author: ME. COMMISSIONER POOEMAN

text:
    BUTTE HARDWARE COMPANY, Appellant, v. KNOX, Respondent.
    (No. 1,518.)
    (Submitted April 14, 1903.
    Decided April 27, 1903.

      Pleading — Counterclaim — Fraud — False Representations— Judgment on the Pleadmgs.

    1. Fraud is never presumed, nor can it be proved unless the ultimate facts constituting- it be specifically- alleged, and where no- such facts are alleged, inferences and Innuendoes are wholly- insufficient as -a pleading.
    2. In an action on a note, defendant alleged by way of counterclaim that she had purchased a boiler of plaintiff, which was to be of a certain heating capacity, and that on testing the boiler it was found to be insufficient and otherwise defective. The only allegation that the seller made any representations as to the boiler, or that the buyer relied upou any such statements in making the purchase, was that the buyer was deceived by false representations that the boiler was a first-class boiler and sufficient, but there was no direct allegation that any such statements were made or relied on by the purchaser. It was' alleged that the note in suit was given to settle the 'balance of an account, but there was no statement that this account represented the balance due on the boiler. Held not to- state facts constituting a defense or -counterclaim.

      Appeal from, District Court, Silver Bow- Countyj William Clancy, Judge.

    ActioN by the Butte Hardware Gotmpany against Jessie C. Knox. Prom a judgment for defendant, plaintiff appeals.
    Reversed.

      Mr. Bernard/ Noon, and Mr. F. T. McBride, for Appellant.
    Ini order to render it actual fraud in any case, the following essential elements should be present: Eirst. The injisr-ep-rer smtation- must be of a matter of fact, and not of law. Second. It must be of a fact as distinguished from a mere expression of opinion. Third. It must be of a fact at the time or previously existing, and not a mere promise for the future. Fourth. It must be of a material matter. Fifth. - It must be relied upon by tbs person to- whom it is made or whose action it is intended to influence. (Yol. 8, First Ed., Am. & Eng. Ency. of Law, p. 636.)
    Representations of the value and utility of machines and the like are mere matters of opinion. (Yol. 8, First Eld., Am. & Eng, Ehcy. of Law, p, 636; Neidefer v. Chastain, 71 Ind. 363, 36 Am. Rep, 198.)
    If the representation isi asi toi a matter not equally open to both parties, it ma.y be said to be a statement of a fact; but if it is as to a matter that rests entirely in the judgment of the person making it, and. the means: of information upon which a fair judgment can be predicated are equally open to both parties, and there is no artifice or fraud used, to prevent the person to ba affected thereby from1 making an examination and forming a judgment for himself, the representation is a mere expression of opinion and does not support an action for fraud. (Yol. 8, First Ed., Am. & Eng. Ency. of Law, p, 636; 2 Addison on Toads, p. 422, Sec. 1186.)
    ■ Nor will misrepresentation be a defense to the contract where the party learns of the facts: in time to back out, yet chooses to complete or affirm the contract. (Whiting v. Hill, 23 Mich. 399; Pratt v. Ph§lbrook, 41 Me. 132; Verroll v. Yerroll, 63 N. Y. 45; Bridge v. Penniman, 105 N. Y. 62.)
    The law presumes that men are honest in their dealings, and it is. therefore well settled as a general rule that unless there is sorna special relation involving trust or confidence, or other exceptional circumstances’, fraud is never to' he presumed but must ba clearly proved by the party alleging the same. (Yol. 14, 2d1 Ed. Am. & Eng*. Ehcy. of Law, p, 190, and cases cited in note 3.)
    Equity aids the vigilant, not the slothful. This maxim has been termed a “special form, of the yet more general principle, he who seeks equity must do equity.” But in the form above stated it has a particular importance, because for a long time it supplied ini equity the place of the statute limitations at. law. Yery early in their history the courts of chancery began to require of siuitora before them promptness as a condition of relief. Indeed, the application of this maxim is defended for tbe same reasons and upon tibe same grounds as the statute of limitations. (Yol. 11, 2d Ed. Am. & Eng. Ehcy. of Law, p. 165; Pratt v. Gal. Mm. Go., 24 Fed. 816; Athens v. Hill, 1 Gra. 513; Wolf v. Great Falls Water Power, etc. Go., 15 Mont. 49.)
    General demurrer raises question of laches. (1 Beach, Modern E'q. Pr. Sec. 258, pi 291, and cases cited in1 note 2.)
    An- action for relief on the ground of fraud or mistake (the cause of action in such case not to ba deemed to have accrued until the discovery by the aggrieved party of tho facts constituting fraud or mistake), shall ba commenced within two> years. (Subd.. 4, Sec. 524, Coda Civ. Phoie.; Sec. 5165, Pol. Code; Subd. 4, Sec. 42, First Division Compiled Statutes of Montana. )i

      Mr. John N. Kirk, Mr. L. J. Hamilton, and Messrs. Sinclair & Dygert, for Respondent.
    Where there is an issue raised by the pleadings, it is error to render judgment thereon. {Bach, Gory & Go. v. Mont. L.- & P. Go., 15 Mont. 346, 39 Pac. 291; Floyd v. Johnson, 17 Mont. 411, 43 Pac. 631.)
    Unless all the material issues in the case can be virtually settled by the pleadings, a judgment on the pleadings1 should not be rendered1. ■ {Leopold v. Silverman, I Mont. 281, 16 Pae. 580.)
    Answering appellants argument on its motion to instruct the jury for judgment on the evidence and to make findings of fact as requested by it, we submit the following as the law applicable to the evidence on trial: Sees-. 2291, 2292, Civil Code; Ehcy. of Law1, Yol. 14, pp. 34, 35, and oases cited.
    Where there is any doubt as to whether a statement was intended and understood as a mere expression of opinion, or a statement of fact, the question must be passed upon by a jury. (Ency. of Law, Vol. 14, p. 35; Muse v. Shaw, 124 Mass. 59; Teague v. Inuin, 12*7 Mass. 217; Foster v. Kennedy, 38 Ala. 359, 81 Am. Deo. 56.)
    A representation that a house is “as good as. new,” whereas, in fact, it was an old! building* '^.n part and had been repaired by the vendors, and some of the timbers and boards used in it were rotten, was the false representation of a fact and entitled the purchaser to rescind. (Fibel -v. Von Fell, 55 N. J. Eq. 670.)
    As a general rule,, if statements! ara made positively as of his own knowledge by one who is apparently in a position to know the truth and are relied upon by the person to whom they are made, they are not toi be treated as mere matters of opinion. (Ehey. of Law, Vol. 14, p. 44; Henderson v. Henshad, 54 Eed. 420; Green v. Farmer, 80 Eed. 41; Clifford v. Conill, 29 Cal. 589; Todd v. Figott, 114 Ill. 648; Shind v. Pierce, 6.Allen, 413 (Mass.) ; Haven V. Neil, 43 Minn. 315; Dressier v. Bees, 27 Neb. 515; Messer v. Smyth, 59 N. H. 41; Van Fpps v. Harrison (N. Y.), 5 Hill, 63.)
    ^presentations in regard to. the qualities and characteristics of an article made by the seller’ who may be presumed to> speak from actual knowledge are noiti statements of mere opinion. (Darby v. Stuart, 63 Vt. 570.)
    A false statement by the seller of an article “that it is well' made and will stand up to concert pitch,” may authorize the buyer to rescind and is not mere opinion. (Sh'md v. Fierce (Mass.), 6 AEen, 413.)
    The seller is liable in an action for deceit for false representations as to soundness, where the representation! was that, “that it was sound;” or “w]as sound as far as he knew,” where the seller knew at the time that it was unsound. (West v. Fmery, 17 Vt. 583, 44 Am. Dee. 356.)
    A statement by the seller that “they-are as thrifty and healthy a lot as ha has ever owned, and that he has been in the business for a good many years,” is a material representation of a fact and not a mere matter of opinion, and if false, and known to him to be false, will authorize a verdict for fraud and deceit (Stevens v. Bradley, 89 Iowa, 174; Lewis v. Jewell, 151 Mass. 345, 21 Am. St. Hep-. 454; Baker v. Faucet, 69 Ill. App-. 300; Perkins v. Bice, 12 Am. Dec. 298; Goon v. Atwell, 46 N. H. 510; Martin v. Jordan•, 60 Me. 531; Mill v. Wilson, 88 Oal. 92; Mason v. Boplie, 66 Barb. 180.)
    It is sufficient for the plaintiff to offer in the pleading to return to: the seller what he hasi used, and, if their rights can be adjusted by the judgment, the rule that one who seeks to rescind a contract on the ground of fraud must place the other party in as good a situation as he was |in before the contract is satisfied. (Smith v. Houlett, 51 N. Y. S. 910.)
    Where a purchaser has no knowledge that statements of fact of a, vendor are false, he may rely on them implicitly if they are not so openly and palpably false that their untruth1 is aj> parent to an qrdinarily prudent person. (Gityi of Tacoma v. Tacoma Light & Water Go., 50 Pac. 55.)
    A statement that an article is “sound as a dollar,” and the purchaser relying on such statement makes the purchase, the seller is liable for all damage necessarily sustained by the buyer by reason of breach of such vT,arranty. (Schee v. Shore, 50 Pac. 903.)
    It is not essential that misrepresentation, whereby one obtains an advantage over another, should be intentionally false. (McCready v. Phillips, 76 N. W. 885; Morre v. Hinsdale, 77 Mo. App. 217.)
    Falsa representations of a seller of personal property, made to bring, about a sale of the property, is ground for rescisión of the sale whether or not the seller knew them! to be false, as he is bound to know that representations made by him' are true. {Beetle v. Anderson, 73 N. W. 560; Schofield G. & P. Co. v. Schofield, 401 Atl. 1046.)
    Whether a representation “good as gold” is a matter of opinion or a statement of fact on which the vendee was entitled to rely is a question for the jury. {Andrews v. Jackson (Mass.), 47 N. E. 412.),

      To entitle the buyer to recover for misrepresentations by tbe seller, be need not ba,ve relied solely on tbe representations, but it is sufficient if tbe representations bad a material influence in inducing tbe purchase. (Hcmdy v. Waldeon, 35 Atl. 884.)
   ME. COMMISSIONER POOEMAN

prepared tbe opinion for tba court.

Tbis action was brought for tbe purpose of obtaining judgment against defemdanitl for tbe amount alleged to be due on a •promissory note executed by defendant, and payable to plaintiff, and for tba foreclosure of a certain real estate mortgage given by defendant to secura tbe payment of said note. Tba complaint is in tbe usual form, and sets out a copy of the note and mortgage.

