author: MB. CHIEF JUSTICE! BBANT’LY

text:
    HOPKINS et al., Appellants, v. BUTTE COPPER COMPANY, Respondent.
    (No. 1,773.)
    (Submitted January 16, 1904.
    Decided January 23, 1904.)

      Mines — Adverse Claims — Actions — Commencement—Allegation — Pleading—Dismissal — Demurrer — Pile Marks — Evidence — Jurisdiction.
    1. In order to state a cause of action in an adverse suit under Section 2326, U. S. Revised Statutes, the complaint must allege that the adverse claim has been filed, within the time allowed, in the proper land office, and that the action has been commenced within the thirty days allowed for that purpose.
    2. Failure of a complaint, in an adverse suit under Section 2326, U. S. Revised Statutes, to allege that the suit was commenced within the thirty days allowed for that purpose, is not a jurisdictional defect, but renders the pleading open to general demurrer.
    3. Since the state courts derive their powers from the state constitution and statutes, the federal government can neither increase nor diminish their powers to entertain and determine controversies between citizens of the state.
    4. In an action to determine an adverse claim to a mining location, the file mark on the complaint, not being- a part of the pleading, was not conclusive evidence of the date it was filed for the purpose of showing that it was not filed within thirty days from the filing of the adverse claim, as required by Revised Statutes U. S. Section 2326.

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

    ActioN by John Hopkins and another against tbe Bntte Copper Company. From a judgment in favor of defendant, plaintiffs appeal.
    Beversed.

      Messrs. Forbis & Mattison, and Mr. M. J. Cavanaugh, for Appellants.
   MB. CHIEF JUSTICE! BBANT’LY

delivered tbe opinion , of tbe court.

On October 11, 1900, tbe defendant, claiming to be tbe owner of tbe Powbatan quartz lode mining claim, -instituted proceedings for patent tberefor in tbe United States land office at Helena. Tbe plaintiffs, having filed in that office their adverse claim to a portion of tbe ground covered by tbe Powbatan location under a location called tbe “Copper Blossom,” brought this action in pursuance of Section 2326 of tbe Bevised Statutes of tbe United States (U. S. Comp-. St. 1901, p. 1430) to have determined tbe right of possession to- the portion of tbe ground in conofiict.

Tbe original complaint, besides tbe necessary averments as to right of possession in plaintiffs, alleged that tbe adverse claim bad been filed and allowed within sixty days after tbe first publication of tbe notice, and that tbe action bad been commenced within thirty days after the stay granted thereunder. The clerk’s filing mark upon the complaint indicated that it had been filed on the thirty-first day after stay granted. The defendant’s answer put in issue all the allegations of the complaint, and then, after setting forth affirmatively the nature of its claim, demanded judgment that it be declared entitled to the possession of the ground-in conflict. TJpon these affirmative allegations there was issue by replication. The issues were made up> on February 12, 1901. On November 13, 1901, the defendant moved the court to dismiss the action on the ground that it had been brought to determine an adverse claim to a patent, and that, it appearing that it had not been commenced ■within thirty days after the filing of the adverse claim in the land office, the court had no> jurisdiction to proceed to determine it. While this motion was pending, the plaintiffs filed an amended complaint. This pleading it is not necessary to notice further than to‘ remark that it omitted the allegation that the action had been commenced within thirty' days after the filing of the adverse claim. The motion, being’ then submitted on the original and amended complaints, was sustained, and judgment entered for the defendant. The plaintiffs have appealed. The defendant has made no appearance in this court.

It has long been the rule in this jurisdiction that, in order to state a cause of action in an adverse suit under Section 2326 of the United States Devised Statutes (U. S. Comp. St. 1901, p. 1430), it must be alleged that the adverse claim has been filed within time in the proper land office, and that the action has been commenced within thirty days, allowed for that purpose. The rule -was first' declared by the territorial supreme court in Mattingly v. Lewisohn, 8 Mont. 259, 19 Pac. 310. It doubtless grew out of the view early entertained by that court that, though the action assumed the character of ejectment or a suit to quiet title, according as the one or the other form of action was appropriate, the ultimate purpose of it was to determine which of the contestants was entitled to a patent, the final judgment in the case being determinative of this question. (Wolverton v. Nichols, 5 Mont. 89, 2 Pac. 308; s. c. on error to the Supreme Court of the United States, 119 U. S. 485, 7 Sup. Ct. 289, 30 L. Ed. 474; Garfield M. & M. Co. v. Hammer, 6 Mont. 53, 8 Pac. 153; Milligan v. Savery, 6 Mont. 129, 9 Pac. 894.) Whatever be its origin, it has been more than once recognized by this court since the decision in Mattingly v. Lewisohn, supra, as the correct rule. (McKay v. McDougal, 19 Mont. 488, 48 Pac. 988; Murray v. Polglase, 23 Mont. 401, 59 Pac. 439.) In McKay v. McDougal, after reference to the rule as stated in Mattingly v. Lewisohn, supra, is was said: “As applied to actions of the class to- which Mattingly v. Leiv-isolm belongs, we believe that to be correct, in order that it may appear that the court had jurisdiction to proceed with the case; but such averments of fact have nothing directly to do with the title or right of possession to the property involved, and are not probative facts of the ownership- of the plaintiff.” The use of the word “jurisdiction” in this passage is unfortunate, in that it implies that the jurisdiction in the state courts to try adverse suits is derived from the United States statute. This is not true, because the federal government can neither increase nor diminish the power of state courts to- entertain and determine controversies between citizens of the state. These courts derive their powers from the constitution and statutes enacted in pursuance thereof, and administer them without reference to the duty cast upon the adverse claimant under the federal statute. They may entertain suits under the state statute (Code of Civil Procedure, Sec. 1310) to determine adverse claims, without regard to the fact that proceedings for patent are pending in favor of one of the parties. In the class of actions brought under this section no question touching the right of either of the parties to- a patent from the United States government is involved, and it is only necessary for the complaint- to contain the necessary allegations of title and right of possession in the plaintiff and ouster by the defendant, or the assertion of some claim adverse to the plaintiff. Nevertheless, state courts may, as they have heretofore done, recognize the fact that in the class of cases involving the right to- patent from the United States government the judgments rendered will not be effective unless tbe action is commenced and prosecuted after the necessary steps have been taken by the plaintiff, and within the limitations provided by the federal statute; for, as was said of the rule in Murray v. "Polglase, supra, “It prevents conflict of action between the state court and the officers of the land department, and enables the court to know whether its judgment thus sought, often through tedious and expensive litigation, will, in the end, be effective for any purpose.” In accordance with this idea, doubtless, the legislature enacted Section 1322 of the Code of Civil Procedure, which declares: “In an action brought to determine the respective rights of claimants to the possession of a mining claim or quartz lode, under the provisions of the Acts of congress of the United States, it is immaterial which party is in possession, and it is sufficient to confer jurisdiction upon the court, if it appears from the pleadings that the application for a patent has heen made and an adverse claim thereto filed and allowed in the proper land office; and the verdict or decision must find which party’ is entitled to the possession of the premises in dispute.” This provision clearly implies that in this class of cases it is useless for the court to proceed to judgment, unless it appears that an application for patent has been made, and that an adverse claim has been filed and allowed in the proper land office. It does not, however, change the rule established by the cases cited, but leaves it undisturbed as to the allegation under consideration here. Its presence in,the pleading is necessary to state a cause of'action, but it is not a jurisdictional fact. Its presence leaves the pleading open to general demurrer, and this is the proper method of attack. It was- error, therefore, for the court to sustain the motion on the ground it did.

