minnie Healy claim and the said corporation is trespassing thereon; that plaintiffs believe that the vein belongs to the Minnie Healy claim; that the ores which can now be mined therefrom have a value in excess of $100,000, and that if this fact can be shown it will establish a value for the claim of several hundred thousand dollars; that it is to the interest of all the parties to have this work done at once, to the end that an injunction be obtained to restrain further trespasses; that it is also to the interest of all parties that the ores in the claim be extracted; that their proceeds, so far as necessary, be devoted to this development work, to the keeping of the property in repair, to the prosecution of any suits necessary to restrain the said trespass or any other trespass, and to have the balance preserved for the parties entitled under the decree of partition when finally made.
    Hpon the filing of this petition an order to show cause was issued and set for hearing on February 5th. At that time the plaintiffs presented their evidence. The defendants Finlen and Kelley did not appear, both being absent from the state and neither having been served with summons or notice of the hearing. The other defendants entered their appearances by counsel without service of process, but made no resistance to the petition. The matter was then submitted, but no decision having previously been rendered, the defendants Kelley and Finlen entered their appearances by counsel on February 17th and asked to be heard. Leave was granted. Thereupon they answered by counsel, denying the material averments in the complaint and petition, including all allegations as to wrongdoing on their part, and introduced evidence controverting them. Thereupon the court, after consideration, made an order appointing one E. H. Wilson as receiver witli power: to take possession of all the interests in the Minnie Healy claim to which the plaintiffs assert ownership, including the Kelley interest, and to enter into all the workings and ore bodies therein with the administrator of Allport and the heirs other than Kelley; to operate the mine in all portions not in possession of the administrator and the Allport heirs; to have reduced all ores extracted; to expend the proceeds in keeping the mine in repair; to do development work sufficient to demonstrate the ownership) of the veins being worked in the Gambetta and Piccolo claims, which plaintiffs believe have their apexes in the Minnie Healy claim; to demand and receive from the heirs of Allport and the administrator accountings for any mining operations conducted by them in any of the workings of the claim; and to prosecute any actions necessary in his judgment to protect the property from depredations by any person pending the litigation.
    The receiver is expressly directed to extract only so much ore as may be necessary to pay expenses and to accomplish the duties assigned him in the order. The defendants Kelley and Einlen have appealed.

      Mr. William Scallon, Mr. J. K. MacDonald and Mr. T. J. Walsh, for Appellants.

      Messrs. McHatton & Cotter, for Respondents.
   MR. CHIEF JUSTICE BRANTLY,

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

The only question presented to this Court is whether the evidence submitted to the court below was sufficient to authorize the order of appointment. A determination of this question requires an examination of the evidence tending to support the averments in the ¡petition. We have set. forth in the statement particularly the contents of the complaint and petition, for the reason that they were treated at the hearing as affidavits, and so far as they tend to establish any material fact they are considered as a part of the evidence.

Though there is evidence tending’ to show that a controversy exists between Finlen and the Allport heirs, other than Kelley, - touching the present ownership of the Allport interest, and growing out of the contest over the probate of the alleged will of Allport, it is admitted in the pleadings that Allport died intestate, and that the defendants, other than Finlen, are his heirs at law. We shall therefore assume, for the purpose of this investigation, that each of them, except Kelley, is now the owner of an undivided one-twentieth of the property in controversy. Kelley has no interest in the properly, nor in this controversy, except so far as she may be bound under her agreements with Finlen, as appear hereafter, to prosecute to a successful issue the probate of the alleged will, and thus make good to him her title to the entire Allport interest. At the time this hearing was had the will had been declared a forgery, as alleged in the petition. .It is admitted, however, that a motion for a new trial was pending, and that the controversy as to the ownership of this interest is still undetermined. It appears, that at the death of Allport in 1895, John Devlin, Marian Devlin and Mary E. Keilly were tenants in common with him in the property, owning the other three-fourths. It further appears that Finlen now holds the legal title to a one-twentieth interest by deed from Kelley, dated May 22, 1899, executed in pursuance of an agreement contained in a prior lease dated October 1C, 1896, by which she bound herself upon certain conditions to convey to Finlen the entire Allport interest. The deed just mentioned also conveys to Finlen any interest Kelley may acquire under any decree which may be rendered in the proceedings looking to the probate of the alleged Allport will. It is shown that Finlen on October 16, 1896, became a lessee of the interests of John and Marian Devlin and Mary E. Keilly, with the right of purchase upon compliance with the terms of the leases on or before February 3, 1900. The conditions of this lease and the one from Kelley were the same. There is no ■controversy but that the conditions contained in these leases have been fully complied with in all respects. It further appears that the Devlins and Mary E. Reilly subsequent to the making of the leases to Einlen conveyed their interests to the plaintiffs, — five-eighths directly to' Heinze on June 3, 1899, .and one-eighth to the Johnstown Mining Company through mesne conveyances dated, respectively, November 12, 1898, •and May 18, 1899. The plaintiffs claim that Heinze made a verbal agreement with Einlen on November 21, 1898, which was subsequently executed, whereby Einlen bound himself to transfer and set over to Heinze his rights under the leases from Kelley, the Devlins and Reilly, and that the plaintiffs are therefore properly vested with the title to the Devlin and Reilly interests, and that Heinze is entitled to the Kelley interest. This is disputed by Einlen, who has a suit pending in the United States circuit court against the Devlins and Reilly, and .■also plaintiff Heinze, who has intervened therein, to compel a ■conveyance to him according to the terms of the lease. This ■defendant has also, a suit in the district court of Silver Bow county against the plaintiffs, in which he seeks to eject them from the Minnie Healy claim. In this suit an injunction was issued restraining the plaintiffs from working the property ponding a trial. These are the suits referred to in the petition as being founded upon fraudulent claims; they having been brought, it is alleged, to harass and annoy plaintiffs and to prevent them from the enjoyment of their property, and for no other purpose.

The situation of the title is, therefore, such that, if Enlen should succeed in his suits now' pending, the plaintiffs -would have no interest in the Minnie Healy claim. The partition decreed in this case, if any at all, would then be between him and the Allport heirs, other than Kelley, subject to the administration. If the Allport will should finally be admitted to probate, the whole property would belong to Einlen. If the plaintiffs should succeed in these suits, they would he tenants in common with the Allport heirs, except Kelley, or, if the will .should be established, the owners of the entire property. With the merits of these controversies we have nothing to do on this appeal. At present we are concerned only with the fact of their existence, and the purposes and motives actuating Finlen in connection with them. As to the charges of bad faith and wrongdoing on the part of Finlen in the bringing of these suits, and his sinister purposes therein towards the rights of the plaintiffs, there is nothing in the evidence to support them, beyond the fact that these suits have been brought and are now pending. There is nothing to show that he brought them in .bad faith, or that he has any other purpose therein than to have his rights declared. If he thought at the time they wex*e brought that he was entitled to conveyances from the Devlins and Keilly, and that the plaintiffs were invading his rights, it was entirely proper for him to seek appropriate redress from all of them. Nothing else appearing, a presumption of good faith and proper motive must be indulged in his favor. Moreovei*, the fact that tire district court issued an injunction in connection with the ejectment suit aixd after a hearing thereon, justifies the inference that that court was of the opinion that the plaintiffs are probably wrong in their claims. They had an opportunity on .that hearing to show that the claims of Finlen are fraudulent and without foundation, as well as that the motives prompting him are malicious, — yet it seems they did not avail themselves of this opportunity. That Finlen brought suit to restrain alleged trespasses upon the Minnie Healy claim by a third party through the workings in the Grambetta and Piccolo claims, and did not prosecute it vigorously, furnishes in itself no ground for the charge that he is acquiescing in wrongs to plaintiffs by such third parties. He was and is under no obligations to plaintiffs to press this suit. He may have desisted because of an apprehension that he could not succeed; or because he became satisfied that he was wrong; or because he had some satisfactory arrangement with the corporation about compensation. In any event, it comes with ill grace from the plaintiffs to insist that any obligation rests upon him in this connection, while they deny that ho had any interest in the property, there being nothing in their way, until they procured the appointment of the receiver in this case, to prevent them from bringing and prosecuting any suit necessary to protect their own rights. If they had the requisite information, the obligation rested upon them to protect the rights which they now assert, and not upon Piulen. They were in possession at the time they began this suit; with the knowledge of the facts touching trespasses, ■which their charges against Pinlen imply that they had at the time, they could easily have invoked successfully the preventive power of the court, even without additional exploration.