Tbe defendant filed an answer, in which she admitted tbe allegations of tbe complaint, but, as a plea in avoidance, alleged certain facts relating to tbe execution of said note and mortgage. Tbe answer is here given.in full in so far as it is necessary to refer to the same in determining tba questions raised with respect thereto by the errors assigned:

“(1) At .the time of tba execution of tbe said promissory note and mortgage sued upon in this action, and for a long time prior and subsequent thereto!, the defendant was engaged' in tbe business of conducting a greenhouse in tbe city of Butte, state of Montana; that d.ef endant bad in her employ a man by tbe name of J. H. Mitchell; that said Mitchell contracted with J. M. Montgomery & Co., who were conducting a boiler works in the city of Butte, for a 40-horsa poiwler boiler toi be used in the beating of the greenhouses' run by defendant; that tba said boiler was to have sufficient capacity to beat all tba greenhouses defendant then bad standing, and; in addition thereto; to beat at least as many more greenhouses! when they were erected, and said boiler was to furnish tba beat at a moderate cost for fuel; that said boiler was to be first class in every respect, and tbe pírica thereof, set up., was to be $>785.”

Paragraph 2 alleges, on information and belief, that the firm of J. M. Montgomery & Co. was composed of J. M. Montgomery? and the plaintiff.

Paragraph 3 alleges that J. M., Montgomery & Co. placed a certain fivei-flue steamboat boiler in the greenhouse of defendant ; that the same was entirely unfit for the purpose for which it was contracted.

Paragraph 4 alleges that the defendant gave the boiler a thorough test, and found that the same consumed an enormous amount of fuel, and was not fit for the purpose of heating the greenhouse; that some of her plants froze, and she was damaged to the extent of $1,500.

Paragraph 5 alleges that the boiler never was a first-class boiler, nor, intended to be nsed for heating, purposes; that the defendant was obliged to remove the same from her greenhouse, and to replace it with a; 54-flue boiler.

“(6) That defendant was deceived and misled in the purchase of the boiler by the said J. M. Montgomery & Co., in their false representations that the said boiler was a first-class boiler, and would do the heating, of said greenhouse, and other greenhouses to he erected by defendant, at a moderate cost for fuel.”

“(7) That defendant paid on account of said boiler the sum of $285.”

“(8) That the said nota and mortgage sued upon in' this action was given to secure the balance of an account due the said J. M. Montgomery & Co., which account defendant alleges, upon information' and belief, has; previous to the execution of the note and mortgage sued upon in this action, been assigned to the plaintiff herein; and defendant further alleges that she has already paid1 more than' said boiler was wiotrth, and that she never received any consideration for the nota and mortgage which she executed to this plaintiff, and which is sued upon in this action; that the same Was executed and delivered through a misapprehension of her rights in the premiises; and that she is now. ready and willing to' turn over to the said J. M. Montgomery & Co., or to tbe plaintiff herein, tbe said boiler, and tenders tbe same to either of them.”

Tbe answer then concludes with a prayer that tbe note and mortgage described in plaintiff’s complaint be canceled by decree of court.

' The plaintiff moved for judgment on the pleadings on; the ground! “that the answer of defendant does not state facts sufficient toi constitute a defense toi plaintiff’s complaint.” This motion was by tbe court overruled. Plaintiff then filed a replication. At the trial tbe defendant claimed- the right, and was allowed, to open and close the case. Plaintiff thereupon objected to the introduction of any testimony on the part of defendant, for the reason “that defendant’s answer does not state facts sufficient to constitute a defense, or counterclaim to tbe cause of action set out an plaintiff’s complaint.” This objection was by the court overruled. Judgment was rendered for defendant. From this judgment the plaintiff appeals, and assigns the action of the court in overruling the motion for judgment on the pleadings, and in overruling plaintiff’s objection to the introduction of any testimony on the part of defendant, as errors Nos1. 1 and 2 in its brief filed. These errors properly present for determination the sufficiency of the answer as a defense to the action, and will be considered together.

It is a well-recognized principle of pleading that, where- it is sought to set aside or avoid a contract on the ground of false representations or of fraud, the ultimate! facta constituting such representations or fraud must be specifically alleged, that the coturt may be advised as to whether the matters! pleaded will, if proved, he sufficient to. warrant the relief demanded. Men are presumed to act fairly and to deal fairly with each other in their business transactions, and fraud! isi never presumed, nor can it be proven unless alleged. Mere expressions of opinion or of judgment do not, except in particular cases, which must be shown by tbe pleading, constitute actionable fraud or false representations. Statements made by tbe owner of property as to tbe superior kind, quality or character of bis possessions do not of themselves constitute actionable fraud or false representations, though such statements may not accord with the truth. Where a contract is attackedi on the ground that it was procured through false representations or fraud', the opposing party is entitled toi know from direct and consistent allegations of the pleading that he is called upon to. defend against such charges.

The foregoing principles are supported in whole or in part by the following cases: Territory v. Underwood, 8 Mont. 133, 19 Pac. 398; York v. Steward, 21 Mont. 518, 55 Pac. 29, 43 L. R. A. 125; State ex rel. Crawford v. M. & M. L. & I. Co., 20 Mont. 203, 50 Pac. 420; Budd v. T. C. Power & Co., 8 Mont. 384, 20 Pac. 820; Bickle v. Irvine, 9 Mont. 253, 23 Pac. 244, and cases cited; First Nat’l Bank v. Boyce, 15 Mont. 173, 38 Pac. 829; State ex rel. N. W. Nat’l Bank v. Dickerman, 16 Mont. 288, 40 Pac. 698; Ency. Pleading & Practice; Vol. 8, p. 900; Cheney v. Powell, 88 Ga. 629, 15 S. E. 750; Burden v. Burden, 141 Ind. 471, 40 N. E. 1067; Cade v. Head Camp W. O. W., 27 Wash. 218, 67 Pac. 603; Grentner v. Fehrenschield, 64 Kansas, 764, 68 Pac. 619.

The ease of Stetson v. Riggs, reported in 37 Neb. 797, 56 N. W. 628, was an action for the foreclosure of a mortgage on certain real estate; in which the defendant filed an answer alleging that a part of the consideration for the note and mortgage sued upon ivas the purchase price, of certain real estate which the defendant had purchased from the plaintiff; that the plaintiff had represented that the real estate was ¡in a certain locality, and showed the same to' the, defendant, but that in the conveyance the plaintiff described a certain other piece of land, which had not been shown to. defendant as such purchaser, and which he had never agreed to> purchase; that the piece of land actually conveyed was worth $500 less than that which was shown to defendant by the plaintiff, and which he had: contracted for. The plaintiff a.t the tajial objected to the introduction of any evidence, for tire, reason that the answer did not state facts sufficient to constitute a defense. The supreme court, in passing upon tiie case, uses this language: “The defense of Biggs was in effect an action against Stetson for damagesi for false representations made by the latter. This answer, then, to be good, must allege with reasonable certainty: (a) That Stetson made soma representation to Biggs, meaning, he should act on it; (b) that the representation made was1 false; (c) that Biggs believed such representation to be true, relied and) acted upon it, and was thereby damaged. (Byard v. Holmes, 34 N. J. Law, 296, and cases there cited.) * * * Runge v. Brown, 23 Neb. 817 [37 N. W. 660].” The court then holds the answer insufficient as not constituting a cause of action against Stetson, and reversed the judgment of the lower court.

“It is incumbent upon the party claiming to recover in an action for deceit founded upon false representations to show that he wias influenced by them * * * to. his damage.” (Taylor v. Guest, 58 N. Y. 262.)

“To sustain a judgment for damages for fraud and deceit in the sale of a newspaper, upon the ground that its subscription list was not as large; as represented, it must be alleged, and also shown, that the purchaser relied on the representation of the number of paying subscribers as an, inducement to the purchase.” (White v. Smith, 39 Nan. 752, 18 Pac. 931.)

“It is also necessary for the plaintiff in such an action [damage for false representation] to prove that he believed and relied upon the false representation in order to entitle him to' recover.” (Humphrey v. Merriam, 32 Minn. 197, 20 N. W. 138.)

“It should be averred that the false statements were believed to be true by the plaintiffs, and, thus believing, were relied upon by them', and that they induced the action taken by the plaintiffs which resulted in damage to; them.” (Pforzheimer v. Selkirk, 71 Mich. 600, 40 N. W. 12; Parker v. Armstrong, 55 Mich. 176, 20 N. W. 892.)

“False representations or fraud will not avoid a sale unless it appears that the seller wag thereby induced to do that which be would probably not have done except for suck fraud or deception.” (Klopenstein v. Mulcahy, 4 Nev. 296.)

Innuendo cannot perform tbe office of direct statement, nor inference suffice for positive allegation.

From tbe foregoing authorities it is apparent tbat if tbis an-sewer is sufficient it must appear therefrom with reasonable certainty: (1) Tbat certain representations wbicb defendant bad a right to rely upon were made by or at tbe instance of the vendor; (2) that they were false; (3) that defendant believed such representations to be true, and did rely upon them, and was induced thereby toi enter into the contract; (4) that der fendant suffered damages thereby; (5) that the note sued upon represents the purchase price, or a part of it, for the boiler described ¡in tbe answer.

From an examination of this answer it is found that paragraph 1 thereof contains the allegation that this boiler was purchased from J. M. Montgomery & Co: by the agent of tbe defendant; tbat it wasi to possess certain qualities, and to accomplish certain purposes. Further on, in paragraph 2, we find the statement that it was entirely unfit for the purposes for which it was contracted; and this statement isi repeated in different forms in paragraphs 4 and 5.

It will be further found that nowhere, except in paragraph 6 of tbe answer, is there any allegation, or even an intimation, that tbe vendor ever made any representations or statements whatsoever with reference to tbis boiler; nor is there any statement or intimation that the defendant ever reliod upon any statements made by the vendor, or that she was induced to make the purchase by reason of qny representations. The whole of paragraph 6 is in the nature of an inference to be drawn from some other part of the pleading, and no other part of the pleading justifies such an inference. It is more properly an innuendo; without any previous direct statement to base it upon. And, as we have seen heretofore, fraud is not to be inferred nor presumed, unless the facts, properly stated, justify such an inference or p,resumption; and, where no- such facte are alleged, inferences and innuendoes are wholly insufficient as a pleading.

Paragraph 8 of the answer contains the allegation that the note and mortgage sued upon were given to secure the balance of an account due said J. M. Montgomery & Co.; but there is no statement, direct or indirect, that'this account represented the balance due on this boiler account. Por aught the pleadings show, this account may have been for other commodities or articles of merchandise. It isi true it is alleged in this paragraph that defendant never* received any consideration for the note, but this is based, upon the theory that the note is void bet-cause of false representations made, and thesis representations are not sufficiently pleaded to constitute a defense or counterclaim, to this action.