The filing mark upon a complaint is not part of the pleading, and the court could not, look to it, as it evidently did, in considering the motion, as conclusive evidence that the plaintiffs’ action was without merit. At best, the filing mark - is only prima facie evidence of the actual filing; for a paper is actually filed when it is deposited with the clerk in his office for that purpose, accompanied by the filing- fee. The date of the filing may become an issuable fact, like any other, wbicb must be alleged in order to state a cause of action. It would seem to be a more logical rule to require tbe failure to bring tbe action within the statutory limitation to be set up> as a matter of defense, but the rule as stated has been so long observed in this jurisdiction that we do not now feel justified in changing it.

The judgment is reversed, and the cause is remanded for further proceedings in accordance with the views herein expressed.

Reversed and remanded.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    HOPKINS, Appellant, v. BUTTE COPPER MINING COMPANY, Respondent.
    (No. 1,776.)
    (Submitted January 16, 1904.
    Decided January 23, 1904.)
    For syllabus, see Hopláns et al. v. Butte Copper Company, ante, p. 390.

      Appeal from District Gourt, Silver Bow County; William Glancy, Judge.

    .Action by John Hopkins against the Butte Copper Mining Company. From a judgment in favor of defendant, plaintiff appeals.
    Reversed.

      Messrs. Forbis & Mattison, and Mr. M. J. Gavanaugh, for Appellant.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Appeal from a judgment in favor of defendant. In this cause there is involved a controversy between the plaintiff and the defendant as to who is entitled to patent, under the laws of the United States, to a mining claim. The -plaintiff bases his claim on the Brookside quartz, lode mining location, and the defendant upon the Blind Treasure quartz lode location.

This case is in all respects similar in its facts to the case of Hopkins et al. v. Butte Copper Co., 29 Mont. 390, 74 Pac. 1081, and the question presented to this court for decision is identical with the question considered and decided therein. Por the reasons stated in the opinion in that case, the judgment of the district court is reversed, and the .cause remanded for further proceedings. ... ,.

Reversed and remanded.


text:
    HOPKINS et al., Appellants, v. BUTTE COPPER MINING COMPANY, Respondent.
    (No. 1,777.)
    (Submitted January 16, 1904.
    Decided January 23, 1904.)
    For syllabus, see Koplmns et al. Y. Butte Oopper Oompmiy, ante, p. 390.

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

    Action by John' Hopkins and another against the Butte Copper Mining Company. Prom a judgment in favor of defendant, plaintiffs appeal.
    Reversed.

      Messrs. Forbis & Mattison, and Mr. M. J. Cavanaugh, for Appellant.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Appeal from a judgment in favor of defendant. In this cause there is involved a controversy between the plaintiffs and-the-defendant as to who is entitled to patent, under the laws of tlie United States, to a mining claim. Tlie plaintiffs base tbeir claim on the Parasite quartz lode location, and the defendant upon the Blind Treasure quartz lode location.

This case is in all respects similar in its facts to the case of Hopkins et al. v. Butte Copper Co., 29 Mont. 390, 74 Pac. 1081, and the question presented to this court for decision is identical with the question considered and decided therein. For the reasons stated in the opinion in that case, the judgment of the district court is reversed, and the cause remanded for further proceedings.

Reversed and remanded.


author: MR. JUSTICE HOULO'WAY Mr. Justice Holloway :

text:
    FORRESTER & MacGINNISS, Respondents, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING CO. et al., Appellants.
    (No. 1,719.)
    (Submitted December 7, 1903.
    Decided January 23, 1904.)

      Corporations — Action by Stockholders — Transfer of Property —Cancellation—Equity Decree — Attorney's Fees — Value of Services — Allowance—Trial by Jury — Appeal—Final Judgment — Presumptions — Value — Classes of Actions — Cross-Examination.

    1. A transfer by the directors of a corporation of all its property'to a foreign corporation organized by the directors of the former for the purpose of receiving its property, the scheme being ’to have its stockholders sell to or exchange their stock with the new company, is not voidable only, but void.
    2. Where, on a bill by stockholders against directors to cancel a transfer of all the corporation property, the directors consent that a decree be entered adjudging their acts, so far as they related to a sale or attempted sale, to be null and void, and that the deed be declared •‘null and canceled,” they cannot complain of a decree declaring the deed ‘‘null and void” on the ground that it is voidable only.
    3. Minority stockholders, who successfully brought a suit in equity against the directors to restrain and cancel an attempted transfer of the entire property of the corporation to a foreign corporation organized by the defendant directors for the purpose, were entitled to an allowance for attorney’s fees.
    4. Such fees were properly allowed by the court as a part of plaintiffs’ costs and expenses, taxable according to the course and practice of courts of equity, and were not recoverable only in an action at law as money paid out for the benefit of the derelict corporation, or to be allowed only as part of the .expense of administering through the receiver the trust fund in the hands of the court of equity.
    5. That such mode of making the allowance deprives the defendant of a jury trial of the issue as to the amount does not render the mode illegal.
    6. That the decree declaring the 'transfer hull and void and allowing the attorney’s fee contained a provision for an accounting by the foreign corporation did not render the allowance of the attorney’s fee premature, as the reservation for an accounting did not make the judgment less a final decree under Code of Civil Procedure, Section 1000, defining a judgment as the final determination of the rights of the parties, and Section 1820, denominating every direction of court or judge made in writing, and not included in a judgment, an order.
    7. The decree of a court of equity allowing an attorney’s fee on conflicting evidence and supported by credible testimony will not be disturbed on appeal.
    8. On appeal from a decree allowing an attorney’s fee, the presumption, in the absence of a contrary showing, is that the court followed the established rule and considered the amount and character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of the property to be affected, the professional skill and experience called for, the character and standing in their profession of the attorneys, and the result secured.
    9. ‘ On the successful termination of a suit by minority stockholders to restrain and cancel a transfer of all the property of the corporation, the value of all such property, and not merely the value of the stock held by plaintiffs, is to be considered in determining the amount of attorney’s fee allowable to plaintiffs.
    10. It was proper to take into consideration the services of the attorneys in special proceedings in which the trial court was a nominal party to writs of review and prohibition to prevent the execution of orders in the main 1 proceeding.
    11. Services in unsuccessful intermediate orders and appeals might be considered.
    12. The latitude of cross-examination rests largely in the discretion of the trial court, and is not to be interfered with save for abuse.
    13. An appellant cannot avail himself of an exception taken on trial by the adverse party.
    14. A party will not be heard to complain of a judgment entered by his consent.