Passing now to an examination of the charges of wrongdoing on the part of the administrator and Mary A. Miller, we notice first that they entered their appearances in this case without service of process, and, though accused of ousting the plaintiffs from possession, and refusing to render any account of their alleged operations, they made no attempt to justify or deny the charges. They thus impliedly, at least, confessed the truth of them. Pinlen and Kelley undertook to show that no real ground for the allegations in this connection existed, and that these two defendants, in collusion with plaintiffs, had attempted to bring about a situation upon which the court would be justified in taking charge of the property.

The facts are: On January 8, 1900, the administrator applied to the district court having jurisdiction over the estate for permission to engage in mining the Minnie Healy claim. This application was denied. After that time, and until this suit was instituted, plaintiff Ileinze and he had various consultations about engaging in operations there, though Ileinze was then enjoined from doing so. On January 22d this suit was brought, the plaintiffs then being in possession. On January 28d Ileinze formally delivered possession to the administrator, including a large amount of supplies belonging to the plaintiffs, with the machinery used by them in operating the property prior to the Pinlen injunction. Just pi’evious to that timo Heinze liad told the administrator that he (the administrator) could operate the mine if he chose to do so, provided the ore taken out should be shipped to Heinze. P. E. Mahoney, the. night watchman in charg’e of the machinery at the mine, remained there just as before, as did also Sullivan, the day watchman. The former was sworn as a witness. He testified that he had never been hired by Kleinsehmidt, but always, even up to the time of the hearing, took his orders and expected his pay from Heinze. “Heinze ivas his boss.” He thought Sullivan was employed in the same way as himself, their duties being the same. His business was to keep up fires and keep things from freezing-. Very little, if any, work was done after January 22d or 23d; and he saw no ore taken from the mine, except one wagonload which he caught a man stealing. No ore was hoisted from the mine after the date last mentioned. Some men were passing in and out, and some work was done; there being not more than a dozen men employed. Kleinsehmidt and his foremen wore there now and then; but Mary A. Miller was never there, and no one was there to represent her. Other evidence showed that she had not heen in the state for several months. One Halford made affidavit on February 5th that Kleinsehmidt and Mary A. Miller had been in exclusive possession of the mine and operating it since about January 25th, and had “shipped certain ore.” Plaintiff Heinze made an affidavit that he had theretofore caused demand to be made upon Kleinschmidt and Miller for a statement of their oj)erations, but none had been made, A mining engineer in the employ of plaintiffs also made an affidavit that on February 3d he had made an application for an inspection of the mine, but had been refused admission by “the representatives of the working defendants, though they knew that the application was on behalf of plaintiffs.” These statements were all made under oath, in face of the fact that Mary A. Miller was not in the state at the time the alleged operations were carried on and the demands made, and without any showing that she had any one in the state to represent her in any enterprise whatever. It may not pass unnoticed, either, that the application for the inspection was made on the 5th day after the petition was filed in this case, and that no time is fixed at which the statement of the operations was demanded. The same may be said as to the amount of the ore Halford saw shipped, and the date of the. shipment. His affidavit is silent on these points. An officer into whose hands some papers had been put for service upon Kleinschmidt and his alleged foreman, one Kane, went to the Healy mine on February 1st; he then found the day watchman engaged in the same kind of duties as those performed by the night watchman, but no mining operations were going on; nor did he afterwards find any one engaged at work there, though often there until February 16th. We have patiently examined the whole record, and the affidavit of Halford is the sole bit of evidence, apart from the general averments made in the petition, which was verified by Heinze, tending to show an ouster by Kleinschmidt. There is nothing whatever to show any wrong on the part of Miller. The evidence is well-nigh conclusive that no mining was going on at any time after February 1st, and that neither Kleinschmidt nor any one representing him was at the mine after that time. The statement by Heinze that an account of the operations was demanded, and that none was rendered, is. of no significance, in view of the fact that it does not appear when such demand was made, nor whether any opportunity was allowed for compliance by the administrator, so that the presumption might be indulged that the administrator was unwilling to comply. Heinze was sworn and examined fully at the hearing — his silence in connection with this matter is significant, especially so in view1, of the fact that the mining operations, if any, conducted by the administrator extended over a period of only seven days. The petition herein was filed just seven days after the administrator was put in possession by plaintiffs. It does not appear that he shipped any ore, or if he did, that he did not ship it to Heinze himself, in pursuance of the understanding had at the time possession was delivered to him. The refusal of the application of the engineer on February 3d is also- insignificant and does not tend to show the truth of any statement contained in the petition, since it conclusively appears aliunde that Miller was not in the state, had never-been in possession in person or by agent, and had never taken, a pound of ore from the property; and since it also appears that. Kleinschmidt was then out of the state, and that no one was. at the mine, other than a watchman — ostensibly in the employ of Heinze or nobody — and whose only task was to keep watch of things and prevent the machinery from freezing up. True,, it appears that the names of Sullivan and Mahoney, the watchmen, were not on plaintiff Ileinze’s pay roll after January 22d. It is a remarkable fact, however, that they remained there- after Kleinschmidt went into possession, but were never hired by him, and looked to Heinze for their orders and -their pay. The only conclusion possible from these facts is that the plaintiffs and the administrator joined hands to create a color-able ground for the appointment of a receiver through whom, they could have the property mined, notwithstanding the injunction procured by Finlen to preserve it intact until he could, establish his rights, and the proceeds expended in development work, which might or might not add to the value of it, or might or might not protect it from trespasses. And this in face of the fact that, the plaintiffs, notwithstanding the injunction,, were at liberty to bring as many suits as they chose to restrain these alleged trespasses. The plaintiffs ivell knew that though these suits -were pending against them, they furnished no ground for asking a court of equity to take the property out of their-hands and relieve them from the burden of caring for it; they well knew that in order to bring this about it was necessary to-be in a position in which they could complain of 'wrong on tliepart of some one who claimed to be a co-tenant; and hence this-suit upon a merely colorable ouster on the part of the administrator, -who seems to have been not averse to aiding them in their design. Ho far as this feature of the case is concerned,, there were no facts before the court to warrant the order. The-court was misled to make it by the specious but unfounded and! unsupported complaints of the plaintiffs by which they sought to bring tliemeselves within the principles which move a court of equity in such cases to grant the extraordinary relief demanded.

The administrator having gone into possession- (if, indeed, he was in possession) by consent of the plaintiffs, with the understanding that he was at liberty to engage in mining, nothing short of a- showing of a clear ouster and refusal to account, coupled with a want of financial ability to answer in a suit for this purpose, would probably justify a court in taking the property from his hands through the agency of a receiver. He was not imperiling the interests of the estate in any way. Whatever he did in his mining operations he did at his own risk (In re Rose's Estate, 80 Cal. 166, 22 Pac. 86) ; and that he was claiming to act as administrator in no wise affects the situation.

The allegations upon the subject of a probable fall in the price of copper pending the litigation do not merit serious consideration; they are hardly susceptible of proof. And it cannot be urged seriously that a court of equity should be moved to the exercise of its extraordinary powers by conclusions founded upon speculations upon the probable condition of supply and demand as to a particular commodity in the markets of the -world.