It may bei urged that thei answer1 filed by the-defendant is in the nature of a counterclaim, and not a defense, and that plaintiff’s motion for judgment on the pleadings is not sufficient for the reason that he does not use tire term “counterclaim” therein. Whatever there may be. in this contention, it is not necessary to discuss or to decide here, for we are considering thjis assignment of error in connection with thei second assignment, which raises practically the same question, and in which second a.s--signment the term “counterclaim” is used.

Thei action of the trial court in overruling plaintiff’s objection to the introduction of any testimony on the part of defendant was, for the reason heretofore stated, erroneous, and the judgment rendered by the district court in said cause should be reversed.

We therefore recommend 'that the judgment heretofore entered in this cause by the trial court be reversed, and the cause remanded.

Per, Curiam. — Por the reasons: stated in the foregping opinion, the judgment isi reversed, and the cause remanded.


source: Caselaw Access Project

author: MR CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    STATE ex rel. STROMBERG-MULLINS CO., Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,932.)
    (Submitted April 13, 1903.
    Decided May 4, 1903.)

      New Trial — Statutory Provisions — Noncom.pliance — Effect— Statement —■ Settlement — Loss of Right — Revivor—Amend-ments — A cceptance — Notice—Man damns.

    1. Since a motion for a new trial is a statutory remedy, in ordei to successfully invoke it, the mode pointed out’ by the statute must be pursued.
    2. Under Code of Civil Procedure, Section 1173, Subdivision 3, providing that, where amendments to a statement of the case for a new trial are not adopted, the proposed statements and amendments shall be presented to the judge by the movant within ten days, on five days’ notice to the adverse party, or delivered to the clerk for the judge, where movant notified his adversary that the statement would be presented to the judge for settlement at a certain time, and at the time appointed failed to appear, and did not present the statement to the judge or leave it with the clerk, or then and there adopt the amendments of the adverse party, it lost its right to have the statement settled at all.
    3. The right could not be revived by a subsequent adoption of the adverse party’s amendments.
    4. A motion filed with the clerk for the settlement of a statement on motion for new trial, reciting the acceptance of the adverse party’s amendments to the statement, but not called to such adverse party’s attention, is not notice to him of such acceptance.
    5. Under the provisions of the Code of Civil Procedure, it is the duty of the judge to settle statements and bills of exceptions, and for this purpose they must be presented to him," and not to the court as such. Quaere: Whether in a proceeding for a writ of mandamus to compel a district judge to settle a statement it is proper practice to make the court a party to the proceeding?
    ORIGINAL application for writ of mandamus by tlie state, on tlie relation of the Stromberg-Mullins Company, against tbe Second Judicial District Court in and for tlie county of Silver Bow, and William Clancy, a judge thereof. On motion to quash.
    Motion granted.

      Messrs. Kwh & Olmton, for Relator.

      Mr. J. E. Nealy, for Respondents.
   MR CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Original application for a wilt of mandamus to compel William Clancy, as judge of the Second judicial district court, to settle a statement on motion for a new1 trial. On application to this court an alternative writ was issued, directing the defendant judge to settle the statement or show cause why he had not done so. He appeared by motion to quash the writ, and also by answer. After argument, the question of law arising upon the record was submitted.

Thera is no material controversy as to the facts. So-1 far as they are necessary to be stated, they are the following: The causa of Harrington v. Stromberg-Mullins Company, a corporation, was tried in the district court of Silver Bow county on December 8, 1902, the defendant judge presiding. The plaintiff had verdict, and a judgment was rendered thereon. On December 10th the relator, through' its counsel, served and filed its notice of intention to' move for. a new trial, and on the same day obtained an order granting it'thirty days’ additional time in which to1 prepare and serve its -statement. The statement was served on counsel for the plaintiff in the case on January 17, 1903. Counsel proposed various amendments to the statement on January 20th. On January 21st he was served with notice that certain of the amendments had been adopted, but that others of them had not, and that the statement would be' presented to the defendant judge for settlement on January 27th, at 10 o’clock a. m., at the courtroom where the judge held court. At the appointed hour counsel for the plaintiff appeared. Counsel for the defendant (relator) did not appear, nor did they on that day leave with the cleric of the court or with the judge the statement, with the amendments. Sometime ini the afternoon of that day, however, one of counsel for the relator took the statement, without the amendments, to one of the clerk’s deputies, and, after having, him indorse upon it the date of its reception, took it' away again. It was retained by counsel until the morning of January 31st, when it was again brought to the office of the clerk, but without the amendments, either in a sepa-rata paper or incorporated in the statement as a part of it. On January 31st, upon motion of counsel for relator, 'the statement was set for hearing on February 7 th, the plaintiffs attorney orally objecting, to the setting of the hearing, or any consideration of the matter of settlement, on the ground that it was presented out of time. On February 3d, counsel for relator filed with the clerk a motion, in which they recited that they, accepted all of the amendments proposed by opposing counsel, and asked that the statement be settled and ordered filed. No order was then made or entered by the court or judge upon this motion. On February 7th the hearing was continued until February 14th. On this latter date plaintiff’s counsel filed his written objection to the settlement, setting forth as a ground thereof, among others, that the proposed statement, with the amendments, had • not been presented .to the judge for settlement, nor left with the clerk for the judg;e, under the requirements of the statute, and, therefore, that relator had lost its1 right tO'have the same settled. The matter of settlement was continued thereafter from time to time until March 21st, when, after a hearing, the judge made an order sustaining the plaintiffs objection, and declined to settle the statement.

The question presented, therefore, is: Did- the relator, by its failure to present the statement, with the amendments, in accordance with the statute, or, in lieu thereof, by its failure to leave them with the clerk for the judge, lose its right to have the statement engrossed and settled ? It is argued by counsel that, notwithstanding they had first elected toi pursue the course indicated by their notice to secure the settlement, and the situation in which they found themselves on February 3d, they nevertheless had the right at that time to adopt the amendments! theretofore rejected, and insist that-the judge should settle the statement. In this we think counsel are in error. A motion- for a new trial is a statutory remedy, and, in order to successfully invoke it, the mode pointed out hy the statute must he pursued. (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.) If tbe purpose is to make tbe motion upon a statement of tbe case, tbe statement must be prepared and settled under tbe provisions of Section 1155 and Subdivisions 2 and 3 of Section 1173 of tbe Code of Civil Procedure. Under these provisions, if no amendments are proposed by tbe adverse party, tbe statement may be presented to tbe judge for settlement witbin a reasonable time; if amendments are proposed and adopted, tbe statement may be engrossed and presented for settlement witbin a like reasonable time. In neither case is notice to tbe adverse party necessary. If tbe amendments are not adopted, either of two courses may be pursued by tbe moving party: Tbe statement and amendments may be presented toi the judge witbin ten rays after tbe amendments are proposed, upon five days’ notice to tbe adverse party, or they may be delivered to1 the clerk for tbe judge. If they are presented to tbe judge at tbe time appointed, be may proceed at once to a settlement, or be may appoint another time for that purpose. If they are delivered to tbe clerk, be must at once deliver them to tbe judge when the judge is in tbe county; if the judge is absent from tbe county, tbe clerk must, upon notice in writing by any of the parties, forward them to the judge, otherwise tbe clerk must deliver them! to tbe judge .immediately upon his return. Thereupon it becomes tbe duty of tbe judge to fix a time for tbe settlement, and to cause the parties to be notified by tbe clerk. At tbe time so fixed, or at a time to which a postponement may be bad, tbe judge must malee tbe settlement. The judge is not authorized nor required to settle a statement not presented in substantial conformity with these requirements. The moving party is entitled to have bis motion beard and disposed of upon tbe basis upon which be makes it (Sweeney v. Great Falls & Canada Ry. Co. 11 Mont. 34, 27 Pac. 347), yet be cannot insist that tbe court shall settle tbe statement upon which he intends to> predicate the motion, unless he has observed the requirements of the statute or such observance has been waived by tbe adverse party. In this instance the relator notified the adverse party that it would1 present tbe statement to the judge at a specified time and place. Though the adverse party appeared at that tima and place, the relator did not. Its counsel did not them present the statement, with the amendments^ to the judge, nor did they then or thereafter leave the statement and amendments with the clerk for the judge. If the judge was absent (and it does not appear from the record in this cause whether he was or not), the statement should have been left with the clerk for him. Ohe or the other course should have been pursued. As the relator pursued neither, and did not notify the adverse party them and there that it would accept the amendments, iit lost its right to have the statement settled at all. So far as the record shows, it never gave the adverse party notice that the amendments had been adopted, but left counsel to find out this fact from the written motion filed with the clerk. Under the circumstances^, no obligation rested upon the defendant judge toi settle the statement. Nor could the relator thereafter revive this right by adop|ting the amendments and then asking that the statement as amended be settled1. But, conceding that it might have preserved its right, and, by adopting, accepted the amendments, and notifying counsel of the adverse party that it had done so, it failed to give this notice. A mere motion filed with the clerk, but not called to the attention of the adverse party, is not notice to such adverse party,, unless the statute SO' provides. We know of no provision of the statute authorizing the notice to be given in this wiay.

Rehearing denied May 18, 1903.

We note that the coui*t is made a party to this proceeding. Under the statute, it is the duty of the judge to settle statements and bills of exception, and for this purpose they must be pre*-sented to him, and not to the court as such. No point is made by counsel on either side as to whether this is proper pfractiee. We therefore pass it without comment.'

The alternative writ isi quashed and set aside, and the proceeding is dismissed.

Dismissed.


author: MR. GHIE'F JUSTICE! BRANlTLY

text:
    ROBERTSON et al., Appellants, v. LONGLEY et al., Respondents.
    (No. 1,564.)
    (Submitted May 2, 1903.
    Decided May 4, 1903.)

      Appeal — Sufficiency of Evidence — Bevieiu—Bill of Exceptions —Specification of Particulars — Complete Record.

    Í. under Code of Civil Procedure, Section 1152, providing that, when an exception to a verdict or decision is on account of tbe insufficiency of tbe evidence, tbe objection must specify tbe particulars in wbicb tbe evidence is alleged to be insufficient, a bill of exceptions containing no specifications whatever, nor pointing out in any manner any insufficiency, will not warrant a review of tbe evidence.
    2. where it is not apparent from any recital in the record that it contains all tbe evidence, or tbe substance thereof, and there is no statement in the certificate of tbe Judge from wbicb it may be inferred that the bill contains all the evidence in substance, its sufficiency cannot be reviewed.