      Appeal from District Gouri, Silver Bow County; William, Glancy, Judge.

    Bilí, by James Forrester and Jobn MaeGinniss against tbe Boston & Montana Consolidated Copper & Silver Mining Company of Montana and others, to- restrain and cancel a transfer of all the stock of defendant corporation. From a decree declaring the transfer null and void, and from, an order granting tbe plaintiffs attorney’s fees, defendants appeal.
    Judgment affirmed; and tbe appeal from tbe order dismissed.

      Messrs. Forbis & Fvans, Mr. W. W. Dixon, and Mr. Ransom Cooper, for Appellants.

      Mr. John J. McJIatton, Mr. Charles R. Leonard, Messrs. Cullen, Day & Cullen, and Mr. Robert B. Smith, for Respondents.
   MR. JUSTICE HOULO'WAY

delivered tbe opinion of tbe court.

This action was commenced June 4, 1898, by Forrester and MacGinniss, plaintiffs, against tbe-Boston & Montana Consolidated Copper & Silver Mining Company of Montana, tbe Boston & Montana Consolidated Copper & Silver Mining Company of New York, tbe board of directors of tbe Montana Company, and certain stockholders and holders of proxies, to restrain the transfer of tbe property of tbe Montana, Company to tbe New York Company, to secure tbe appointment of a receiver for tbe Montana Company, and for other relief. A full statement of tbe facts in this case is contained in tbe opinion heretofore rendered by this court (Forrester et al. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353), to which reference is made. A temporary injunction was issued, and afterwards a receiver appointed. After tbe appeal from tbe order granting tbe injunction bad been decided against tbe defendants, and they bad made numerous unsuccessful attempts to prevent tbe property falling into tbe bands of tbe receiver, on April 9, 1899, they filed in tbe district court their written consent that a decree might be entered enjoining tbe transfer of tbe property of tbe Montana Company to tbe New York Company, enjoining tbe voting of tbe stock in favor of any such transfer, enjoining tbe New York Company from operating tbe property in any manner, and requiring that company to redeliver to tbe Montana Company tbe possession of tbe property in controversy, and adjudging tbe acts of tbe directors and officers of tbe Montana Company, so far as they related to a sale or attempted sale of the property to the New York Company, to be null and void, and requiring the New York Company to execute proper conveyances of the'property to the Montana Company, requiring the New York Company to account for the property while in its possession, and providing that plaintiffs might recover their costs. This offer was declined by the plaintiffs, and, a motion for the discharge of the receiver having been made and denied, 'an appeal was taken to this court. The order denying that motion was reversed (Forrester & MacGinniss v. B. & M. C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868), and the lower court was directed to enter a judgment and decree in conformity with the offer made by the defendants, and thereupon to discharge the receiver. On May 4, 1901, the court entered a judgment and decree containing the provisions stipulated for by the defendants', and further allowing the plaintiffs an attorney fee of $50,000, which is adjudged against the Montana Company. The decree also contains the following provision: “It is further adjudged and decreed that the acts of the directors and officers of the defendant mining company, Boston & Montana Consolidated Copper & Silver Mining Company of Montana, so far as they relate to the sale ox conveyance, or the attempt to sell or convey, the property of the said mining company to the New York Company, be, and the same are hereby, declared, adjudged and decreed to have been and to be null and void, and to have conveyed no right or title to the NeAV York Company in or to any of the property of the Montana Company, and that, any and all deeds or instruments of conveyance, and particularly the deed of conveyance hetetofore given to the said New York Company by the officers and directors of the Montana Company, aiid executed in its name, for all the property and rights mentioned and described in ESxhibit A of the complaint herein, which deed is recorded on page 173 of Book 29 of Deed Becords of Silver Bow county, Montana, be, and the same is hereby, declared, adjudged and decreed to have been and to be null and void, and to have conveyed no title or right, and are hereby canceled and set aside; and the said New York Company is forever enjoined from asserting any claim under said deed or deeds to said property. It is hereby adjudged and decreed that the said defendant, the said New York Company, has no right, title or interest in or to any of the property of the Montana Company heretofore or at any time conveyed or attempted to be conveyed by said Montana Company to said New York Company, and that it never had or acquired any right, title or interest therein.” From this judgment and the order allowing attorney’s fee the defendants appealed.

Appellants contend that the judgment is unauthorized, particularly with reference to that portion quoted above. The specific objection made is that the judgment decrees the transfer or attempted transfer by the Montana Company h> the New York Company to have been null and void, and likewise decrees the deed executed by the officers of the Montana Conip any to the New York Company to have been null and void, and that it never transferred any right or title to the New York Company. Appellants contend that the court-should have gone no further than to declare such acts voidable.

If the transfer or attempted transfer by the Montana Company to the New York Company and the deed evidencing that transfer were in fact null and void, then they conveyed no right or title to the New York Company. A void transfer is, in effect, no transfer. A void deed is, in effect, no deed. Such a deed is a nullity ab initio. However, discussion of.the question is foreclosed by the offer of appellants and the former decision of this court (Forrester et al. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 544, 55 Pac. 229, 353, above), where this cause wasi fully considered. In disposing of it this court said: “Holding, as we do, that the proposed transfer is ultra vires the corporation, and therefore void, consideration of the question whether the transaction would, if accomplished, result in a consolidation or merger of the Montana Company with the New York Company, is unnecessary.” Aind this view finds support in the following authorities: McShane v. Carter, 80 Cal. 310, 22 Pac. 178; Pekin Mining, etc. Co. v. Kennedy, 81 Cal. 356, 22 Pac. 679; McCutcheon v. Merz Capsule Co., 71 Fed. 787, 19 C. C. A. 108, 31 L. R. A. 415; Central Transportation Co. v. Pullman's Palace Car Co., 139 U. S. 24, 11 Sup. Ct. 478, 35 L. Ed. 55; Jacksonville M. P. Ry. & Nav. Co. v. Hooper, 160 U. S. 514, 16 Sup. Ct. 379, 40 L. Ed. 515; California Bank v. Kennedy, 167 U. S. 362, 17 Sup. Ct. 831, 42 L. Ed. 198.

It is true that in Boston & Montana C. C. & S. M. Co. v. M. O. P. Co. (C. C.), 89 Fed. 529, Judge De Haven held that the attempted transfer by the Montana Company to the New York Company was, only voidable, and not void; but we think that decision is in conflict with the great weight of authority, and we prefer to follow the former decision of our own court.