Touching the outlay necessary to preserve the property while idle, a more serious question arises. The proof in this connection, however, is not satisfactory. On the one hand it appears that there is a hoisting plant with necessary machinery on the claim, and that it is necessary to keep watchmen to look after it and the claim, at a cost of about $500 per month. It also appears — incidentally, however — that the machinery probably belongs to the Montana Ore Purchasing Company, a corporation Avitli which plaintiffs are associated. On January 23d the hoisting plant was delivered to the administrator under an arrangement with the plaintiff Heinze, the particulars of which are not shown. Whether its use there as a means of ingress and egress is necessary to the preservation of the openings in the property, or whether these openings are in such a condition that they need care and attention, is not shown. If from their nature and condition they do not require attention and outlay, then the expenses incident to the employment of watchmen would under no circumstances be a proper charge upon the property. On the other hand, Finlen has not at any time attempted to interfere with the possession of the plaintiffs or the administrator, except to enforce his rights by suit; and there is nothing in the evidence to furnish any reason why either lleinze or the administrator, who seem to have joined forces against Finlen, should not retain possession and care for the property, with a right to recover of Finlen the amount expended for this purpose if they succeed in establishing their rights against him. Surely the plaintiffs have ample protection against any loss to them under the injunction bond given by Finlen in the ejectment suit. If this bond is not sufficient in amount, as plaintiffs charge, the district court, upon proper application, would readily exact a sufficient one.

That a court of equity has power in cases like the present to appoint a receiver is well settled. But in any ease where an appointment is sought there must be shown a legal or equitable right, reasonably clear and free from doubt, attended with danger of loss. (Smith on Receiverships, Secs, lo, 311, and cases cited; High on Receivers, Secs. 606, 601.) The duties of a court, however, in the exercise of this power are exceedingly delicate and should be exercised with great caution, lest in the effort to protect the subject of the litigation the property would bo illegally taken from one rightfully in possession and his rights and interests be sacrificed without any redress whatever. (Id.) Taking charge of property in the exercise of this power is somewhat analogous to the levying of an execution in limine, and subjecting the property to expenses and charges pending litigation, and to this extent consuming it entirely; hence Ihe power should never be used unless it be reasonably clear that no injury will result to the parties whose rights are for the time being invaded. As between tenants in common, as stated in the text of Mr. Smith, at Section 317, supra, the grounds of appointment usually are: “(a) Where one tenant is in possession and excludes his co-tenant from participation in the possession or income; (b) where the tenant in possession is insolvent and refuses to account to* his co-tenant; (c) where one tenant refuses to join his co-tenant in the execution of necessary leases for the property owned in common, or interferes in the collection of rents with the tenants in possession; (d) where the court can see from the showing made that the appointment of a receiver is required in order to properly protect the interests of parties.” The case at bar does not come within any of these rules; nor has any case heen cited by counsel wherein a different rule has been applied. It seems that it would be entirely inequitable to allow plaintiffs to surrender the property here involved into the possession of the court merely because its care involves considerable expense.

Tinder the presumptions usually indulged in favor of the legal title, the plaintiffs, Finlen, and the Allport heirs, except Kelley, are, for the purposes of this appeal, tenants in common. Under Section 592 of the Code of Civil Procedure, fixing the status of such estates, and as construed with reference to mining claims in Anaconda Copper Mining Co. v. Butte & Boston Mining Co., 17 Mont. 519, 43 Pac 924; Red Mountain Consolidated Mining Co. v. Esler, 18 Mont. 174, 44 Pac. 523; Connole v. Boston & Montana C. C. and S. Mining Co., 20 Mont. 523, 52 Pac. 263; Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642; and Butte & Boston Consol. Mining Co. v. Montana Ore Purchasing Co., 25 Mont. 87, 63 Pah 825, — each of these parties has the right to have the property stand as it is until it is finally partitioned. It would therefore require a much clearer showing than is here made to justify a court in invading this right, and mining the property through a receiver, for any purpose.

Wo feel impelled to call attention to the condition of the record filed on this appeal. It contains many pages of matter entirely impertinent and useless, which has served only to add materially to tlie labor involved in tbis investigation. On tbe bearing in tbe trial court many court files were introduced in part, tbe particular part being designated. Instead of incorporating into tbe record on appeal only tbe material parts of these files, they were copied in full. Hereafter tbe party offending in tbis particular will be subject to tbe payment of costs.

Tbe order appealed from is reversed and tbe cause is remanded.

Reversed and remanded.

Mr. Justice Milrurn, not having beard tbe argument, takes no part in tbis decision.


author: MR. JUSTICE MILBURN

text:
    NOLAN, Respondent, v. MONTANA CENTRAL RAILWAY CO., Appellant.
    (No. 1,262.)
    (Submitted February 8, 1901.
    Decided February 25, 1901.)

      Railroads — Master and Servant — Injury to Servant — Appliances — Negligence — Evidence — Verdict — Direction— Appeal — Reversal—Directing Judgment on Remand.

    1. An employe was struck and injured by a cable attached at one end to a locomotive, and at the other to a plow then being used to unload cars of dirt at a curve. The cable slipped over a wooden stake in a socket on the edge of a car on the outside of the curve, behind which it was placed by plaintiff’s fellow servants to prevent the plow being pulled off the car on the'inside of the curve. There was a groove in the socket holding the stake, in which the cable was usually placed when unloading dirt at a curve. There was no evidence that a block and tackle would have been safer thn the groove, which means was reasonably safe. Held¿ that the evidence did not support a verdict that the employe was injured by the employer’s neglect to provide and use a block and tackle to guide such cable.
    2. Where the trial court erred in denying a motion to direct a verdict for defendant, the court on appeal could not direct judgment for the defendant, since they could not know what exceptions, if any, were taken by the respondent to the trial ‘court’s rulings on the evidence offered.
    3. The only exceptions properly included in a transcript on appeal are those of appellant.

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

    Action by Timothy Nolan against the Montana Central Railway Company. From a judgment in favor of plaintiff, .and an order denying a new trial, defendant appeals.
    Reversed.

      Mr. A. J. Shores and Mr. I. Parker Veazey, for Appellant.

      Messrs. Stanton & Lechey, Mr. Geo. Haldorn and Messrs. Clayherg & Gunn, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This is an appeal from the judgment and an order denying a motion for a new trial rendered and made by the district court of the Second judicial district, by which judgment the plaintiff recovers from the' defendant for injuries alleged to have resulted from his being struck upon the head by a wire cable attached to a locomotive at one end and to a dirt plow at the other; said plow being used for scraping dirt from a train of Hat cars which stood upon a curve on the railway track of the defendant. The plaintiff alleges in his complaint that the injury was caused by the defendant carelessly and negligently failing to provide and use a block and tackle at said curve to draw said plow or scraper along a certain car which was being unloaded, but instead thereof using a wire cable attached to the locomotive; the cable being held on the car by a wooden peg or pin, which being insufficient allowed the cable to slip over the top thereof, the cable striking the plaintiff, he then and there being near the car on the inner side of the curve assisting in the work of repairing the roadbed of the railway. The only negligence charged is as above stated.

The evidence in the case shows that plaintiff was struck by the cable; that at the time he was struck the cable, being attached to the said plow and'locomotive, was thrown over a certain wooden stake, 4x4x18 inches, which was set in an iron socket or pocket on the outside of the curve on the edge of a certain flat car in front of the car on which the plow rested, it being necessary to hold the cable on that side of the train in order to prevent the plow from being pulled off from the side of the train on the inside of the curve; that the cable was so placed over the wooden stake by fellow servants of the plaintiff; that the cars of the defendant used on this occasion had all attached to them, on each side, iron pockets, in which wooden stakes of the said dimensions were placed; that each pocket was fastened to the car by an iron bolt or clasp, and that just below the bolt on each pocket was a groove, into which it was a practice to place the cable when unloading dirt on a curve; that the stake used as aforesaid was one of those above mentioned; that on the occasion referred to the cable slipped over the said stake and, going rapidly across the train to the inside of the curve, struck the plaintiff; that the cable could have easily been placed in two or more of the grooves, thereby rendering the operation of unloading dirt much safer; and that the wooden stakes were placed on each side of each car, about five feet apart, for the purpose of preventing the said plow or scraper from going over the side of the train.

The defendant assigns as error the court’s denial of its motion for a nonsuit, and the court’s refusal to instruct the jury to find for the defendant at the close of the evidence; and states as one of the grounds of motion for a new trial the insufficiency of the evidence to justify the verdict.

The employee who seeks to recover for injuries claimed to have been received through negligence for which his employer is liable must establish that negligence by proof.