      Appeal from District Court, Parle County; Frank Henry, Judge.

    Action by Brant C. Robertson and others against T. W-. Longley and another. Judgment for defendants', and plaintiffs appeal.
    Affirmed.

      Mr. T. J. Porter, and Mr. A. P. Stark, for Appellants'.
   MR. GHIE'F JUSTICE! BRANlTLY

delivered the-opinion of the court.

This action was brought by the plaintiffs, as stockholders of the Enterprise Mining & Smelting Cbmpany, a corporation, to "obtain a decree declaring the defendants! trustees of the title to the New: Enterprise and Blue Mountain quartz lode mining claims for the benefit of the corporation, and requiring them to make conveyances of the property to it. From a judgment in favor of the defendants', plaintiffs have appealed.

There was no motion for a newi trial in the court below, and the only question argued in the brief of appellants is the insufficiency of the evidence to sustain, the findings. TJpon examination of the transcript, we find that we cannot consider this question for two reasons:

1. Section 1152 of the Code of Civil Procedure provides that, “when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to 'justify it, the objection must specify the particulars in which such evidence' is alleged to- be insufficient.” The bill of exceptions found in the record contains no specifications whatever, nor any attempt in any manner to- point out any alleged insufficiency of the evidence. It must, therefore, be disregarded.

2. It is not apparent from any recital in the record that it contains all the evidence, or the substance thereof, heard by the court below at the trial; nor is there any statement in the certificate of the judge from which- the inference is permissible that the bill contains all the evidence in substance-. The record, therefore, does not present the question which appellant® desire to have reviewed. (State v. Shepphard, 23 Mont. 323, 58 Pac. 868; T. C. Power & Bro. v. Stocking et al., 26 Mont. 478, 68 Pac. 857; King v. Pony Gold Mining Co. et al., 28 Mont. 74, 72 Pac. 309.) The judgment is therefore, affirmed.

Affirmed.


author: MR CHIEF JUSTICE BRANTLY MR. CI1IEP JUSTICE BRANTLY

text:
    LISKER, Appellant, v. O’ROURKE, Respondent.
    (No. 1,554.)
    (Submitted April 29, 1903.
    Decided May 4, 1903.)

      Trial — Witnesses — Examination in GMef — -Anticipating Defense — Responsiveness of Answer — Appeal—Record—Omission of Judgment — Dismissal.
    1. It. was not error to exclude evidence of plaintiff in chief, which, though relevant to the issue made by the answer, was not necessary to establish the case as alleged in the complaint.

      2. It was not error to strike out a voluntary statement made by defendant, not responsive to the question asked him, and irrelevant to the issues in the case.
    3. Under Code of Civil Procedure, Sections 1722, 1736, providing that an appeal may be taken from a final judgment entered in an action, and that appellant must furnish the court with a copy of the judgment roll, where the record does not show that any judgment has been entered in the case in the court below, an appeal from the judgment will be dismissed.
    4. A minute entry directing judgment to be entered for defendant is not a judgment.
    5. Under Code of Civil Procedure, Sections 1738, 1176, upon appeal from an order denying a new trial the record must contain a copy of the judgment roll.

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

    ActioN by A. A. Lisker against John O’Rourke. From a judgment for defendant and from an' order denying a new trial, plaintiff appeals.
    Appeal from judgment dismissed; order affirmed.

      Mr. B. B. Howell, anddfr. Charles B. Sacheit, for Appellant.

      Mr. John 0. Bender, for Respondent.
   MR CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was brought by the plaintiff, as surety, to obtain contribution from the defendant, his cosurety. The defendant had judgment. The plaintiff has appealed' from the judgment and an order denying a new1 trial.

’ 1. Upon the appeal from the order, the errors assigned are ulppn the rulings of the court in excluding certain evidtence offered by the plaintiff, and) in striking, out a certain statement made by the defendant when testifying in his own behalf. The evidence offered and excluded wasi neither, relevant to, nor did it tend in any way to establish, the cause of action alleged in the complaint. It related wholly, to matters alleged in the answer by way of affirmative defense. The plaintiff cannot complain because he was not permitted to introduce in chief evidence which, though relevant to the issue made by the answer, was' not necessary to make out his case as alleged. The evidence was properly excluded. -The evidence stricken out was a voluntary statement made by the defendant, not responsive to any question asked him, and wholly irrelevant to the issues in the: case. This ruling was also correct.

2. We cannot consider any. error assigned upon the appeal from the judgment, for the reason that the record does not show that any judgment has been entered in the case in the court below. To support an appeal, the judgment must not only be entered (Code of Civil Procedure, Sec. 1722, Session Laws of 1899, p-. 146), but the record on appeal must contain a copy of it (Code of Civil Procedure, See. 1736). The record contains a copy óf a minute entry directing judgment to be entered for the defendant. This order is: not a judgment. (Butte & Boston Con. Mining Co. v. Mont. Ore Pur. Co., 27 Mont. 152, 69 Pac. 714.) This appeal must therefore be dismissed. (Brunell v. Logan, 16 Mont. 307, 40 Pac. 597.)

The appeal from the judgment is' dismissed; the order denying a new trial is affirmed.

O'N Motion eob RehbabiNg.

(Submitted June 6, 1903. Decided June 8, 1903.)

MR. CI1IEP JUSTICE BRANTLY

delivered the opinion of the court.

The plaintiff has submitted a motion for a. rehearing "herein, in which the point is made that this court was in error in holding. in the original opinion that the evidence excluded was properly excluded because it was offered_in chief, whereas it related' wholly to matters alleged in the answer1 by way of an affirmative defense and should! have been offered, if at, all, by way of rebuttal. It is argued that under a stipulation filed by. counsel at the opening of the trial, the burden was cast upon the plaintiff to avoid the effect of the affirmative matter so set up; in the answer, and this being so’, and- tbe evidence tending directly to sbow an estoppel upon tbe defendant, it was competent and should have been admitted. We do not think this position tenable. After an examination of the record under the assumption that the theory of the plaintiff as to the burden of proof is correct, we find that the evidence was not relevant to any issue in the case. There was therefore no> error in the ruling. But even if there were, the plaintiff is in no position to take advantage of it.

Our attention is nowi called to the fact that the appeal from the order denying a new trial should also havei been dismissed, for the reason that the record; fails to show that judgment had been entered! in the district court and, therefore, that there is noi judgment roll in the record as filed in this court. This course should have been pursued by this court, for upon appeal from an order denying a new trial the record must contain, among other things) a copy of the judgment roll. (Sections 1738 and 1176, Code of Civil Procedure.) No question presented on the appeal from the order denying a new trial was! properly before the court for consideration. The same result is reached, however, in the disposition of the case asi made, and we shall not now reopen it in order to rectify this technical error in practice.

The motion for a rehearing is denied.

Denied.


author: MR. JUSTICE MILBURN

text:
    MILLER, et al., Respondents, v. MATHESON et al., Appellants.
    (No. 1,562.)
    (Submitted May 2, 1903.
    Decided May 4, 1903.)

      Appeal — Denial of, Gontimumce — Record — Insufficiency— Review.

    Where there was nothing in the record to show that any motion for a continuance was made, heard or determined by the court, or that the court ever made an order continuing or refusing to continue the cause, an assignment that the court erred in overruling defendant’s motion for a continuance could not be reviewed.

      Appeal from District Court, Teton, County; D. F. Smith, Judge.

    ActioN by O. A. Miller and A. O. Longmuir, co-partners and doing’ business under the firm name of Miller & Longmuir, against L. D. Matbeson and Isaac Morehouse, co-partners and doing business under the firm' name of L. D. Matbeson &¿ Co. Fpom a judgment in favor of plaintiffs', defendants appeal.
    Affirmed.

      Mr. Charles O’Donnell, for Appellants.

      Mr. J. G. Bair, and Mr. II. S. Hepner, for Respondents.
   MR. JUSTICE MILBURN

delivered tbe opinion of tbe court.

Tbis is an action by tbe plaintiffs to recover from tbe defendants tbe sum of $500. After issue bald been joined and tbe case set for trial, tbe defendants (appellants herein) served and filed tbe affidavit of Isaac Morehouse, one of tbe defendants, it being an affidavit for continuance of tbe cause. Tbe case was set to be tried on tbe 22d day of November*, 1899, and came on for trial on tbe following day, on which day tbe court gave and caused to be entered judgment for tbe plaintiffs, from which judgment tbis appeal is taken.

The only error assigned by appellants is that tbe court “erred in overruling defendants! motion for a continuance of tbe trial of said cause on the grounds of said motion being based on tbe affidavit of Isaac Morehouse.” There is not anything in the record to show! that any motion for a continuance was made, beard, or determined by tbe court. It does not appear that tbe court ever made any order continuing or refusing to continue tbe said cause. Therefore tbe judgment must be affirmed.

Affirmed.


author: MB. JUSTICE MILBUBN

text:
    MEERILL, Respondent, v. MILLER, Appellant.
    (No. 1,489.)
    (Submitted March 18, 1903.
    Decided May 4, 1903.)

      Pleading — Complaint—Allegation of Equity — Amendment— Trial — Findings • — • Decree — Accounting —■ Appeal — Correction of Error by Trial Court — Patents—Suit for Com veyahce — Jurisdiction of State Court.

    1. A suit to obtain a conveyance of an alleged interest in an invention, to enjoin defendant from disposing of plaintiff’s interest therein, and to compel defendant to account for sums received by him for a sale to a third party of an interest therein' — the sole issue being whether defendant had sold an interest in the machine to plaintiff — was not a suit arising under the patent laws, and the state court had jurisdiction thereof.
    2. A suit was brought to obtain a conveyance of an alleged interest in an invention, and to enjoin defendant from disposing thereof to a third party, based on an agreement to render mutual assistance in obtaining the patent. Plaintiff had procufed loans of money in aid of the project, and negotiated a sale of an interest in the machine, the proceeds of which he and defendant agreed to use-in taking the machine to the Klondike and operating it. Defendant had violated the agreement, and refused to assign plaintiff any interest in the machine, and threatened to sell the same to a third party, and converted the money procured by the sale negotiated by plaintiff to his own use. Held, it was not necessary for plaintiff to allege an offer to pay a proportionate part of the expense of applying for a patent in defendant’s name.
    3. where a complaint praying an accounting contained no allegation that the parties were partners, and there was no evidence to that effect, or that there were any profits trom the project undertaken by them — the implication from the complaint being that there were none — it was error to decree an accounting and judgment for plaintiff’s interest in the profits.
    4. An assignment that the court erred in a finding will not be considered on appeal, where the court amended its finding, and there was no assignment that the amended finding was erroneous.
    5. It is not error for the trial court, at the time it heard and determined a motion for a new trial, on discovery that it had inadvertently and through obvious mistake made an error in favor of plaintiff in a conclusion of law, to amend the same with plaintiff’s consent.
    6. It was not error for the court to permit an amendment to the complaint, after denial of a motion for nonsuit on plaintiff’s evidence and before, judgment, where no hardship or surprise to defendant was shown, and where no change of the issue resulted.