As stated above, the appellants made an offer in writing that judgment might be entered in favor of Forrester and MacGin-niss, and this court directed the trial court to enter judgment in conformity with the same. Upon this particular question the appellants’ offer contains these provisions, which they proposed should be incorporated in the judgment, viz.: “Also adjudging that the acts of the directors and officers of the Montana Company, so far as relate to the sale or conveyance, or the attempt to sell or convey, the property1 of the said Montana Company to the said New York Company, be declared null and void, and that the deed of conveyance heretofore given to the said New York Company by the officers and directors of the said Montana Company, and executed in its name, for all the property and rights mentioned or described in Exhibit A of the complaint herein, which deed is recorded on page 175 of Book No. 29 of Deeds Beeords of Silver Bow county, Montana, be declared null and canceled; and that the said New York Company be forever enjoined from asserting any claim under said deed to said property; also- that said New York Company be declared to have no- right, title or interest in or to any of the property of the Montana Company heretofore at any time conveyed or attempted to be conveyed by said Montana Company to said New York Company.”

The terms “null” and “void” are used interchangeably, and are defined as follows: Null: “Of no legal force or effect; void; as, our agreement is null.” Standard Dictionary. Void: “Having no legal force; entirely null; incapable of confirmation or ratification.” Id. Null: “Of no legal or binding force or validity; of no efficacy; invalid; void; nugatory; useless; of no account or significance.” Webster’s Dictionary1. Void: “Of no> legal force or effect what-' soever; null, and incapable of confirmation or ratification.” Id. Null: “Void; of no legal or binding force or validity; of no efficacy; invalid.” Century Dictionary. Void: “Specifically, in law, without legal efficacy; incapable of being enforced by law; having no legal or binding force; null; not effectual to bind parties, or to convey or support a right.” Id.

We are unable to perceive the difference, in legal effect, between the offer and the decree, and are of the opinion that in this regard the lower court followed the directions given by this court, and that as to> this portion of the judgment it was entered by consent, and appellants will not be heard to complain of it.

The receiver had been dispossessed of the property and restitution thereof to the Montana Company had been made by an order of this court dated April 13, 1899 (Forrester & MacGinniss v. Boston & Montana C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868), long prior to the date of the rendition of the judgment by the lower court in which is included the allowance for attorney’s fees, and appellants contend that such allowance was improperly made, first, because plaintiffs have not brought themselves within the rule which permits the recovery of an attorney1 fee by a minority stockholder who prosecutes a suit of this character; and, second, because there was no* fund in the hands of the court out of which such fee could be paid at the time it was allowed.

Upon the first proposition it is sufficient to say that the officers and trustees of the Montana Company had assumed to transfer the entire property of the corporation to the New York Company. These plaintiffs were minority stockbolders in tbe Montana Company, but were not stockbolders in tbe New York Company, and against tbeir wishes, could not be compelled to become sucb. Tbe offer of tbe defendants to confess judgment was an admission of wrongdoing on tbeir part in so far as tbe transfer or attempted transfer was concerned, and tbis court, on appeal from tbe order granting an injunction (21 Mont. 544, 55 Pac. 229, 353, supra), declared sucb attempted transfer ultra vires and void. Under sucb circumstances tbe authorities are unanimous in bolding that tbe minority stockholder or stockbolders dissatisfied with sucb action may institute a suit in equity to prevent tbe transfer or to recover back tbe corporate property.

Having determined that plaintiffs could maintain tbe action, tbe next inquiry is, were they successful? and tbis question is answered in tbe affirmative by the offer of defendants to permit judgment to be entered, and tbe entry of judgment accordingly ; and tbe doctrine is settled beyond controversy that under sucb circumstances tbe prevailing minority stockbolders may recover tbeir attorney fee. Tbis brings us to a consideration of a much more difficult question, viz., bow shall sucb fee be recovered ? Obviously, it is permitted upon one of two theories: First, that tbe fee is a part of plaintiffs’ costs taxable according to tbe course and practice of courts of equity, and included in tbe final decree; or, second, that it is money paid out and expended for tbe use and benefit of tbe derelict corporation, and recoverable in an action at law. Numerous cases are cited by counsel of these suits successfully waged by minority stockholders, where an attorney fee has been allowed to tbe plaintiffs; but in most, if not every1, instance a receiver bad been appointed, and tbe property was in tbe actual custody and control of tbe court. Tbe amount to be allowed as sucb fee was determined by a reference to a master, and when tbe amount was reported it was included in tbe final decree, and directed to be paid out of tbe property recovered or protected by tbe suit. Tbe mere fact that these courts say that it is proper to make such payment out of tbe trust fund throws little, if any, light upon the question' in dispute here. These decisions are useful only as'precedents, for, after all, they do not determine the manner of recovery of such fee where no receiver has been appointed, or, as in this instance, where the property has been taken from the possession of the receiver before final decree has been entered, or before the amount of such fee has been determined.

We are not impressed with the suggestion that such fee is allowed as a part of the expense of administering’ the trust fund in the hands of the court, for that can refer only to the administration by the court through the receiver, and costs of such administration are costs and expenses incident to such receivership only, while there is no relation whatever between the rights or liabilities of the plaintiffs to the action and the receiver. He is supposed to remain neutral while the litigation is being waged by the contending parties.

Wickersham v. Crittenden, 103 Cal. 583, 31 Bac. 513, cited by appellants, is not decisive of any question involved in this action. In that case Wickersham, who was a minority stockholder in the San Luis Obispo Bank, instituted two' suits against Crittenden, the bank and others, to recover for the bank certain funds. The actions were successful, and the judgment in each instance recited that the recovery was for the use of the bank. Upon appeal each of the judgments was affirmed. Afterwards Wickersham sought, by motion, to have his attorney fee paid to him out of the money recovered, notwithstanding he had not had it allowed and included in the judgments. The lower court made an order to^ that effect, but on appeal the order was reversed. The court said: “The judgments as rendered in the superior court were affirmed in this court, and were, of course, final judgments, and they did not include attorneys’ fees. They directed the moneys recovered, together with the stated costs, to be paid to the bank and the superior court could not, upon petition or motion, change or modify these final judgments by ordering the moneys recovered to be disposed of in any way other than provided in the judgments themselves.”