It appears that the accident in this case was the result of the insufficiency of the means used by the plaintiff’s fellow servan is. We are of the opinion that the charge of negligence on the part of the defendant, in not furnishing a block and tackle, is not supported by the evidence. It does not appear that the grooves were not sufficient and reasonably safe appliances. There was not any evidence tending to show that a'block and tackle was. a safer or more suitable appliance for the purpose of holding the cable than the grooves, which, upon the undisputed evidence, were reasonably safe means.

Whether, as to his servant, the master must, at his peril, provide the safer appliance, when it is known to him, is a question which is not here presented, and as to it we do not express any opinion.

A motion for a nonsuit was made after the plaintiff had rested, and said motion was denied. The defendant introduced proof and then moved the court- to instruct the jury to return a verdict for the defendant, which motion .was denied. The defendant assigns error in denying each motion and prays this court to reverse the court below and direct judgment for the defendant. The court below erred in denying the motions, respectively; but we cannot order judgment for the defendant, as we have no means of knowing what, if any, exceptions were taken by respondent in the court below to the rulings of the court on the evidence offered. The only exceptions properly included in a transcript on appeal are those of appellant. We have no means of anticipating what evidence, if any, the re-< spondent may offer on a new trial. (O’Rourke v. Schultz, 23 Mont. 285, 58 Pac. 712; Westheimer v. Goodkind, 21 Mont. 90, 60 Pac. 817.)

The verdict is not supported by the evidence, in that there is no evidence to show that the defendant company was negligent, as claimed by respondent, in not furnishing a block and tackle.

The judgment and order denying a new trial are reversed and the cause is remanded.

Reversed and remanded.


author: MR. JUSTICE PIGOTT

text:
    HARRINGTON et al., Appellants, v. SMITH et al., Respondents.
    (No. 1,274.)
    (Submitted February 28, 1901.
    Decided March 4, 1901.)

      Appeal — Buies of the Supreme Court — Briefs.
    Under Supreme Court Rule V, Subsection 3 (16 Montana 595), which was operative when appellants’ brief was filed, an order appealed from will be affirmed when appellants’ brief does not refer to any page number of the transcript, nor contain a specification of errors.

      Appeal from District Court, Deer Lodge County; Theo. Brantly, Judge.

    Action by Philip Harrington and others against Prank D. Smith and others. Prom an order granting a new trial after a verdict in their favor, plaintiffs appeal.
    Affirmed.

      Messrs. Napton & Napton, for Appellants.

      Messrs. Stapleton & Stapleton, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The plaintiffs recovered a judgment against the defendants in the district court of Deer Lodge County. Prom an order granting a new trial the plaintiffs have appealed.

The order appealed from must be affirmed upon the ground that the brief of the appellants is not in compliance with the rules of this Court in force when it was filed. Subsection 3 of Rule V, which was operative when the brief in question was filed, provides that the brief shall contain, “in the order here stated: (1) A concise abstract or statement of the case, }Dresenting succinctly the questions involved and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evi(lence, orders and judgments may be easily found. (2) A specification of errors relied upon, which, shall set out separately and particularly each error asserted and intended to be urged. * * *” (16 Mont. 595.) The brief for the appellants does not refer to any page number of the transcript, nor is there a specification of errors. In conformity with the now settled and uniform practice of this Court the only disposition that can be made of the appeal is h> affirm the order. We should affirm without a written opinion were it not that we desire again to call attention to the necessity of a substantial compliance with the rules of the Court prescribing the contents of briefs filed on behalf of appellants. A specification of the error or errors relied upon is an indispensable prerequisite to the considerations of appealed causes on their merits. (Rehberg v. Greiser, 24 Mont. 487, 62 Pac. 820, 63 Pac. 41.)

The order granting a new trial is affirmed.

Affirmed.

Mr. Chief Justice Brantly, having tried the cause in the court below, does not participate in the foregoing decision.


text:
    STATE ex rel. STATE SAVINGS BANK, Relator, v. BARRET, STATE TREASURER, Respondent.
    (No. 1,644.)
    (Submitted February 15, 1901.
    Decided March 4, 1901.)

      Mandamus — Supreme Court — Original Jurisdiction — State Warrants — Assignment — Negotiability —1 Acceptance at Par — Interest —• Constitutional Latv — Contracts—Impairment of Obligation.

      1. Where the state treasurer refused to pay interest on certain warrants drawn on the school of mines building fund, directed by statute to be paid therefrom, the meré fact that it was a state officer refusing to perform a ministerial duty was not á sufficient reason for invoking the original jurisdiction of the Supreme Court by an application for mandamus.

      2. In the future, applications to the Supreme Court for writs of mandate must “set forth * * * the reasons which render it necessary that the writ should issue originally from this Court” (Rule II, Subdivision 2).
    3. Where contractors were paid for state work by warrants drawn on a certain fund in the state treasury, and were entitled to iuterest thereon after presentatidh, the assignees of such contractors succeeded to all their rights, notwithstanding the warrants were non-negotiable, and were entitled to interest on the warrants.
    4. Where contractors working for the state agreed to accept warrants on a certain fund at par, and in full payment for the work, such acceptance did not preclude their statutory right to interest on the warrants, but merely bound them to accept such warrants at their face value.
    5. Under Constitution, Art. Ill, Sec. 11, the legislature can no more impair the obligation of a contract entered into by the state than it can the obligation of a confitact made between individuals.
    6. A statute which changes thd terms of an agreement by imposing new conditions, or dispensing with those expressed or implied, is repugnant to the Constitution as being a law impairing the obligation of a contract; and the degree of impairment is immaterial.
    7. Where a contract was made with reference to Political Code, Sec. 1601, which provided that, if’certain state warrants to be issued in payment of work on the state school of mines building could not be paid on presentation for lack of money in the state school of mines building fund, out of which mey were to be paid, they should bear interest at the rate of 7 per cent, per annum from the date of presentation, Laws of 1897, p. 124, repealing Political Code, Sec. 1601, was void as to such contract, being in conflict with Constitution of the United States, Art. I, Sec. 10, forbidding the impairment of the obligation' of contracts by state legislation, and Constitution of Montana, Art. Ill, Sec. 2, to the same effect; hence the holder was entitled to interest on such warrants.

      Mandamus by tbe State, on relation of tbe State Savings Bank, to compel tbe state treasurer to pay pertain state warrants.
    Writ granted.

      Messrs. McBride & McBride, for Relator.

      Mr. James Donovan, Attorney General, for Respondent.
   MR. JUSTICE PIGOTT

delivered tbe opinion of tbe Court.

Tliis is a proceeding in mandamus instituted by tbe State Savings Bank for tbe purpose of compelling tbe state treasurer to pay certain warrants addressed to bim and drawn on tlie Scbool of Minos Building Fund. An alternative -writ was issued. To the petition tbe treasurer demurs for want of substance.

Eliminating its formal averments and condensing its statements tbe petition exhibits tbe following facts: By Section 17 of the so-called “Enabling Act,” approved February 22, 1889, Congress granted to the state of Montana for the establishment and maintenance of a school of mines, 100,000 acres of land (25 Statutes at Large, 676; 1 Supp. Rev. St. U. S. pp. 645, 648). Thereafter, by Section 1 of “An Act to provide for the location, incorporation, establishment, maintenance, management and support of the Montana' School of Mines,” approved February 17, 1893, the Montana State School of Mines was established as a corporation. (Laws of 1893, p. 177; Section 1572 of the Political Code.) For the purpose of erecting, furnishing and equipping buildings for this corporation, the Legislative Assembly by an Act approved March 7, 1895, created the State School of Mines Commission, authorizing it to prepare plans and specifications for the erection of buildings, to advertise for bids for the construction thereof, and to let the contract to the lowest responsible bidder. (Sections 1591, 1594, 1595 of the Political Code.) The Act further created a state fund to be known as the “State School of Mines Building Fund,” to the credit of which should go* all moneys derived from the sale or rental of the lands granted by Congress to the state for the purpose of constructing buildings for the State School of Mines, and the moneys so received, as soon as realized from time to time, should forthwith be put into the state treasury and placed to the credit of the fund named. (Section 1600 of the Political Code.) That portion of the Act of March 7, 1895, which appears in the Political Code as Section 1601 is as follows: “Upon the completion of said building or buildings and at any time previous thereto as per the contract entered into by the board of school of mines commissioners they shall certify such amount or amounts to the state board of examiners, who shall forthwith cause to be drawn a warrant or warrants on the said state school of mines building fund to the order of the person or persons described by the board as entitled thereto, for the full amount of their respective claims, which said warrant or warrants shall be taken and accepted as in full payment of the said indebtedness, and no appropriation for the payment of the said warrant or warrants shall ever be made or payment thereof ever be made by or from any other source than the said State School of Mines Building Fund, and if, on the presentation of said warrant or warrants to the state treasurer, there shall not be in said fund sufficient moneys to pay the same, the same shall be registered, as of date of presentation, and shall henceforth until paid bear interest at the rate of seven per cent, per annum.” Another section of the Act of March 7th appears as Section 1597 of the Political Code: “All claims for the erection of said building or buildings shall be first approved by the school of mines commissioners and audited and allowed by the state board of examiners, and paid in the same mode and manner as claims against the state are paid: Provided, however, that such claims shall be paid out of the respective funds designated in this act, against which they may be chargeable.”