      Appeal from District Court, Lewis and Clarice County; S. H. Mclntire, Judge.

      ActioN by Frank Merrill against Louis E. Miller. From a judgment for plaintiff, and an order denying a new trial, defendant appeals.
    Modified.
    Messrs. Glayberg & Gunn, for Appellant.
    In view of the allegations of the complaint, the opening statement of the attorney for the plaintiff to the jury, and the evidence introduced, the proposition that the plaintiff and defendant were joint inventors cannot be disputed. (Ecaubert v. Appleton, 61 Fed. 917-922; Seymour v. Osborne, 11 Wall. 552; Lamsonr. Martin,, 35 N. E. 78; Washburn v. Gould, 3 Story, 122; Gaboon v. Ring, 1 Cliff. 612.)
    As the defendant and the plaintiff are joint inventors, and it is alleged and-pjroven that the defendant has made an application for a patent in his own name, any patent issued on such application would be absolutely void. (Slemmer’s Appeal, 98 Am. Dec. 248; Kennedy v. Hazelton, 128 IT. S. 667; Walker on Patente (3d Ed.), See. 50; IT. S. Rev. Statutes, Sec. 4892.)
    As the patent to be issued on such application will be void under the showing made by the plaintiff, the court, will not declare the defendant a trustee for the plaintiff of an interest in such patent, or direct the defendant to convey such interest. (Kennedy v. Ilazelton, 128 IT. S. 667; Slemmers Appeal, 98 Am. Dec. 248.) :
    As tliei complaint was based upon the theory that the plaintiff and defendant were joint inventors, it was necessary for the court, in order toi grant the relief demanded, to, determine the question of whether or not the plaintiff and the defendant were joint inventors. Under such circumstances, the court had no jurisdiction of the case, as the case was, one arising under the patent laws of the Dnited States over which the circuit courts of the United States are given exclusive jurisdiction. (Slem-mer’s Appeal, 98 Am. Dec. 248; U. S. Rev. Statutes, Sec. 711.)
    The finding that the plaintiff is entitled to an accounting of the profits made by the defendant out of the machine and in-venation, and to a judgment for an interest therein is unauthorized. It is admitted that the defendant was tbe owner of an interest in tbe machine, invention, and patent which may be issued therefor. Under these circumstances he cannot be called upon to account {Dewitt v. Blmira Mfg. Go., 66 N. T. 459 ; Vose v. Singer, 4 Allen, 226.)
    Where there is an error in a finding of fact or conclusion of law it can only be corrected after judgment by granting a new trial. {ILaivxhurst v. Rathgeb (Gal.), 51 Pac. 846; Los Ane-góles Co. v. Lanhershim (Gal.), 35 Pac. 153; Wunderlin v. Gadogan, 15 Gal. 617; Brady v. Bwrlce, 90- Gal. 1; Smith v. Taylor, 82 Cal. 533; Pico v. Sepulveda, 66 Cal. 336; Bate v. Miller, 63 Gal. 233; Condeev. Barton, 62 Gal. 1.)
    The court erred in permitting the plaintiff to amend the complaint. {Neivell v. Meyendorff, 9 Mont. 254; 1 Bncy. of PI. & Pr. Sec. 548, and cases cited.)

      Mr. R. R. Purcell, and Mr. T. J. Walsh, for Bespondent.
   MB. JUSTICE MILBUBN

delivered the opinion of the court.

This is an appeal from the judgment, and from an order denying defendant’s motion for a neiw trial. The complaint, before amendment, alleged that the plaintiff and the defendant on the 1st day of October, 1897, “agreed that they would assist each other in the develc|ppnent of an idea” for the construction of a machine to thaw frozen placer ground, and that, no- such machino having been invented theretofore, they would apply for, and procure to be issued to them, letters patent from the United States- for the invention, and that they should -each, own an undivided one-half interest in the machine and the patent; that, in accordance -with the agreement, they forthwith proceeded to- “develop the said idea” and construct a working model, and in so doing the plaintiff rendered valuable assistance-, and procured parties to advance money to aid them; that about the 20th day of January, 1898, the model having been completed by the joint efforts of the parties hereto-, the defendant made application to the government for a patent; that his application for such patent was pending' at the time of the commencement of the suit; that the invention was very valuable and new, and the principie involved novel; that the capacity of the machine and its usefulness had never been determined, and that it had no determined value; that it was difficult, if not quite impossible, to determine the actual value thereof ; that the plaintiff procured certain parties to advance sums of money for the purposes aforesaid, and, the patent having been applied for, the parties being desirous of raising additional funds to pay those theretofore advanced and to take the machine to- the Klondike country, the plaintiff, acting under his original agreement with the defendant, negotiated the sale of an undivided oneffourth interest in the invention and machine to one William Tamkin; who paid toi the defendant $500 for such interest; that it was agreed between the said Tamkin and the plaintiff that with part of the said $500 a boiler should be purchased for the purpose of operating the machine, and that Tamkin should, if the machine proved a success, advance, if necessary, $50,000 for the purpose of building similar machinery and operating the same; that the parties agreed upon the payment of the said $500 that they should both go- to the Klondike country and operate the machine jointly, and that the plaintiff and the defendant should 'use the balance of that sum for the purpose of taking themselves and the machinery to said country; that the defendant converted the $500' to his own use, and, having taken the- machinery to the city of Seattle, was at the time of the commencement of the suit about to-take the same to- the Klondike country; and that the defendant had refused, and always refused, to assign and transfer to the plaintiff any interest in the machine, invention, or patent which) is to be issued, and denied that the plaintiff had any right or interest in the invention or machine. Plaintiff further averred that the defendant threatened to sell and dispose of the entire remaining three-fourths interest in-the said machine, invention, and patent to be issued thereon. The defendant answered before amendment of the complaint, and denied all the material allegations' of the complaint, except that be admitted the application for the patent, and that the invention wras new andi the principle novel, and that he had received the sum‘of $500, and used) the same for his own benefit, but denied any wrongful conversion thereof. He further admitted that he refused to convey to the plaintiff any interest in the invention, machine, or. patent, and declared that plaintiff never had any right, title, or interest in the machine, invention, or patent; denied that he was then threatening ton sell the property, or any of it, but said that he had already done so before the commencement of the action.

Evidence having been introduced in support, of the complaint, the defendant moved the court for an order of nonsuit, which was denied. The defendant excepted to' this ruling, and stood upon his motion for a nonsuit; stating to. the court that he did not desire to introduce any testimony, and consenting that the jury might be discharged. The plaintiff also: consenting, the cause was tried by the court without a jury. Thereafter, but before the court made any findings or conclusions in the premises, the plaintiff moved to amend his comjpjlaint by inserting after* the phrase, “development of an idea,” the sentence, “which had been conceived by the defendant, who' was n machinist;” and by modifying the sentence, “they would apply for and procure to be issued to' them letters patent,” so. that it would read, “they) would procure to ba issued letters patent;” and by inserting after the word “defendant,” in a certain paragraph, the sentence, “who was the sole inventor of the same,” referring to the “model machine” alleged by plaintiff to have been “completed and constructed by the joint and united efforts of the parties hereto.” These amendments were made by leave of court; the defendant duly excepting, and saving an exception to the order of the court granting such leave. The record does not show the ground of objection. Plaintiff prayed judgment that the defendant be enjoined from disposing of any interest in the machine, invention, or patent belonging to plaintiff; that the court decree that the defendant held an undivided three-eighths interest in the machine and' invention, in trust for’ the plaintiff; that the plaintiff had such an interest in the machine, invention, and any patent which may be issued; that the defendant be required to execute a proper conveyance; that defendant be required to account to the plaintiff for all sums received from T'amkin; and that the plaintiff have judgment for such an amount of the moneys so received as might be just.

No amendment to the answer was made or suggested. After the amendments to the complaint were made, the court made findings of fact and conclusions of law, condensed by us as follows: That on or about the 1st of October, 1897, the parties agreed that they would assist each other in the development of an idea for the construction of said machine; that, the machine being constructed, they would procure letters patent to be issued, and that each should own an undivided one-half interest in the machine, invention and patent; that the said idea was conceived by the defendant, and, the agreement having been entered into', the parties proceeded to construct thei model expressing the idea conceived by the defendant; that the defendant was a machinist, and the plaintiff w!as not, but that he aided the plaintiff (defendant) in the construction of said machine and in putting it into operation, and procured parties to advance money so that the work could be carried on, and in all respects carried out his agreement with the defendant; that “the defendant, being the sole inventor of the said machine, has made application to the government of the United States for a patent for the same, and that his application for patent was pending at the time of the commencement of this action;” that the defendant procured the sale of a one-fourth interest to one William T'amkin for the sum of $500; which was paid to the defendant, if being agreed between the parties that “the said sum of $500’ should be used in constructing a boiler to operate the said machine, and the re1-mainder used to transport the same and the said machine and the parties hereto to the Klondike country, where they should operate the said machine;” that the defendant converted the saidi $500' to bis own use, and took tbe machine to Seattle, where be asserts be disposed of all or part of bis interest in tbe same, and, being about tioi take tbe same to tbe Klondike country, and having made other arrangements, be returned to T'amkin the money obtained from him, and took from him’ a reconveyance Of tbe interest formerly transferred to T'amkin. The court further found that tbe defendant denies that tbe plaintiff has any interest in the machine, invention, or patent; that tbe averments made by tbe defendant in bis affirmative defense are untrue; that tbe plaintiff is tbe owner of an undivided one-half interest in tbe machine, and that tbe defendant holds any patent which may have been issued, and will bold any patent which may be issued, in trust for tbe plaintiff and himself, “each in equal parts;” that tbe plaintiff is entitled to a conveyance from tbe defendant for an undivided one-half interest in tbe invention, and in any patent which has or may be issued; that the plaintiff is entitled to an accounting from the defendant for all profits which may have been made out of said invention, and to a judgment for one-half of tbe same. Judgment was entered accordingly. A motion for new trial was duly made, and, upon a bearing thereof, was denied. At tbe time when tbe motion for a new trial was denied, tbe court, having discovered an error, apparently inadvertently made, in its findings and in tbe judgment, made the following order: “In this cause, tbe motion for new trial herein having been heretofore argued before, submitted to, and by court taken under advisement, court this day ordered that unless the plaintiff agree to the modification of tbe judgment as indicated in tbe opinion filed, motion for new trial would be granted. Whereupon counsel fox plaintiff agreed that tbe judgment might be amended accordingly.” Tbe court bad found that a one-fourth interest bad been sold to one T'amkin by tbe parties to this suit, and afterwards bought from Tamkin by tbe defendant; and therefore tbe court, on reflection, concluded that it should have found that tbe plaintiff owned only a three-eighths, and not a one-half, interest in tbe invention, ma-cbine and patent, and was only entitled to three-eighths of all profits, and judgment for one-half of the said $500.