In Grant v. Lookout Mountain Co., 93 Tenn. 691, 28 S. W. 90, 27 L. R. A. 98, certain phases of this question were involved. That action was brought by Grant and other minority stockholders against the corporation (Lookout Mountain Coirn pany) to1 restrain a sale of all the property of the company to one Baxter. The purpose of the sale was alleged to be to effect a consolidation of the Lookout Mountain Company and two insolvent corporations, in which the majority stockholders in the Lookout Mountain Company were also majority stockholders. The action was successful, and a decree was ordered, setting aside the pretended transfer to Baxter, and completely recovering the property to the Lookout Mountain Company. The ■successful minority stockholders then moved the court to refer to a master the question of the amount which they should recover as attorney fee. This application was refused, and an appeal taken. The opinion is lengthy, and reviews the decisions upon the question of the propriety of allowing an attorney fee in such a ease, and concludes as follows: “We are therefore of opinion that this record shows that through the intervention of these minority stockholders the property of the corporation has been preserved, protected and, indeed, recovered after it had been illegally conveyed away, and that, such recovery inuring to the benefit of the corporation, the suit was, to all intents and purposes, the suit of the corporation itself. The Lookout Mountain Company is therefore responsible for proper and reasonable counsel fees incurred by complainants in the prosecution of the suit. * * * The decree of the chancellor is reversed, and the case remanded for a reference in accordance with the motions submitted by the complainants and their counsel in the court below.” It is to be Observed in this case that the Supreme Court of Tennessee does not treat the attorney fee as a charge against the trust fund, payable only on condition that such fund is still under the control of the trial court, but holds that the derelict defendant corporation -is directly liable* for it, and orders that the amount of such fee be determined by' the chancellor by a reference to a master. The amount of the fee in the case at bar was reached in the same manner. except that the chancellor heard the testimony, instead of referring the matter, as he might have done. We are not treating the decision just referred to as decisive of this case, but only as a precedent indicating the practice in courts of equity generally.

We can see no reason why the power of the court to allow an attorney fee should he made to depend upon the mere possession of the trust fund. The most forceful objection to the manner of allowing the fee in this case is that it deprives the defendants of a jury trial of the issue as to the amount to be allowed as such fee, but this objection could be urged with equal propriety in every case where such a fee is allowed out of the trust fund. The allowance of such fee and the determination of the amount by the chancellor have become the settled practice in courts of equity. If such fee was recoverable only as for money paid out for the use and benefit of the defendant corporation, we are unable to understand how it could be allowed out of the corporate property by the chancellor. The action to recover money paid to the use of another is an action in assump-sit — an action at law. The very fact of the allowance of such a fee and the determination of the amount thereof by the chancellor incline us to the belief that it has never been considered money paid out for the use of the defendant corporation, but costs incident to the suit; and this belief is strengthened by the further fact that in every instance the right to recovery is made to depend upon the success of the minority stockholder’s suit. If he is successful, he is entitled to recover his attorney fee; if he is unsuccessful, he is not entitled to recover it. If the fee was recoverable as for money paid out for the use of the defendant corporation, the success or failure of the litigation in which it was expended would have little to do with the right to its recovery.

Impelled by these considerations we are of the opinion that the attorney fee was properly allowed by the court as a part of plaintiffs’ costs and ¿xpenses, taxable according to the course and practice of courts of equity. In this view of the case, the order allowing sncb fee is not appealable, but is reviewed on tlie appeal from the judgment itself.

It is further claimed on behalf of the appellants that the allowance for attorney fee was prematurely made, for the reason that the judgment in which it is included is not a final judgment. This contention is predicated upon the provision for an accounting to be made by the New York Company to the Montana Company. We do not think that this reservation of itself changes the character of the judgment. It is either a final judgment or no' judgment. Section 1000 of the Code of Civil Procedure reads as follows: “Sec. 1000. A judgment is the final determination of the rights of the parties in an action or proceeding.” Section 1820 of the same Code reads: “Sec. 1820. Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order.” In In re Rose's Estate, 80 Cal. 160, 22 Pac. 86, the court considered provisions of the California Code identical with Sections 1000 and 1820, above, and reached the conclusion that there is no distinction between a judgment and a final judgment, and that every direction of a court in writing must fall within the definition of the term “judgment or order.” Furthermore, to agree with appellants’ contention would be to defeat their appeal altogether, for, if this is not a final judgment, there is no appeal from it, and their appeal would have to be dismissed. However, under the definitions given above, we are of the opinion that the judgment entered in this cause is a final judgment.

It is earnestly contended that the fee allowed by the district court is excessive. It is not, however, insisted that the decision of the court is not supported by the testimony. On the contrary, the record shows that Hon. T. C. Bach, some time associate justice of the Supreme Court of the Territory of Montana, O: E. Goddard, of Billings, and G. W. Stapleton, of Butte, eminent members of the profession in this state, and attorneys of many years of experience, each testified that, in his opinion, the services rendered by the attorneys for the plaintiffs were reasonably worth the stun of $50,000, the amount allowed by the court. It is likewise true that other attorneys of wide experience and of high standing in the profession testified on behalf of the defendants that a much less amount would constitute reasonable compensation for the services. The amount to be allowed, however, was a matter for the trial court to determine in the first instance from all the facts and circumstances in evidence. (3 Ehcy. Law, 423.-) There was a conflict in the testimony, and the determination of the trial court, being supported by evidence which it deemed credible, will not be disturbed on appeal.

The authorities are unanimous in holding that the plaintiffs are entitled -to' recover a reasonable attorney fee, and for the purpose .of determining the amount of such fee the following rule has been laid down: “The circumstances to be considered in determining the compensation to be recovered are the amount and character of the services rendered, the labor, time and trouble involved, the character and importance of the litigation in which the services were rendered, the amount of money or the value of the property to be affected, the professional skill and experience called for, the character and standing in their profession of the .attorneys. * * * The result secured by the services of the attorneys may be considered as an important element -in determining their value.” (3 Ency. Law, 420; 4 Cyc. 994.) In the absence of any showing to the contrary, the presumption must be indulged that the trial court followed this well-established rule.