On July 28, 1896, the commissioners entered into a contract with Biddle & Boach for the erection and construction at Butte of a building for the State School of Mines. Among other provisions, the contract contained the following: “It is hereby mutually agreed between the parties hereto, that the sum to be paid to the contractors for the said work and material, and for the entire erection and completion of the said building, as above provided, shall be eighty-eight thousand four hundred fifty-six and eighty-five one hundredths ($88,156.85) dollars, subject to additions and deductions on account of alterations, as hereinbefore specified, and that said sum shall be paid in warrants on the State School of Mines Building Fund, which shall be drawn as provided in Section 1601 of the Political Code of Montana, upon certificates of the Board to the State Board of Examiners, and which warrants the contractors agree to accept at par in full payment and satisfaction of this contract.” Pursuant to the contract, and in accordance with its terms, Biddle & Boach completed the building, which was approved and accepted by the commissioners and is now used and occupied by the School of Mines. At the time the contract was made, and at the time Riddle & Roach entered upon its performance, all of the sections mentioned were in force. ' After Riddle & Roach had in large measure performed the contract, by an Act entitled “An Act authorizing the issuance* of bonds to provide for the payment of outstanding warrants and for the erection and completion of a building for the School of Mines at the city of Butte and providing for the payment of interest thereon, and repealing of Sections 1584, 1600 and 1601 of the Political Code of Montana,” approved March 8, 18.91, provision was made for a fund for payment of the cost of erection of the School of Mines building then in process of construction by Riddle & Roach. (Laws of 1891, p. 124.) This Act abolished the School of Mines Building Pund, and in its stead created the School of Mines Building, Interest, and Sinking Pund, and, in effect, required that all moneys which had theretofore been payable into the first-named fund should be paid into the latter-named fund, and that warrants drawn by the State School of Mines Commission should be paid out of the new fund. The Act purported to repeal Sections 1584, 1600 and 1601. In part payment of the erection of the building the commissioners, in conformity with the contract and under the authority of Section 1601, from time to time caused to be delivered to Riddle & Roach the warrants which are the basis of the present proceeding. When the warrants were delivered there was no money in the fund upon which they had been drawn, and the state treasurer thereupon registered them in accordance with the provisions of Section 1601. The warrants were all registered between May 23, 1891, and September 6, 1899. The warrants were then assigned to the plaintiff (relator), which has presented them for payment. Although at the time of presentation there was and still is sufficient money in the School of Mines Building, Interest, and Sinking Pund to: pay all the warrants, both principal and interest, the treasurer refused, and continues to refuse, to pay any interest thereon, and demands the surrender of the warrants upon the payment of the principal amounts only. The ultimate question presented for decision is, whether the warrants registered since the Act of March 8, 1897, became operative bear interest from the date when they were registered.

1. The mere fact that a state officer refuses to perform a ministerial duty specially imposed upon him furnishes no reason why this Court, in the exercise of its original jurisdiction, should grant a writ of mandate. District courts are ordinarily the primary forums, and in them should be commenced special proceedings unless sufficient reasons exist why resort to the Supreme Court is necessary in the first instance. The sole ground upon which the plaintiff has invoked the original jurisdiction of this Court is that the defendant is the state treasurer. The proceeding should have been commenced in the district court. In view, however, of the loose practice which in this respect has occasionally been indulged, we permitted the alternative writ to be issued and shall retain jurisdiction of the case; but in the future applications for writs of mandate must, in the language of Subdivision 2 of Bule II of this Court “set forth * * the reasons which render it necessary that the writ should issue originally from this Court;” and that the duty, the performance of which is sought to be enforced rests upon a state officer, board, or tribunal, will not be deemed a sufficient' reason for invoking the original jurisdiction of the Supreme Court.

2. The first objection urged by the attorney general in behalf of the state treasurer is that “there is no privity of interest existing between the owners of the warrants and the original contract between the state and the contractors, that even though the contractors were entitled to interest, the mere ownership of the warrants by the relator would not. subrogate them to the rights under the contract, but it would put the relator in the position of having purchased these warrants, which are nonnegotiable instruments, and a thing that bears no relation to the contract in any way. It is merely an order upon the state to pay out of a particular fund such, money as the law authoiizes to be paid out of the fund when the warrant is presented.”

In answer to this position it is sufficient to say that the plaintiff as assignee of the warrants succeeded to and is clothed with all the rights which Riddle & Roach, the assignors, would possess were they yet the owners. That the warrants lack the quality of negotiability essential to constitute commercial paper neither adds to nor detracts from the rights of the plaintiff. If Riddle & Roach would be entitled to collect interest on the registered warrants, the plaintiff is likewise so entitled.

3. Further-objection to allowance of interest is urged upon the ground that Riddle & Roach agreed to accept the warrants at par and in full payment and satisfaction of the contract. The purpose of thisopart of the contract is obvious and its effect manifest. The warrants were to be accepted at their face values, — neither at a premium nor at a discount. Each warrant at its par value was to be accepted as a payment on the contract price; this was the purpose. The delivery of each warrant operated as payment to an amount equal to its face value and thereby satisfied pro tanto the conditions of the contract; this was the effect. In illustration: A warrant for $1,000, whether actually worth more or less, was, upon delivery to Riddle & Roach, payment of $1,000 of the contract price, and to that extent was in satisfaction of the contract.

4. The final attack upon the petition consists in the suggestion that the payment of interest on the warrants after registration was not within the contemplation of the parties when the contract was made, and that therefore the repeal of Sections 1600 and 1601 of the Act of March 8, 1891, is applicable to warrants thereafter drawn and annuls the provision of Section 1601 which prescribed that warrants should bear interest at the rate of I per cent, per annum from registration until paid. The plaintiff, on the contrary, insists that the repeal of the provision allowing interest on registered warrants can have no effect upon its right to collect interest, for the reason that the repeal of the provision mentioned was an attempt to impair the obligation of the contract entered into between the state and Biddle & Boach, and hence, that the Act, in so far as it purports to abrogate the provision touching interest, is void.