The defendant declares in his brief that the court erred: (1) In denying defendant’s motion for a new trial, for the reasons (a) the court erredi in overruling the motion for nonsuit; (b) the court erred in finding that the defendant was the sole inventor; (a) the court erred in finding'that the plaintiff is entitled to an accounting of profits made by the defendant out of the machine and invention, and to a judgment for a onedmlf interest therein; (d) the court erred in finding that the plaintiff is entitled to a conveyance of an undivided one-half interest in the machine, invention, and patent. (2) The court erred in making amended conclusions, of law. And (3) the court erred in permitting the complaint to be amended.

As to assigned error la, we do not find that the court erred in denying the motion for nonsuit. In the brief, counsel base their assignment of error as to the denial of said motion upon several grounds: (1) That the plaintiff and defendant were alleged by plaintiff, and by him proven, to be joint inventors', and that therefore the patent, if issued to their client, would be void, he having applied in his own name for the issuance theren of; (2) that as the patent to be issued under such application would be, as defendant says, void, the court could not declare the defendant a trustee for the plaintiff of any interest therein; (3) that it was necessary for the court to determine, whether or not the plaintiff and defendant were joint inventors, and that this question can only be determined in the United States courts, in that it would be a question arising under the patent laws of the United States; (4) that “he who seeks equity must do equity,” and that plaintiff does not offer to pay his share of the expenses of procuring a patent.

The first and second of these, points are sufficiently discussed infra.

We do not consider the point as to the jurisdiction of the court well taken. No question arises here under the United States patent laws. The sole question is whether or not defendant sold an interest in, tbe invention to plaintiff. If be did, such, contract of sale would be valid between tbe parties.without any written evidence thereof. One of tbe purposes of this suit is to get from tbe defendant a written conveyance of tbe alleged interest of tbe plaintiff. It isi of no- concern to tbe defendant whether the plaintiff records such conveyance in tbe propea* federal office, or not, after be obtains it. Tbea*e is no question of infringement of tbe patent or of any of tbe rights of the plaintiff by any one except by the defendant. The state court in this case is not called upon to enforce any of the patent-right laws.

As to- tbe fourth point under this bead, we need only say that under all tbe circumstances of tbe case, as pleaded, it does not seem to have been necessary for the plaintiff to have alleged an offer to pay a proportionate part of tbe expense of applying for a patent in tbe name of the defendant. This point does' not appear among the grounds of the motion for nonsuit as made to the court, and is merely stated, and not argued, in the brief.

Appellant complains and says that “tbe court erred in finding that the defendant wasi tbe sole inventor.” (lb, supra.) Without commenting on the rather anomalous position taken by the defendant in complaining of a finding that he was the sole inventor of a machine for which he alone, and in his own name, is applying for a patent, without any assignment from any one, we take up tbe question involved. Appellant says in his brief: “In view of tbe allegations of the complaint, the opening statement of tbe attorney, for the plaintiff to' the jury, and tbe evidence introduced, tbe proposition that tbe plaintiff and defendant were joint inventors cannot be disputed.” In another* part ■of his brief it is said: “In view! of all the evidence, the plaintiff and defendant were joint inventors. There is no evidence to tbe contrary.” Tbe complaint, ¿s'amended, alleges that the defendant was tbe sole inventor, and this is not denied by tbe defendant in his pleading, nor was any attempt made to amend the answer by denying it. ' It is hardly probable' that a. person who has applied for a patent in his'own name, without holding any assignment from any one else, would care to swear in a pleading that be was not the sole inventor. We do not find anything in the evidence of the plaintiff or any of his witnesses showing or tending to show that he suggested any improvement, or in any wise advanced1 any ideas which found expression in the machine, or were included in the claims of the defendant in his application for patent. It is true that the plaintiff, in his testimony, states that he assisted the defendant in developing the idea, which was apparently that of the defendant. The discussion of this point, of course, involves a consideration of alleged error No. 3, which will be considered infra.

As to specification lc, supra, we are of the opinion that the court erred in finding that the plaintiff is entitled to an accounting of profits, and to a judgment for any interest therein. We. note, of course, that the assignment refers only to the ohe-half interest mentioned in the judgment and findings before the same were amended; but, as to this point, it may be considered as governing the whole question as to profits, lb need only be said that we do not find any allegation in the complaint that the parties were partners, and, further, there is nothing-in the complaint or in the evidence to show that there were any profits. On the other hand, the complaint implies that there were none. We do not think that there is sufficient stated in the complaint to warrant any decree ordering an accounting for profits.

The alleged error Id, ton-wit, that the court erred in finding that the plaintiff was entitled to a conveyance of an undivided one-half interest in the machine, invention, and patent, need not be considered, for the reason that the court amended its findings, and found that the plaintiff was entitled to a conveyance of a three-^eighths interest, as alleged in the amended complaint. It is not assigned that the court erred in finding any interest other than one-half, except sol far as the second assignment of error, to-wit, that the court erred in making amended conclusions of law, covers the point.

Did the court err in making amended conclusions of law, as claimed in assignment No. 2 ? We thirds not. It appears from the record that, at the time the court heard and determined the motion for a new trial, it discovered that it had inadvertently, and through obvious mistake, found that the plaintiff was entitled to a one-half .interest, instead of a threei-eighths interest, in the property referred to. It had overlooked the fact that a two-eighths interest had been sold by the parties to Taonkin, leaving only a three-eighths interest in the plaintiff. The court immediately, at the time above referred to, declared' its intention to grant a new trial unless the plaintiff would consent to the amendment, and, the plaintiff so< consenting, the motion for a new trial was denied, and the amendment made to show the facts. We doi not see any error in the action of the court. Appellant has not cited any authority supporting his. contention that the court erred in this behalf. In Wunderlin v. Cadogan, 75 Cal. 617, 17 Pac. 713 (at page 618, 75 Cal., and page 714, 17 Pac.), cited by appellant, the court, it is true, in passing upon the case before it, said: “The remedy for1 erroneous findings of fact is by motion for new trial. And the relief to be given upon, such motion is the awarding of a new trial, to be had in regular course. It is not proper for the court, upon a motion of that kind, to immediately render a contrary decision. These rules rest upon the theory that the modes' in which a decision may be reviewed are prescribed by statute, and that the court has no power to substitute other modesi in their place.” But the court, proceeding, remarked further: “The rules', however, do not prevent the court from correcting mere misprisions and orders improvidently and unintentionally entered.” In Hawxhurst v. Rathgeb, 119 Cal. 531, 51 Pac. 846, 63 Am. St. Rep. 142, also cited by appellant, the supreme court, referring to the fact that the lower court had found that the defendant had not executed a certain power of attorney, and after judgment had found to the contrary, held that “after findings have been‘filed, and judgment entered thereon, there is but one method by which those findings can be competently changed or modified, except perhaps, in respect of a mere clerical error or misprision.” Misprision, is the act of misprising; misapprehension; misconception ; mistake. The complaint in this case states, in effect, that the plaintiff w.as legal owner with the defendant in the property, and, as we have stated above, the two parties sold and conveyed a two-eighths interest to one Tamkin. The evidence tends to show this sale to Tamkin, which is admitted in the answer, although, of course, the defendant denies that plaintiff had any title in the property, or that plaintiff procured such sale to be made. The error of the court in making the finding that the plaintiff was entitled1 to a one-half interest in the property certainly was made through a misapprehension and mistake, obvious on the face of the record then before the court, and known to all the parties present at the time on the hearing of the motion for a new trial. We are not aware of any holding by this court which would require the lower court to refuse to make the correction of so apparent an error, and to' put the parties to the trouble and expense of a new trial, instead of correcting its conclusions of law, as was done. Further, it is well to note the fact that in the amended findings the court declared that the plaintiff was entitled to a less interest in the property than it had found to- be his in the finding before it was amended.

Assigned error No. 3 is that the court erred in permitting the complaint to be amended. We have stated supra what amendments were made. Amendments to pleadings should always be allowed, in the discretion- of the court and in the interest of justice, upon such terms as may he just, and this may be done even after verdict and judgment, to make the pleadings, correspond with the proof. (Montana Ore Purchasing Co. v. Boston & Montana Con. G. & S. Mining Co., 27 Mont. at page 316, 70 Pac. at page 1123, and cases cited.) In this case the amendments appear to have been made before judgment, after the motion for a nonsuit had been denied. It does not appear that any hardship was worked to the defendant, or that he was in any wise surprised by the action of the court in allowing the amendments. The one question in the ease is whether the defendant was at tbe time of tbe commencement of tbe action trustee for tbe plaintiff .for a tbree-eigbtbs interest in tbe invention and patent rights, and one-balf interest in tbe said $500, under an agreement between tbe parties. Tbe amendment of wbicb tbe defendant seriously complains was tbat by which tbe averment of tbe original complaint, to tbe effect tbat tbe parties agreed- “that they would apply for and procure to be issued to them letters patent,” was modified to read “that they would apply for and procure to be issued letters patent.” The alleged agreement as to tbe ownersbipi was not changed, in our opinion, by tbe alteration made. Tbe alleged object was to get a patent for tbe use of tbe parties-, and, if counsel bad mistakenly put into tbe complaint an averment tbat “they” would apply for and procure to be issued to them letters patent, whereas tbe unlearned plaintiff bad understood that tbe defendant was to procure tbe patent in bis own name for tbe use of both, be assuming tbat tbe patent thus was to be issued to them — it not being unusual for persons engaged in business together to have all or part of tbe property of tbe concern in tbe name of one of tbe parties — the amendment would not be improper. Under tbe evidence and tbe pleadings, we do not see any material or radical change, working injury to tbe defendant, in this amendment, and we do not see that tbe issue was changed.