The record discloses that five firms of attorneys, namely, Mc-Ilatton & Cotter, Glayberg & Corbett, Cullen, Bay & Cullen, Bobert B. Smith, and Charles B. Leonard, were employed by, and participated in the litigation on behalf of, the plaintiffs. John. J. McTIatton, one of the attorneys for plaintiffs, testified to the work done by the several firms in the litigation (various phases of which litigation have been before this court — Forrester et al. v. Boston & Montana C. C. & S. M. Co., 21 Mont. 544, 565, 55 Pac. 229, 353; State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 220, 56 Pac. 219; State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 241, 56 Pac. 281; State ex rel. Boston & Montana. C. C. & S. M. Co. v. Dist. Court, 22 Mont. 376, 56 Pac. 687; State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 438, 56 Pac. 865; Forrester & MacGinniss v. Boston & Montana C. C. & S. M. Co., 22 Mont. 430, 56 Pac. 868; Forrester v. B. & M. C. C. & S. M. Co., 23 Mont. 122, 58 Pac. 40; Forrester & MacGinniss v. Boston & Montana C. C. & S. M. Co., 24 Mont. 148, 60 Pac. 1088), and tipon tbis testimony as a basis the witnesses expressed their opinions as to the reasonable value of such services. The witness Mcliatton testified that the property in controversy — that is, the entire property of the Montana Company — was of the value of about $40,000,-000. It appears from the record that these plaintiffs owned 200 shares of the capital stock of the Montana Company, worth $53,000, based upon the market quotations of the stock, and appellants insist that the value of the property to be affected (referred to in the rule laid down above) in this instance was the property of the plaintiffs, and that it is ridiculous to allovv $50,000 attorney fees in an action involving only $63,000 worth of property. Respondents contend that the property to be affected, within the meaning of that rule, was, the entire property of the Montana Company, and that in estimating the value of the services rendered by counsel for plaintiffs the witnesses properly took into consideration property of the value of $40,-000,000. What property was involved in the litigation is to be determined by a consideration of the nature and purpose of the action. If the action is by minority stockholders to protect their proqierty rights only, then doubtless appellants’ contention is correct. But the courts do not so treat it. In Grant v. Lookout Mountain Co., above, it is said: “Wherever a cause of action exists primarily in behalf of the corporation against directors, officers and others for wrongful dealing with corporate property, or wrongful exercise of corporate franchises, so that the remedy should regularly be obtained through a suit by and in the name of the corporation, and tbe. corporation either actually or virtually refuses to institute or prosecute such a suit, then, in order to prevent a failure of justice, an action may be brought and maintained by a stockholder or stockholders. * * * The rationale of this rule should not be misapprehended. The stockholder does not bring such a suit because his rights have been directly violated, or because the cause of action is his, or because he is entitled to the relief sought. He is permitted to sue in this manner simply in order to set in motion the judicial machinery of the court.- The stockholder, either individually or as the representative of the class, may commence the suit, and may prosecute it to judgment; but in every other respect the action is the ordinary one brought by the corporar tion. It is maintained directly for the benefit of the corporation, and the final relief, when obtained, belongs to the corporation, and not to the stockholder plaintiff.” (Trustees v. Greenough, 105 U. S. 521, 26 L. Ed. 1157; 4 Thompson on Corporations, 4491, 4560; 2 Cook on Stockholders, 748.)

If the doctrine above announced is correct — and we think it is — the purpose of the action, then, is to recover back the trust fund, or all of the property of the corporation which is about to be dissipated, and in the present instance it was the entire property of the Montana Company, valued at about $40,000,-000; and such value was properly considered in determining the attorney fees to be allowed the plaintiffs for the successful prosecution of the action, which ought to have been brought by the corporation itself, had not its officers and trustees, breached their trust.

Neither do we think there is any merit in appellants’ contention that the expert witnesses were improperly permitted to take into consideration services rendered in certain- special proceedings instituted in this court, and in which the lower court was nominally a party defendant or”respondent. One object of tliis action was to have a receiver appointed to- take charge of the property of the Montana Company pending the litigation. The action of the district court in” making this appointment-was affirmed by this court. (State ex rel. Boston & Montana C. C. & S. M. Co. v. Dist. Court, 22 Mont. 241, 56 Pac. 281.) The writs of review and prohibition sued out of this court were intended to prevent the execution of the order appointing the receiver, and were merely incidental to the main action itself. The same reason applies to the other services to which objection is made.

Appellants further contend that it was error to include attorneys’ services which were unsuccessful, and reference is made to certain motions and the appeal from the order of the lower court refusing to discharge the receiver, which were unsuccessfully opposed by the plaintiffs. We understand the rule in suits of this character instituted by minority stockholders to be that, if the action is successful, the plaintiffs may recover their attorney fees; if unsuccessful, they may not. But the rule applies to the ultimate object to be attained, and not to every step, which may be taken in the course of the litigation. If in the end the plaintiffs accomplished the purpose for which the suit was instituted, their efforts were successful, however many intermediate orders or rulings may have been made against them.'

It is finally contended that the court erred in sustaining certain objections interposed to questions asked plaintiffs’ witnesses on cross-examination. The following will illustrate the alleged errors: “(8) The court erred in sustaining objection to the question asked witness McHatton, as follows: ‘Do you know of any such fee as fifty thousand dollars ever having been paid in the state of Montana to any attorney?’ ” “(11) The court erred in sustaining the objection to the question asked witness Bach, as follows: ‘I will ask you if, in representing that corporation (the M. O. P. C'o.), you can tell us what your salary is per year ? A. I am not a clerk, sir; and I have no salary. I have a retainer. Q. I will ask you, then, what your retainer is per year?’” “(13) The court erred in sustaining objection to the question asked the witness Goddard, as follows: ‘Q. Did you ever receive such a fee as fifty thousand dollars ?’ ” “(1-7) The court erred in sustaining the objection to the question asked tbe witness Stapleton, as follows: ‘Did yon ever receive sucli a fee as fifty thousand dollars under any circumstances?’ ” “(19) Tbe court erred in sustaining tbe objection to the question asked tbe witness Stapleton, as follows: £Q. I will ask you what compensation you received for your services in connection with tbe Boston & Montana Company ?’ ”

With reference to tbe questions asked the 'witness McHatton, it is sufficient to say that on bis direct examination be did not testify with reference to tbe value of tbe services rendered, and therefore could not be cross-examined respecting tbe same.

Tbe opportunity to cross-examine tbe opposing party’s witnesses is a matter1 of right; but tbe latitude of cross-examination is very largely in tbe discretion of tbe trial court, and an appellate tribunal will not interfere unless that discretion is oppressively abused. (8 Enc. Pleading & Practice, 109, and numerous cases cited.) Tbe record discloses that reasonable latitude was allowed in tbe cross-examination of these witnesses, and in excluding answers to tbe foregoing questions we are not prepared to' say that such an abuse of tbe trial court’s discretion is shown as would warrant interference by this tribunal, if tbe examination was otherwise proper. It has been said that evidence of what another attorney received in tbe same ca§e, or in other particular cases, is not admissible in determining tbe value of services performed. (3 Ehc. Law, 424.) We are not prepared to say that the line of examination indicated by tbe questions above quoted was proper cross-examination, or that answers thereto would have thrown any light upon tbe question at issue or upon tbe qualification of tbe witnesses testifying. Certainly, under tbe shoAving made by tbe record in tbe action, no such abuse of discretion is shoAVn as: would warrant a reversal of the judgment.

One question directed to tbe witness Goddard might properly have been answered, and error is predicated by appellants upon tbe ruling of tbe court, as follows: “(12) Tbe court erred in sustaining objection to- tbe question asked witness Goddard, as follows: £Q. Mr. Goddard, I will ask you if you know of any ease wherein any number of attorneys in that particular case have received as compensation a fee of fifty thousand dollars ?’ ” The question was apparently framed to' make out a case parallel with the one at bar. The record, however, discloses these'recitals immediately following that question: “Objected to as immaterial, irrelevant and incompetent. Objection overruled, and plaintiffs allowed an exception.” It is apparent, then, that the ruling is in appellants’ favor, and that the exception was taken by the plaintiffs, and cannot be availed of by the appellants on this appeal. We do not understand that a party may complain of a ruling in his own favor.