That which binds a party to the fulfillment of his agreement is the obligation of a contract. It consists of the duty which the law imposes upon the parties to perform their agreements-(See 15 Am. & Eng. Enc. Law (2d Ed.) 1040, and cases cited.) The duty which the law casts upon a party to comply with the terms of the contract which he has promised to perform, is therefore the obligation of his contract. Impairment of this obligation by state legislation is prohibited. (Section 10, Article I of the Federal Constitution; Section 11 of Article III of the Constitution of Montana.) When a state enters into a contract such as the one it made with Biddle & Boach it is not acting in its governmental or sovereign capacity but comes down to the level of persons; its contract has the same meaning as that of similar contracts between subjects, and therefore the law imposes upon it the obligation to' perform its agreement according to the terms thereof. (Murray v. City of Charleston, 96 U. S. 443, 24 L. Ed. 76Ó.) The legislative assembly can no more impair the obligation of such a contract than it can the obligation of a contract made between individual jiersons. While a change in the form of obtaining redress may be made, provided a substantial remedy1' is given or remains, the obligation of a contract depends nevertheless upon its terms, and the means which the law in existence at the time it was entered into afforded for its enforcement. A statute which changes the terms of an agreement by imposing new conditions, or dispensing with those expressed or implied is a law which impairs the obligation of a contract, for such 'a. law “relieves the parties from the moral obligation of performing the original stipulations of the contract and prevents their legal enforcement.” (Railroad Co. v. Pennsylvania, sub nomine “Case of the State Tax on Foreign-Held Bonds,’ 15 Wall. 300, 21 L. Ed. 119.) The degree of impairment is immaterial; a law lessening or increasing tlie obligation, or dispensing in even the slightest degree with its force, is repugnant to the fundamental law of the land. If at the time the contract was made the parties agreed in express terms, or by implication, that the warrants should bear interest after registration, a statute 'subsequently passed purporting to repeal the law undfer which interest was allowed and in reference to which the contract was made would, if enforced, dispense with a condition, and thereby impair the obligation, of the contract.

When the contract was made Section 1601, supra, was in force. This section provided that the warrants should be taken and accepted in full payment of the indebtedness to be incurred for the construction of the building, that no appropriation for the payment of the warrants should ever be made, or payment ever be made by or from any other source than the State School of Hines Building Bund; and, the legislative assembly contemplating that there might not be in the State School of Mines Building Bund sufficient money to meet the warrants drawn from time to time in payment of the contract price, it was further provided that if on the presentation of such warrants to the state treasurer there should not be enough money in the fund to pay them, they would be registered as of the date of presentation and were thenceforth, until paid, to bear interest at the rate of 7 per cent, per annum. It was also contemplated by the parties themselves that payment of the warrants might be delayed or postponed beyond the time when they were presented, and that in such event Biddle & Boach should have the right to cause their registration and be entitled thenceforth to interest as provided in Section 1601. One of the conditions of the contract was that the state 'would pay the face of the warrants upon presentation to the treasurer whenever sufficient money should be in the State School of Mines Building Bund for that purpose, and the state further promised that if at any time there should not be enough money in the fund to pay the warrants they should be registered as of the date of presentation and thereafter bear interest. This agreement explicitly set forth in Section 1601 and referred to by the contract, was part and parcel of the consideration moving’ from the state through its duly authorized agents to Biddle & Boaeh. The right to collect interest on the registered warrants is, under the facts shown to exist iii the case at bar, as clear as is the right to receive the principal sums. The promise to pay the interest out of the money in the building fund after registration was a condition the performance of which the law imposed upon the state as a duty; and the performance of this duty devolved upon the defendant state treasurer. The impairment of this obligation is as much beyond the power of the legislature to accomplish as is the impairment of the obligation to pay out of the proper fund the amounts for which the warrants were drawn. The statute which authorized the contract to be made and which was in force at the time it was made, conferred upon Biddle & Roach the right to receive interest on the warrants from the date of registration, and the contract was entered into in contemplation of and with reference' to the statute. The state when it contracts as a person has no reserved right to withdraw or destroy by legislative action the effect of its promise which at the time it was made was founded upon a valuable consideration.

The demurrer is overruled. The defendant declines to plead further; upon the filing of the proper praecipe therefor, judgment will be entered awarding a peremptory writ of mandate as prayed. •

Writ granted.


author: MR. JUSTICE MILBURN Mr. Chief Justice Brantly : Mr. Justice Pigott :

text:
    HAUPT, Appellant, v. INDEPENDENT TELEGRAPH MESSENGER CO., et al., Respondents.
    (No. 1,257.)
    (Submitted February 6, 1901.
    Decided March 4, 1901.)

      Injunction — Irreparable Injury — Pleading — Complaint — Amendment — Discretion.
    1. Where, on the trial of an action to restrain defendants from destroying plaintiff’s telegraph wires 'and poles, there is no allegation in the complaint that defendants were threatening to do any injury to the plaintiff, or that he feared or believed there was an existing danger, or that defendants were Insolvent, defendants’ objection to any evidence, on the ground that the complaint fails to state any cause of action against them, should bo sustained.
    2. There are, at least, three rules to be observed in framing a bill in equity: (1) To state the plaintiff’s rights in the subject matter; (2) to set up the acts which the defendant is doing -or is threatening to do against such rights; and (3) to give a distinct statement, in ordinary and concise language, of such facts as show to the court that the injury will be irreparable.
    3. Where, in an action to restrain defendants from destroying plaintiff’s telegraph wires and poles, the proposed amended complaint does not show that plaintiff has po>as and wires of any material value, or sufficient for business, it is not an abuse of discretion for the court to refuse to permit such amended complaint to be filed, since such complaint does not show that plaintiff may fie irreparably injured, and hence does not state a cause of action for injunction.
    4. It is not'abuse of discretion to refuse leave to file an amended complaint which does not state a cause of action, or which would be open to a demurrer and to a motion €fi make more definite and certain.
    5. By “discretion” is meant sound discretion, guided by law.
    Me. Justice Pigott concurring in the judgment of affirmance upon the ground that the averments; of the complaint and of the amended complaint with respect to the property do not show that the threatened injury thereto will work irreparable damage, but dissenting in respect of the intimation that the amended complaint is open to a motion to make it more certain, as well as to a demurrer for want of substance.

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

    Action by Henry S. Haupt against the Independent Telegraph Messenger Company and others. Erom a judgment for defendants, plaintiff appeals.
    Affirmed.

      Mr. Oliver M. Hall, for Appellant.

      The original complaint states a cause of action for an injunction. It shows that defendants are threatening and are about to commit acts which, by the destruction of plaintiff’s property, would result in the destruction of his business and would render plaintiff’s franchise granted by the city of Butte worthless. Such acts on the part of defendants amount to a nuisance and should be restrained by a court of equity. (Arthur v. Oaks, 63 Fed. 310; Emmack v. Kane, 34 Fed. 46; Casey v. Cincinnati Typographical Union, 45 Fed. 143; Blindell v. Hogan, 54 Fed. 40; Elder et al. v. Whitesides et al., 72 Fed. 724; Sherry v. Perkins, 147 Mass. 212; Boston Water Power Co. v. Boston & W. R. R. Co., 16 Pick. 512; B. & L. R. R. Co. v. S. L. R. R. Co. et al., 2 Gray (Mass.) 1; Camden Horse Ry. Co. v. Citizens’ Coach Co., 31 N. J. Eq. 525.)
    It is immaterial that no overt act has been committed to injure plaintiff. The threats and the allegations that they will be executed is sufficient to give the court jurisdiction. (Elder et al. v. Whitesides, 72 Fed. p. 726; Arthur v. Oaks, 63 Fed. p. 316.) The fact that the acts complained of are criminal is immaterial. (72 Fed. p. 725; 63 Fed. 310.) It has been repeatedly decided that interference with the franchise and business of a ferry by persons having no right so to do will be enjoined as a nuisance. (Midland T. & Ferry Co. v. Wilson, and cases cited in notes to same, 28 N. J. Eq. 537.) The proposed amended complaint states a cause of action, and the court should have allowed the same to be filed. (See cases cited, supra.)

    The position taken by counsel and by the lower court was that the acts complained of amounted only to a trespass and that equity would not interfere to enjoin a trespass. Assuming that the acts complained of by plaintiff amount to a mere trespass, equity will enjoin a trespass:
    1. When the trespass is continuing, and where it is necessary to avoid a multiplicity of suits.
    ,2. When it would be impossible or difficult to estimate the damages.