Our attention is not called to tbe fact that tbe court decreed tbat tbe plaintiff should recover $350 of tbe defendant — said sum being one-balf of the $500, wbicb, according to tbe alleged agreement, was to- be used for a certain purpose by both parties —-whereas the court seems to have considered tbe sum! of $500 to be a trust fund held by defendant for himself and plaintiff. No error of the court in this behalf having been assigned or treated by defendant in bis brief, we do not express any opinion as to tbe decree so far as it refers to tbe said sum of $250.

Tbe decree of tbe court below is modified in accordance with tbe views expressed in this opinion as to the matter of profits, and, as thus modified, is affirmed.

ModifiedI and affirmed.


author: MR. JUSTICE! HOLLOWAY

text:
    TANEY, Respondent, v. VOLLENWEIDER, Appellant.
    (No. 1,561.)
    (Submitted May 1, 1903.
    Decided May 4, 1903.)

      Garnishment — Payment Into Court by Garnishee — Effect of Judgment — Justice of the Peace — Change of Venue — Statutory Provision — Costs.
    1. Where a garnishee paid into court, in answer to garnishment served upon her, the lull amount of her indebtedness to the defendant in the proceedings, the judgment recovered therein against him operated to fully discharge the garnishee’s indebtedness.
    2. Where defendant, on being granted a change of venue, refused to pay the accrued costs as provided by Code of Civil Procedure, Section 1484, it was the duty of the justice of the peace to proceed with the trial.

      Appeal from District Court■, Deer Lodge County; Welling Napton, Judge.

    Action by P. S. T'aney against Mary Vollenweider. Erom a judgment for plaintiff, and from, an order denying a new trial, defendant appeals.
    Reversed.

      Messrs. Duffy & Casey, for Appellant.
    Under Section 900, C'ode of Givil„Procedure, it was made the duty of this appellant to pay the money into the justice’s court as soon as she was served with garnishee process; it was also, under Section 1682, C'ode of Civil Procedure, the duty of the justice of the peace to receive the money. The garnishee and appellant in this action, should be protected from' double liability. (Drake on Attachment, 6th E'd., Secs. 693, 699, 701, 706 and 710; Marden v. Wheelock, 1 Mont. 52; Dole v. Bout-well, 1 Allen, 286; Barrow v. West, 23' Pick. 270'; Foster v. Jones, 15 Mass. 185; Holmes v. Bemsen, 4 Johns. Ch. 46; B. & O. By. Co>. v. May, 25 Ohio St. 347; Johnson v. Carey, 2 Cal. 34; Sessions v. Stephens, 46 Am. D'ec. -339.)

      Messrs. Walsh <& James, for Respondent
    Tbe justice of tbe peace acted witbout jurisdiction in entering judgment, and the same is absolutely void. (State ex rel. Kenr ■ yon v. Laurandeau, 53 Pac. 536.)
   MR. JUSTICE! HOLLOWAY

delivered tbe opinion of tbe court

Tbis action was commenced in tbe district court by tbe plaintiff to recover tbe sum of $45 and to establish and foreclose a mechanic’s- lien upon certain property in Anaconda, Montana. Tbe complaint is in the usual form-. Tbe denials in tbe answer raise no material issues. As an affirmative defense tbe defendant alleges tbat after she became indebted to tbis plaintiff, and before tbe commencement of tbis action, sbe was served with a writ of attachment and notice of garnishment in an action in the justice of tbe peace court of O. H. Williams, a justice of tbe peace of Anaconda township*, wherein Frank Hall was plaintiff and tbis plaintiff, P. S'. Taney, was defendant; tbat a judgment was recovered by Hall against T'aney for $45.50; that an execution was issued tbereon, a copy of wbicb, with notice of garnishment, was also served on tbis defendant; and tbat by reason of these facts, and tbe demand of tbe constable, she paid into that court tbe sum’ of $45, being tbe whole of her indebtedness to this plaintiff. A reply was filed, wbicb assumes to put in issue the allegations of this affirmative defense. Upon the trial the defendant admitted that tbe plaintiff bad performed tbe work for her as alleged in bis complaint. Tbe plaintiff then offered in evidence tbe record of tbe county clerk’s office showing tbe filing of bis lien, and then rested. The defendant offered in evidence tbe records of tbe justice of the peace court showing the proceedings had in tbe case of Hall against Taney from tbe commencement of tbe action to the entry of judgment, all substantially as alleged in her answer. Sbe also introduced in evidence the receipt for the money paid into* court by her. No rebuttal testimony was offered whatever, and upon this record tbe district court found in favor of the plaintiff; and entered a money judgment for $45 and for costs, amounting to $6, and for $50' attorney’s fees. No finding whatever was made with reference to the lien claimed by the plaintiff, and no provision is made in the judgment for the foreclosure of such lien. From this judgment, and an order denying defendant’s motion for a new trial, she appeals.

If, at the conclusion of plaintiff’s testimony, no further evidence had been offered, a prima facie case would have been made out in plaintiff’s favor for the amount of his claim. However, the defendant offered in evidence record proof of the fact that she had paid into court, in answer to garnishment served upon her, $45, the full amount of her indebtedness to plaintiff; that such notice of garnishment had been served upon her before the commencement of this present action; and that a judgment was recovered in the justice of the peace1 court against this plaintiff. Nlo attempt was made to dispute these facts, and upon this showing we deem them proved. This defendant having paid into the justice of the peace court the full amount of her indebtedness to this plaintiff upon the garnishment served upon her, and a judgment having been'obtained against this plaintiff in that court, that judgment operated to fully discharge the indebtedness from this defendant to the plaintiff herein, and she was, therefore, entitled to a judgment in her favor for costs. We do not understand how the district court can enter up a judgment, including attorney’s fees, upon an open account for work and labor done and for material furnished; in the absence of any finding that (plaintiff isi entitled to a lien (assuming that, in the event a lien was established, an attorney’s fee might be recovered as a part of the costs). It appears from the record of the justice of the peace court that after defendant, Taney, appeared in that action, he moved for a change of venue, which was granted upbn the condition that he pay, the accrued costs, as provided by Section 1484 of the Code of Civil Procedure. This he refused to do; and the justice proceeded to try the cause, and entered judgment against him. It is now urged here that be did so without jurisdiction, and that tbe judgment was, therefore, void. This was doubtless' the theory upon which the disc trict court proceeded in this causa in finding, for the plaintiff. It would be an anomalous position, indeed, for a party to ast-sume to say that he moved for a change of venuei, and refused to pay the fees required as a condition precedent to the justice’s transmitting the [papers to another court, and then insist that the court of primary jurisdiction could not act further in the premises. We do not understand that a party by his wrongful act can secure such an advantageous position. Upon the refusal of Taney to pay the accrued costs as required by law, it was the duty of the justice of the peace to proceed with the trial. How1ever, we cannot say that the testimony" introduced upon the trial of this cause was all that might be produced upon a new trial thereof. It is therefore ordered that the'judgment and order appealed from be reversed, with directions to- the district court to grant the defendant herein a new trial.

Reversed and remanded.


author: MR. COMMISSIONER CLAYBERG-

text:
    MELTON, Respondent, v. MARTIN, Administrator, Appellant.
    (No. 1,551.)
    (Submitted April 28, 1903.
    Decided May 4, 1903.)

      Executors and Administrators — Claims Against Estate — Time for Presentment.

    under the direct provisions of Code of Civil Procedure, Section 2603, all claims against the estate of a decedent must be presented within the time limited in the administrtor’s notice to creditors, or they are barred forever, except when it appears by the affidavit of the claimant, to the satisfaction of the court, that he had no notice, by reason of being out of the state.

      Appeal from District Court, Gallatin Countyj F. K. Armstrong, Judge.

    ActioN by John A. Melton against J. P. Martin, administrator of James Dartisv From a judgment for plaintiff, defendant appeals.
    [Reversed.

      Messrs. Pierce & Pierce, for Appellant.

      Mr. John A. Luce, for [Respondent.
   MR. COMMISSIONER CLAYBERG-

prepared the opinion for the court.

This is an appeal from a judgment rendered against appellant> as administrator of the estate of James Dartio, deceased, upon a claim of respondent against said estate for moneys alleged to have been paid to Dartis in his lifetime under a mistake. It appears from the complaint that ¡plaintiff presented his claim to the defendant administrator March S, 1899. The answer alleges that the first publication of notice to creditors was on February 9, 1898; that the value of the estate exceeded $10,000; and that plaintiff did not exhibit his claim, “within ten months after the date of the first publication of said notice, nor was it made to appear at any time or a.t all, by the affidavit of claimant or at all, to Hie satisfaction1 of this court or the judge thereof, that the. plaintiff had no notice of the time allowed by said notice for the presentation of claims against said estate by reason of being out of the state or otherwise.” This allegation was not denied by the replication, and therefore stands admitted. The case was tried upon an agreed statement of facts and “facts admitted by the pleadings.” The ten months allowed by law after the first publication of notice to creditors had elapsed long before the claim was presented. Under Seetion 2603, Code of Civil Procedure, all claims must be prer sented within the time limited in the notice or they are barred forever, except in cases when “it is made to appear by the affidavit of tbe claimant to the satisfaction of the court or judge that the claimant had no notice as provided in this Title, by reason' of being out of the state.” It is admitted, as above stated, that no proof was adduced which would bring this claim within the above recited exception. Plaintiff, however, attempted to excuse noncompliance with this statute on the ground that the money had been paid by mistake, and that he did not discover this mistake until after the ten months had expired. We are not satisfied from the pleadings and statement of facts that a mistake ever existed, and, if it did, that plaintiff should not have discovered its existence within the time limited in the notice by the exercise of reasonable diligence.

Counsel for respondent further seek to justify their action on the ground that deceased held the money paid as a trust fund, and therefore it was not necessary to present the claim to the .estate; but the pleadings are barren of any such suggestion, or of the further necessary suggestion that the identical money could be traced into the hands of defendant. Besides, this is not an action in equity to enforce a trust, but a suit at law1 to recover money “had and received,” and the. claim should have been presented to the administrator of the estate within ten months after the first publication of notice h> creditors'.

We are therefore of the opinion that the judgment appealed from should be reversed and remanded, and the court below 'should be directed to set aside the judgment appealed from, and enter’ judgment for the defendant for costs.

Per Curiam:. — Por the' reasons stated in the foregoing opinion, the judgment appealed from is hereby reversed, and the cause remanded to the court below, with directions to set aside the judgment appealed from, and to enter judgment for the defendant for his costs..


author: MR. COMMISSIONER 0ALLAWAY Mb. Justice MilburN:

text:
    DAYTON, Respondent, v. EWART, Appellant.
    (No. 1,535.)
    (Submitted April 11, 1903.
    Decided May 4, 1903.)

      Exemptions — Earnings of Judgment Debtor — Gold Dust from Miner s Placer Claim.