A careful review of the case leads us to the conclusion that no error prejudicial to the appellants was committed.

The appeal from the order allowing the attorney fee is dismissed, and the judgment is affirmed.

Affirmed.

Mr. Justice Milburn having been absent, owing to illness, did not hear the argument, and takes no part in this decision.

ON MotioN eor Rehearing-.

(Decided April 12, 1904.)

Mr. Justice Holloway :

In support of their motion for a rehearing, appellants direct our attention to an inaccuracy in out statement of their contention. The mistake occurs in paragraph 3 of the opinion heretofore rendered wherein we say that appellants contend that the allowance for attorneys’ fee was premaurely made, for the reason that the judgment in which it is included is not a final judgment, while appellants’ contention actually was that such judgment was not the final judg-ment in the case, or, in other words, that the judgment entered did not finally dispose of the suit, for the reason that the accounting had not been had. It is, however, fairly deducible from the pleadings that the accounting was only an incident to the main purpose to be accomplished by the suit, namely, to prevent tbe consummation of tbe transfer of tbe property of tbe Montana Company to tbe New Turk Company, and to' tbat extent tbe action was successful, and tbe plaintiffs entitled to tbeir attorney fee. Tbe decree disposed of tbe issues involved, and left nothing but tbe actual accounting to be taken, and we are of tbe opinion tbat tbis of itself is not sufficient to necessitate a delay until it is done before tbe plaintiffs may recover tbe attorney fee due them for prosecuting to a successful issue tbe principal action, in wbicb tbe accounting was but an incident.

Tbe motion for a rebearing is denied.

Denied.

Me. Ghiee Justice BbaNtly concurs. Me. Justice Mil-bueN, not having participated in tbe bearing of this appeal in ,the first instance, owing to illness, takes no part in tbis decision.


author: MR. COMMISSIONER ÜALLAWAY Pee, GueiaM. Me. Justice MilbuRN:

text:
    STATE, Respondent, v. De WOLFE, Appellant.
    (No. 1,849.)
    (Submitted January 6, 1904.
    Decided January 23, 1904.)

      Grand Larceny — Information—Time for Answer — Refusal—l 'Error — Venue—Horses —■ Brands — Ownership — Proof— Variance — Conspiracy — Declarations of Co-Conspirators■ — ■ Proof — Accessories — Instructions ■— Statutes — Right of Counsel to Appear — Question for Court.

    1. Under Penal Code, Section 1893, defining an arraignment, and requiring a “copy” of the information to be delivered to defendant, a true copy is meant.
    2. Defeudant in a prosecution for grand larceny raised the objection that the copy of the information furnished him was materially different from the information on which he was about to be tried, which objection the court sustained, and required defendánt to be furnished with a true copy, whereupon defendant requested the statutory time in which to plead. Seld3 that a refusal of the request constitutes reversible -error, under Penal Code. Section 1S93, providing that, “if on arraignment tlie defendant requires it, lie must be allowed a reasonable time, not less than one day, to answer tbe informationtbe record showing- that no plea was entered at the trial.
    3. where the state, in a prosecution for larceny of horses, tries the case on the theory that the horses were stolen in pursuance of a conspiracy between defendant and others, proof of declarations of defendant’s co-conspirators must be confined to those made while the conspiracy was pending, and in furtherance of it.
    4. where defendant was charged with stealing horses bearing certain brands, proof that one one of the brands belonged to H., and _that the horses bore such brand, is not proof that they belonged to H.
    5. An allegaiton in an information charging grand larceny that the property belonged to a certain person is material.
    6. under Penal Code, Sections 1501, 1569, 1572, permitting conviction in any connty into which the guilty person takes stolen property, there is no variance between the venue as laid in an information charging larceny of horses in Cascade county, Montana, and proof that the horses were stolen in Canada, and driven into Cascade county.
    7. Penal Code, Section 1841, Subd. 4, providing that an information is sufficient if it can be understood therefrom that the offense was committed at some place within the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein, has no application to an information charging larceny.
    8. under Penal Code, Section 1852, the distinction between accessories before the fact and principáis is abrogated, and all are treated as principals.
    9. It Is improper to charge, In a prosecution for grand larceny, as to aeceso-ries after the fact, In the language of Penal Code, Section 1854, in the absence of evidence on which to base such a charge.
    10. under Code of Civil Procedure, Section 3390, requiring the court on all proper occasions to charge “that a witness false in one part of his testimony is to be distrusted in others,” a charge in a prosecution for grand larceny which tells the jury that they have the right to disregard any or all of the testimony of a witness who has willfully and intentionally test!fled falsely as to any material matter in the case is erroneous by reason of the omission of the words “except In so far as it is corroborated by other credible evidence.”
    11. The right of counsel to appear in a cause is a question of law for the court. Me. Justice Milbuen dissenting in part.

      Appeal from,, District Cowrt, Gaseado County; J. B. Leslie, Judge.

    Peecy De Wolee was convicted of grand larceny. Prom tbe judgment, and from an order denying bis motion for a new trial, be appeals.
    [Reversed.

      Mr. James W. Freeman, for Appellant.

      Mr. James Donovan, Attorney General, for tbe State.
   MR. COMMISSIONER ÜALLAWAY

prepared tbe opinion for tbe court.

Percy De Wolfe was convicted of the crime of grand larceny. Prom the judgment, and an order denying his motion for a. new trial, he has appealed.

He was charged with stealing 27 horses branded Bar A P Bar on the left thigh, the property of Albert Lindquist, and 9 horses branded O' L on the right shoulder, the property of George ILouk. The case came on for trial October 21, 1901. After it was called, counsel for defendant raised the objection, which they said had just come to their notice, that the defendant had never been arraigned on the information; that the information was different from the copy furnished the defendant in two important respects, of which facts: they offered to make proof. The court then, after examining the information and copy, said: “Yes; there is a very material difference in the description of the property. The copy has an impossible time — - the 25th of October, 1901. The property described is different, too. Pix them SO' they will be copies, and let him, be arraigned again.” A copy of the information being made, the court directed the defendant to stand, and, after asking him- his true name, directed the clerk to read to him the information. This the clerk did, and also gave him a, copy thereof. The defendant was then asked if he was ready to enter his plea, to- which he answered that he was not, and requested that he be given the statutory time in which to- plead, whereupon the court said: “Let the record show that this case was set for trial on this day by an order made on the 27th of September last, and that upon calling the case this morning the parties, both plaintiff and defendant, announced that they were ready for trial, and that this objection was subsequently raised; and we will go on with this case, gentlemen.” The trial was proceeded with accordingly. The defendant assigns that such action by the court constituted prejudicial error. We may say parenthetically, that the record does not show, except inferentially, that the defendant was ever "arraigned prior to the day of the trial, and does not show that any plea was ever entered by him or for him at any time, but does show that he did not enter any plea on the morning of the trial.