      3. When the defendants are insolvent.
    All of the above named conditions exist in this case. (Lee v. Watson, 15 Mont. 228; Palmer v. Israel, 13 Mont. 209; Elder et al. v. Whitesides et al., 72 Fed. 724; Sankey v. St. Mary’s Academy, 8 Mont. 265; Blindell v. Hogan, 54 Fed. 40.)
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This is an action wherein the plaintiff appeals from the judgment against him dissolving a restraining order and for costs. The complaint was filed February 15, 1896, praying for injunction to enjoin defendants from injuring and destroying certain poles, wires and appliances said to belong to plaintiff, and from in any wise hindering plaintiff in the operation of a certain alleged messenger system, pursuant to the terms of a franchise granted by the city of Butte. It is alleged in the complaint that the city of Butte, by its ordinance numbered 364, granted to the predecessors of plaintiff certain franchises and privileges, to-wit, to string wires over and across the buildings on Main street, from Oopjjer to Mercury, and from Arizona to Montana, and to cross said streets in the city of Butte, without erecting any poles, or posts on said streets, for the purpose of constructing “a parcel delivery and telegraph call system” within said city, and to erect and maintain poles and wires, with necessary arms and braces, on such other streets and alleys as may be necessary to carry on said business; that the plaintiff and his predecessors have at all times faithfully complied with all conditions imposed by the ordinance, and with all ordinances and regulations relating thereto, adopted by the city council and its officers; that, pursuant to the terms of said franchise, plaintiff “has. constructed and erected within the city of Butte, wires and poles and appliances for a district messenger service, and is now about to operate the same in accordance with the terms of said franchise;” that, “since the completion of the work of constructing said appliances for the operation of said messenger service, the defendants, and all of them, have threatened to- this plaintiff that, if he attempts to operate said messenger system in accordance with the terms of said franchise, they will, by force, destroy said appliances and poles, and cut said wires, and by force render said messenger system inoperative;” that snch acts will delay and obstruct plaintiff in the operation of said system, and render said system and the said franchise valueless to plaintiff; and that damages cannot be compensated in an action at law. Defendants answered, and plaintiff replied. Upon the trial, November 24, 1897, the defendants objected to the introduction of any proof by the plaintiff, upon the ground that the complaint did not state a cause of action against them, or any of them; which objection was sustained, the plaintiff excepting. Thereafter, and before the jury was excused, the plaintiff, in writing, moved the court for leave to amend his complaint. The court discharged the jury and set the motion to be heard on November 27, 1897. The hearing was continued by consent. On December 1, 1897, a proposed amended complaint, embodying the matter contained in said motion, was served on defendants, and was duly presented to the court, together with said motion. The amended complaint sets out the said ordinance in full and repeats, substantially, the allegations of the original complaint, except in the amended complaint it is averred that the poles, wires and appliances are “for a district service,” and, as to the threats, it declares that, “since the completion of the work of constructing said appliances for the operation of said messenger service, the defendants, and all of them, have threatened this plaintiff that, if he attempts to operate said messenger system in accordance with the terms of said franchise, they will, by force, destroy said appliances and render said messenger system inoperative, and, if not restrained by the order of this Court, defendants will carry said threats into execution;” it further states “that the poles, wires and appliances which the defendants threaten to destroy are .absolutely necessary and indispensable to the carrying on of the said business, and, if the same are injured or destroyed, said business cannot be carried on while the said wires are being replaced.” It is averred also that the loss of income cannot be told, for the reason that it is impossible to know in advance the patronage which may be secured; and that the defendant companies are insolvent. The motion to amend by filing the amended complaint was denied. Appellant assigns error in sustaining the objection to the introduction of evidence and in denying the motion to amend.

The original complaint did not state facts sufficient to constitute a cause of action. There is nothing in it to show that, at the time of commencing the action, the defendants, or any of them, were threatening to do any injury to the plaintiff, or that plaintiff at that time feared or believed that there was then existing danger; there is not any allegation of insolvency of any of defendants; there is nothing to show that great or irreparable injury will result from the execution of threats. Some of these points will be considered later in this opinion.

The objection to the evidence was properly sustained. The important qrrestion in this case is this: Did the court below abuse its discretion in refusing leave to file the amended complaint ?

No appearance was made by respondent in this Court. The transcript, the brief and the argument of appellant’s counsel all fail to point out on what particular ground the court refused leave to file. We therefore are forced to make a critical examination of the amended complaint, and, considering what judicial discretion is, to determine, without aid of counsel, whether or not the court abused its discretion.

It is not possible to give a general outline of a bill in equity that would be applicable in all cases, or even in a majority of them. There are, at least, three rules to be observed, however : (1) To state the plaintiff’s rights in the subject-matter; (2) to set up the acts which the defendant is doing or is threatening to do against such rights; and (3) to give a distinct statement, in ordinary and concise language, of such facts as show to the Court that the injury will be irreparable, s'

We first seek for a distinct statement of facts which show that the injury will be irreparable. There is nothing alleged to show that the plaintiff has put himself in a position to do any business or to earn any income, or that he has expended more than a trifling sum, or that he has sufficient facilities, apparatus, appliances or other means to carry out the purposes of the franchise. There is not a single allegation showing, or tending- to show, that plaintiff has hired or engaged the services of operators, procured offices, or put up any considerable number of poles or wires or other appliances. The only allegation is that plaintiff “has constructed and erected within the city of Butte wires and poles and appliances for a district seiVice.” The most liberal construction of this language cannot make it to mean that he has put up poles, wires and other appliances suitable and sufficient in number for the operation of a business so considerable that destruction of the same will result in irreparable injury. Possibly there have been put up no more than two poles and two wires, each one 100 feet long, with a telephone at each end thereof. The opinion of the complainant as to what will be irreparable injury is immaterial. The important question is, can the chancellor believe from the statement of facts that irreparable injury will result, judging from the statement of facts? Reading the ordinance, we find that authority is given to string wires over houses in certain streets of the city, and to put up poles and wires on such other streets and alleys as may be necessary for the business, and as may be determined by the city engineer. How large a territory has actually been covered might well have been alleged, but is not stated. So here, again, the Court has no means of knowing a fact upon which, with other things, if known, but not stated, it might base a conclusion that the business, if started, would be remunerative, and therefore irreparable injury would result from a destruction from the appliances now said to be ready for use. There being in this ease no present income to be lost, the future income being merely speculative, tbe pleader should to a reasonable extent show to the Court what work he has done and what money he has invested, — that is, what his earning capacity is, — so that the Court can reasonably infer whether or not the injury will be irreparable.

The allegation in the amended complaint, therefore, as to . the erection of the poles, wires and appliances, is so indefinite and uncertain as, in our opinion, to be insufficient, since it fails to show that plaintiff has any property of such value that its destruction would result in irreparable injury.

We are of the opinion that the amended complaint does not state facts sufficient to constitute a cause of action, in that it does not show to the court facts from which a conclusion should be drawn that the plaintiff has established or set up any system or enterprise, interference with which would result to him in irreparable injury. We notice that all references in the amended complaint to the kind of business to be entered upon are conflicting, vague and uncertain; they do not, in apt and suitable terms, describe the business contemplated by the city council. The ordinance authorizes the establishment of “a parcel delivery and telegraph call system,” but plaintiff in his amended complaint denominates his supposed enterprise as “a district service,” “messenger sea-vice,” “messenger system,” “district messenger and parcel delivery system,” and in the pi*ayer for injunction asks protection for his “messenger system,” but does not, in a single instance or in any way, refer to it as a “parcel delivery and telegraph call system.” The amended complaint was open to demurrer and to a motion to' make more definite and certain. The court was not, by any rule or principle, bound to permit such a pleading to be filed. It is not abuse, but good use, of discretion to say to the plaintiff in such a case: “Your complaint is insufficient and wanting in that definiteness, perspicuity and certainty necessary to show that you are about to suffer irreparable injury, and, in my discretion, I refuse leave to file it.” It is not abuse of discretion to refuse leave to file an amended complaint which does not state a cause of action, or which would be open to a motion to make more- definite and certain. (Smith v. Gould, 61 Wis. 31, 20 N. W. 369; Boone on Code Pleading, Sec. 239; Shipman v. State, 43 Wis. 381.)

By “discretion” is meant sound discretion, guided by law. It must not be controlled by humor, whim or caprice; but by the judgment and conscience of the judge, and not by the judgment or conscience of others. It must be used in deciding what is just and proper under the circumstances. It cannot be governed by any fixed principles or rules. The establishment of a clearly-defined rule -would be the end of discretion. (9 Am. & Eng. Enc. Law, p. 473, and notes; Howell v. Mills, 53 N. Y. 332; Norris v. Clinkcscales, 47 S. C. 488, 25 S. E. 797; Jensen v. Barbour, 12 Mont. 516, 31 Pac. 592.)