    Section 1222 (Subdivision 7), Code of Civil Procedure, exempts to a placer miner tbe gold dust taken from bis claim by bis own labor witbin thirty days next preceding a levy of execution or attachment, when be is a-poor man whose family resides in tbe state and depends for support upon bis personal labor in working bis mine, and tbe debt is not for tbe common necessaries of life.

      Appeal from Disimci Court, Ravalli County; F. Woody, Judge.

    Action by L. H. D'ayton against E. Ewart, as constable. Judgment for plaintiff, and defendant appeals.
    Affirmed.

      Mr. C. B. Calkins, for Appellant.
    Tbe legislature intended Section 1222 (Subdivision Y) for tbe iprotection of those whose labor is all tbe capital they possess ; those employed by others by the day, week, month or year, and those whose sole profit is what they get for their services. A man owning and operating! a placer mine has other capital besides the labor he individually, performs in working his claim; in such case, his mine, water ditch, tools and appliances, constitute his capital whereby he derives his profit in the occupation which he follows. If a placer miner can claim exempt the gold dust which he washes from his mine for a period of thirty days, then one engaged in any occupation could invoke the protection of this statute, the farmer, merchant, professional man, banker and contractor. (Shelly v. Smith, 591 Iowa, 453: Ueebner v. Chave, 5 Pa. St. 115; Smith v. Brooke, 49 Pa. St. 14Y.)

      Mr. 8. 0. Murray, and Mr. L. J. Kna/pp, for Respondent.
   MR. COMMISSIONER 0ALLAWAY

prepared tbe opinion for tbe court.

Respondent commenced this action in tbe district court of Ravalli county, Montana, to recover of appellant tbe value of certain gold dust. Appellant joined issue by answer. Tbe parties then submitted tbe case to' tbe court upon an agreed statement of facts. Erom this statement it appears that respondent is, and lias been for several years last past, a resident of this state, and tbe bead of a family residing in this state; that lie is a miner, having tbe possessory title to a placer claim, wbicb be bas been working with bis own water ditcb, flume, pipe», tools, and other appliances; that be is a poor man, and, that he and bis family depend for support upon what be can get from working this placer mine; that on June 30, 1899, in an action in wbicb tbe firm of May Bros', were plaintiffs and respondent was defendant, tbe appellant, who was then a constable of Stevens township1, in said county, by virtue of a writ of attachment issued in said action, levied upon and took into bis custody gold dust of tbe value of $133.20, tbe property of respondent, and wbicb bad been mined by him within thirty days next preceding tbe levy of tbe attachment. On July 5, 1899, judgment by default was entered for tbe plaintiffs, execution was issued thereon, and tbe gold dust sold thereunder. Said judgment was obtained upon a p¡romissory note executed by appellant to May Bros, for cash loaned to him.

Brior to tbe time of obtaining said judgment, and after tbe gold dust bad been levied upon, respondent filed with appellant bis affidavit, claiming tbe gold dust as exempt from attachment or execution, as earnings for bis personal services rendered within thirty days next preceding tbe levy of tbe attachment. Upon appellant’s refusal to release tbe same, respondent on July 24, 1899, commenced this suit. Upon tbe statement of facts submitted, tbe court entered judgment for respondent, and from such judgment this appeal is prosecuted.

The question for decision by this court is whether, under the facts presented, the respondent can successfully claim the gold dust mentioned as exempt from attachment and execution.

We must loot to Section 1222, Code of Civil Procedure, for its solution. Subdivision 7 of this: section provides that there shall be exempt from execution “the earnings! of the judgment debtor for his personal services rendered at any time within thirty days next preceding the levy of execution or attachment, when it appears by the debtor’s affidavit, or otherwise, that such earnings are necessary for the use of his family residing in this state, supported in whole or in part by his labor; but where debts are incurred by any such person, or his wife or family, for the common necessaries of life; the one-half of such earnings above mentioned, are, nevertheless, subject to execution, garnishment, or attachment to satisfy debts so incurred.”

At first glance it might seem that the word “earnings of the judgment debtor for his personal services rendered” contemplate the reward paid to one for services rendered another. A technical construction of the statute would compel the adoption of such a meaning, Such construction would be at variance with the spirit of the constitution and laws of the state. Section 4, Article XIX, of the Constitution, provides that “the legislative assembly shall enact liberal homestead and exemption laws,” and this court has held that statutes enacted in pursuance of this mandate should be liberally construed. (Ferguson v. Speith, 13 Mont. 487, 34 Pac. 1020, 40 Am. St. Rep. 459.)

The' courts of the different states have encountered considerable difficulty in construing exemption statutes, but all agree that such statutes are remedial, and must be construed with liberality. One difficulty seems to have been in arriving at the true meaning of the words “earnings,” “wages,” “salary,” and the like. The word “earn” means “to gain as a just return or recompense by service, labor, or exertion.” “Earnings” is “that which is earned.” (See the Standard, Century, and Webster’s Dictionaries.)

In passing upon an exemption statute; the supreme court of Massachusetts said: “We are of opinion that the word 'earnings’ was used for the purpose of embracing a, larger class of credits than would be included in the more common term 'wages.’ ” (Jenks v. Dyer, 102 Mass. 235.) This interpretation has been generally adopted. (See Bouvier’s, Anderson’s, and Black’s Law Dictionaries.)

Mr. Freeman, in his work on Executions; Section 234, says: “Between the terms 'wages’ and 'salary’ there is no material difference when they are applied to the subject here under consideration. The former term is commonly used to denote the compensation of laborers, and the latter that of other persons of more permanent employment and more elevated stations. The term 'earnings’ is more comprehensive than either of the others. It implies, as do they, that the sum duei shall be claimed for the personal services of the claimant, and that it shall not include, to any substantial extent, recompense for materials furnished ; but earnings need not result from work done under the direction of another, nor from1 manual labor.”

Nor do the words “personal services rendered” necessarily contemplate that the services be rendered another. They may, in proper cases, mean the services which one renders to' himself. The word “service” has different meanings. It may mean “an advantage conferred; that which promotes' interest or happiness; benefit.” (See Webster’s and Standard Dictionaries.) One confers an advantage upon himself by striving for his own benefit, and looks upon his labor done in his own behalf as that which particularly furthers his interest and happiness. The word “render” sometimes means to “bestow or provide; furnish; to give in answer to requirement of duty or demand.” (Standard Dictionary.) One provides for himself and family, and does so in answer to one of the highest requirements of duty.

In reading Section 1222, it appears that a miner has exempt from execution “his cabin or dwelling, sluices and pipes, hose, windlass, derricks, cars, pumps, tools, implements and appliances necessary for carrying on any kind of mining operations, not exceeding in value tbe aggregate sum; of one thousand dollars,” and so forth. Now, it may be inquired, can it be that the statute exempts all these, and yet does not exempt the reward won by their use, when necessary for the support of the miner’s family residing, in this state ? or exempts to him his tools, and in the same breath deprives him of the fruits of his toil therewith, allowing his family to go in want ? Such a construction is clearly unreasonable, and demonstrates to us that, had the legislature intended to restrict the exemption granted, the word “wages” would have been employed, instead of the broader word “earnitígs.”

Again, can it be that the legislative assembly desired to restrict the exemption'to those only who are the servants of others ? We think not. It has been the policy of our government since its beginning to foster that independence which follows a reliance upon one’s own resources. The courts of New York, in construing a similar exemption statute, have arrived at the same conclusion to which we have come. (See McSkimin v. Knowlton (Com. Pl.), 14 N. Y. Supp. 283, and cases cited.)

Testing, the statute under consideration by the rules of construction provided by Section 4660' of the Civil Code, we believe we correctly declare the legislative intention.

It must be remembered that in the case at bar it is conceded that the respondent is a poor man, whose family depends for support upon his personal services in working his placer mine; that the sum attached is' necessary for the use of his family residing in this state; that the gold dust was mined by respondent within thirty days next preceding, the levy of attachment; and that the suit brought against him was not upon a debt incurred by him for the common necessaries of life. The court below, therefore, was correct in entering judgment for respondent.

But, while a liberal construction of the exemption’ laws should always be encouraged, it will be readily perceived that a too liberal construction thereof might lead to many abuses not contemplated by the lawmaking power, and we deem- it proper to say that this case is determined and decided with reference to the facts presented only. “Each case of this character must rest upon its own facts existing at the time in question.” (Cushing v. Quigley, 11 Mont. 577, 29 Pac. 337.)

In our opinion, the judgment should be affirmed.

Per GuexaM. — For the reasons stated in the foregoing opin> ion, the judgment is affirmed.

Mb. Justice MilburN:

I dissent. The part of Section 1222 (Subsection 7) of the Code of Civil Procedure, under which the exemption is claimed, declares as exempt from levy “the earnings of the judgment debtor for his personal services rendered at any time within thirty days next preceding the levy of the execution or attachment^ when it appears * * * that such earnings are necessary for the use of his family * * * supported in whole or in part by his labor. * * *” I cannot understand that this section expresses or implies an intention on the part of the legislature to protect income from a private and independent business from! levy, if such income be not for services rendered others. The words “earnings * * * for his personal services rendered” do not suggest to me any such idea. (Bouvier, Law Dict.; 22 Am. & Eng. Ency. Law (Ed. 1893), 106.) If the legislature had intended to add to the exemptions of a placer miner the gold which he might get into his sluice boxes, it would have been very easy for it to say so. But it did not. The legislature gives to the persons mentioned in the first six subdivisions of Section' 1222 certain exemptions, and then expressly declares that in addition to those exemptions the debtor may have also the exemption provided, in Subsection 7 — that is to say, that any one of the persons whose particular property is made exempt under any one of the six subdivisions referred to may also render personal services to others and have the earnings therefor exempt. The case of McSkimin v. Knowlton (Com. Pl.), 14 N. Y. Supp. 283, relied upon in the commissioner’s opinion, sufra, is not, in my opinion, a wellconsidered case. I cannot find anything in it which supports tbe proposition' that placer gold, taken out of tbe ground by a miner by and for bimself, is bis earnings for personal services rendered. Tbe learned justice in that case states tbat bis first impression was tbe same wbieb I entertain, but be states tbat upon examination be found tbat “tbe courts bave construed tbe term 'personal service’ to include earnings derived from a business, where tbe services are tbe chief factor in it.” He seems to bave bad some difficulty in defining tbe words “personal service.” So far as I can understand from what tbe justice says of them, tbe cases; cited by him appear to have been cases in which services were rendered by the debtor to others, and, therefore, are noiti in point as sustaining tbe conclusion at which be finally arrived.