As the judgment must be affirmed for the reasons stated, we do not express any opinion as to the sufficiency of the allegations of the amended complaint as to threats.

Affirmed

Mr. Chief Justice Brantly :

I concur.

Mr. Justice Pigott :

I concur in the judgment of affirmance, but do not agree to all that is said in the foregoing opinion. The amended complaint which was offered is deficient in its allegation touching the extent, amount, and value of the property the destruction of which was threatened by the defendants; there is not enough stated to show that the threats, if executed, would cause irreparable damage. The court did not abuse its discretion in refusing to permit the proposed amended complaint to he filed, for it does not state facts sufficient to constitute a cause of action at law, — or, rather, it does not contain allegations which, if proved, would entitle the plaintiff to a legal remedy, — nor set forth matter sufficient in equity to require the interposition of the extraordinary remedy of injunction. My concurrence is upon the ground that the averments of the conrplaint and of the amended complaint with respect to the property do not show that the threatened injury thereto will work irreparable damage. Upon the other questions so clearly stated and ably discussed by Mr. Justice Milburn, I express no opinion, except in respect of the intimation that the amended complaint is open to a motion to make it certain, or more certain, as well as to a demurrer for want of substance. That it was obnoxious to a demurrer I am satisfied; but I am inclined to the view that, since Subdivision I of Section 680 of the Code of Civil Procedure provides for a demurrer on the ground that the complaint is ambiguous, unintelligible, or uncertain, a moton should not be entertained to make a complaint more certain. Where a demurrer lies for uncertainty, a motion ought not to be allowed for the same fault, unless the motion be considered as a demurrer; if so considered, it should be filed within the time that a demurrer for uncertainty might be filed. The statirte has prescribed attack by demurrer as the appropriate method of reaching the vice of uncertainty, and therefore a motion, as such, is not a remedy. Perhaps a motion may lie to make a complaint more definite; but for every fault mentioned in Section 680 which appears upon its face, demurrer seems to be the sole remedy, except where there is want of substance or lack of jurisdiction. This view is supported, it seems to me, by Section 685 of the Code, of Civil Procedure: “If no objection is taken, either by demurrer or answer, the defendant must be deemed to have waived the same, excepting only the objection to jurisdiction of the court, and the objection that-the complaint does not state facts sufficient to constitute a cause of action.”


text:
    IN RE WELLCOME.
    (No. 1,401.)
    (Submitted March 6, 1901.
    Decided March 8, 1901.)

      Disbarred Attorney — Reinstatement.
    The mere petition of attorneys and others for the reinstatement of a disbarred attorney will not be considered, such attorney not being before the Court in person or by petition by him subscribed, asking for reinstatement, and giving his reasons therefor.

      Petitions of W. Y. Pemberton and William Scallon, Esqs., and Walter Cooper et al. for the reinstatement of John B. Wellcome as a member .of the bar of the Supreme Court of the State of Montana.
   Order

Per Curiam.

Under no practice known to this Court, or to any other court, so far as this Court is advised, can the mere petitions of attorneys and others for the reinstatement of a disbarred attorney be considered.

Said John B. Wellcome not being before this Court in person, or by his petition by him subscribed, asking for reinstatement, and giving’ his reasons therefor, there is nothing which this Court can entertain; and therefore it is ordered:

That said petitions of said attorneys and others be not Considered.

Mr. Justice Pigott is of .the further opinion that the petitions or memorials are frivolous, state no reason why said Wellcome should be admitted to the bar, have no place among the papers or records of this Court, and should, therefore, be stricken from the files.


text:
    JONES, Respondent, v. GIESKE et al., Appellants.
    (No. 1,265.)
    (Submitted February 26, 1901.
    Decided March 11, 1901.)

      Contracts — Specific Performance — Dower Interest of Wife.

    Where it is sought to compel specific performance of a contract to convey, and it appears that defendant’s wife did not join in said contract, the decree for specific performance will require a conveyance by said defendant reserving to his wife whatever right of dower she may have in the land.

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

      Action by Alfred E. Jones against John E. Gieske and others. Judgment, for plaintiff. Defendants appeal.
    Modified.

      Mr. Sam Stephenson and Mr. James W. Freeman, for Appellants.

      Mr. William G. Downing, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This is an appeal from an order denying a motion for a new trial and from the judgment.

The suit was brought to cancel a deed made by one Millard and wife to one Mary E. Gieske, and to compel one John B. Gieske to convey to plaintiff by deed certain real estate. It is claimed that Millard and wife made and delivered to plaintiff a deed for lot 3 in block 10 of the townsite of Belt, Cascade county, Montana, which deed ivas never recorded; that defendant John B. Gieske agreed in writing to convey to plaintiff lot 28 in block 11 of said townsite upon the payment of a certain sum, and that plaintiff paid all of said sum except $225, and Avas ready and Avilling to pay said balance as per the terms of the agreement; that Gieske fraudulently induced plaintiff to deliver said unrecorded deed for said lot 3 to him (Gieske), vtho delivered it to Millard, and that Millard and Avife thereupon made and delivered to defendant Mary E. Gieske a deed for lot 3, and the deed Avas recorded; that said John B. Gieske fraudulently induced plaintiff to cancel said contract for lot 28, and to accept in consideration of the surrender of said contract a deed for a certain lot 1 in block 1, Riverside addition, St. Paul, Minnesota, together Avith a promissory note of defendant Johni B. Gieske for $250. It is charged that the property surrendered by plaintiff Avas valuable, and that the St. Paul lot Avas of little value, and the note Avorthless.

The court beloAA', sitting Avith a jury, found for plaintiff, and decreed: (1) that the $250 note be canceled; (2) that the plaintiff reconvey to John B. Gieske said lot in St. Paul; (3) that plaintiff pay to John B. Gieske $17.51, the balance of the $225 due on account of lot 28, deducting the amount adjudged to plaintiff for rents and costs; (4) that defendants convey to plaintiff, by deed, said lots 3 and 28; (5) that possession of said lots 3 and 28 be restored to plaintiff upon payment of said sum of $17.51; (6) that defendants be devested of all title to said lots 3 and 28, and that the titlc^ thereto' be vested in plaintiff; (7) that plaintiff have $150, the rents collected, and (8) for costs.

The appellant relies, in his brief, upon alleged insufficiency ■ of the evidence, and upon certain alleged particulars in which the judgment is against the law. We have carefully examined the evidence, and find that it is not insufficient to support the material findings as made and adopted by the court. We do not find that the court erred in its rulings on the evidence. The court did not err in denying the motion for a new trial.

In the light of the pleadings and^the evidence the judgment must, however, be modified as follows: Whereas said judgment orders that the said defendants convey to the. plaintiff, by deed, said lots 3 and 28, let it be ordered by said district court that said deed from Millard and wife to Mary E. Gieske for said lot 3 be canceled, and declared void, and that Millard at once return and deliver to plaintiff the deed for said lot 3 heretofore by him and his wife executed and delivered to plaintiff ; and whereas, the parties hereto have admitted that Mary E. Gieske was the wife of defendant John B. Gieske at the time said contract for the sale of lot 28 was entered into by plaintiff and John B. Gieske, and it appears that Mary E. Gieske did not join in said contract, it is ordered that the said judgment be further modified to the effect that John B. Gieske, without said Mary E. Gieske, be ordered to convey, by proper deed, to plaintiff, said lot 28, within five days after tender of the said balance of $17.51, due by plaintiff; and that said decree be further modified to reserve to Mary E. Gieske whatever right of dower she may have, if any, in said lot 28.

The order of tlie court denying tlie motion for a new trial is affirmed, and tlie judgment of the said court is affirmed as modified. Respondent will recover bis costs in tliis Court, except as against Mary E. Gieske^ to wliom lie will pay such costs as sbe lias incurred upon appeal.

Affirmed and modified.