Section 1880' of tbe Penal Code provides that when the information is filed the defendant must be arraigned thereon before the court in which it is filed, unless the cause is transferred to some other county for trial.

Section 1893, lb., specifies, that the arraignment must be made by the court, or by the clerk or county attorney under its direction, and consists, in reading the information to the defendant, and delivering to him a copy thereof and of the indorse-ments thereon, including the list of witnesses,' and asking him whether he pleads guilty or not guilty to. the information. And “if, on the arraignment, the defendant requires it, he must be allowed a reasonable time, not less than one day, to answer the information.” (Section 1895, lb.)

It is apparent that when the defendant came into- possession of the copy of the information, which was evidently prior to September 27th, when the order was made setting the cause for trial, he did not receive a true copy, or else the information was afterward changed. He was entitled to rely upon the presumption that the officers of the court had properly performed their official duties, and that the document 'furnished him, purporting to- be a copy of the information, was such in fact. The “copy” meant is, of course, a true copy. His attorneys were entitled to. rely upon such presumption, and were under no obligation to make a comparison of the copy with the original. They were justified in preparing to meet the issue charged in the information as shown by the copy, and no. other. When the case was called, and they announced themselves ready to proceed, it was to meet the issue charged in the copy in their possession. When they discovered a material discrepancy between the description of the property in the copy and that in the original, they were confronted with an issue they did not expect, and could not have anticipated. The matter being called to the attention of the court, it at once determined that the difference was material — so- material that another arraignment was deemed - necessary. By taking the action it did, the court indicated that, in its opinion, the defendant had not been arraigned upon the information then on file.

Afe we have seen, three steps are necessary in an arraignment : The information must be read to- the defendant, be must be given a copy thereof, and he must be asked whether he pleads guilty or not guilty to the information. All of these steps are necessary, and must be taken unless expressly waived. The court doubtless thought the first attempt to arraign the prisoner was futile, and, if no copy was given him, its futility is obvious. The arraignment on the morning of the trial was therefore the first arraignment, and it seems- to have been properly done; but the defendant, asserting his rights under the statute, required time to plead. He was entitled to at least one day. This the court refused. The defendant was then placed on trial without having pleaded to the information. No issue was joined by him. A trial had when the defendant has neither pleaded to the information, nor had his plea entered for him, is invalid, and a judgment of conviction based thereon will be reversed. (Territory. v. Clayton, 8 Mont. 1, 19 Pac. 293; Jackson v. State, 91 Ala. 55, 8 South. 773, 24 Am. St. Rep. 860; Hill v. State, 1 Yerg. 76, 24 Am. Dec. 441; Hoskins v. People, 84 Ill. 87, 25 Am. Rep. 433; Gould v. People, 89 Ill. 216; Crain v. U. S. 162 U. S. 625, 16 Sup. Ct. 952, 40 L. Ed. 1097; People v. Gaines, 52 Cal. 479; People v. Monaghan, 102 Cal. 229, 36 Pac. 511; Shaw v. State, 17 Tex. App. 225; State v. Cunningham, 94 N. C. 824; Davis v. State, 38 Wis. 487.)

The state undertook to prove that the horses were stolen in pursuance of a conspiracy entered into between Jack Edmis-ton, Prank Smith and defendant. During the trial witnesses were allowed to testify to statements made by E'dmiston and Smith. Defendant objected to much of this testimony, and excepted to- the rulings of the court thereon. As this case must be remanded for a new trial, it is unnecessary to- discuss such alleged errors. The trial court was mindful of the rule that evidence of what was said and done by defendant’s co-conspirators must be confined to their acts and declarations made and done while the conspiracy was pending, and in furtherance of it, and will doubtless again apply it upon another trial.

At tbe conclusion of tbe state’s case tbe defendant moved ' to strike out all of tbe testimony with reference to tbe O D borses, on tbe ground that tbe state bad not proved tbe ownership of such borses. Tbe court overruled tbe motion. We have examined tbe record, and think tbe motion should have been sustained. No one testified that tbe O L borses described in tbe information were tbe property of George Houk. Houk does not seem to have been present at" tbe trial. Tbe witnesses Wagner and Fox testified that they saw O' L borses in the herd driven away by Edmiston and Smith, and said they knew tbe O' L brand, and that it belonged to George Houk. Tbe fact that tbe O L brand belonged to Houk, and that tbe borses bore such brand, was not proof that they belonged to Houk at tbe time they were driven away, or that defendant was not rightfully in possession of them. Tbe allegation that tbe borses were tbe property of George Houk was material, and it was incumbent upon tbe state to prove it beyond a reasonable doubt.

At tbe close of tbe state’s case tbe defendant moved tbe court to discharge tbe jury on tbe ground that there was a variance between tbe venue as laid in tbe information and tbe proof.

Tbe state proved that tbe Bar A P Bar borses were stolen in the Dominion of Canada, near tbe Montana line, and were then driven to Great Falls, in Cascade county, Montana, where they were disposed of. Defendant contends that when a larceny is committed outside of the local jurisdiction of a county, but is triable therein, “the facts showing where tbe larceny was committed should be stated in tbe body of tbe information.” No contention is made that tbe offense is not triable in Cascade county, nor does it seem that such contention could be sustained under tbe provisions of Sections 1561, 1569 and 1572 of tbe Penal Code. These sections read as follows:

“Sec. 1561. When tbe commission of a public offense, commenced without tbe state, is consummated within its boundaries, tbe defendant is liable to punishment therefor in this state though be was out of tbe state at tbe time of tbe commission of tbe offense charged. If be consummated it in this state, through the intervention of an innocent or guilty agent, or any other means proceeding directly from himself, in such case the jurisdiction is in the county in which the offense is consummated.”
“Sec. 1569. When property taken in one county by burglary, robbery or larceny, has been brought into another, the jurisdiction of the offense is in either county. But if at any time before the conviction of the defendant in the latter, he is indicted in the former county, the sheriff of the latter county must, upon demand, deliver him to the sheriff of the former.”
“Sec. 1572. The jurisdiction of a criminal action for stealing in any other state the property of another, or receiving it, knowing it to have been stolen, and bringing the same into this state, is in any county into or through which such stolen property has been brought.”.

Under these statutes, one who commits larceny may be convicted of that crime in any county into which he takes the stolen property, on the theory that, “since larceny consists of any as-portation of the goods of another through trespass by one who simultaneously means to- steal them, the complete offense is committed in every locality in which such asportation, trespass and attempt to steal occur.” (Bishop’s Directions & Forms, Sec. 607; State v. Kief, 12 Mont. 92, 29 Pac. 654, 15 L. R. A. 722.)

Under a section similar to 1569, supra, it has been repeatedly held that informations for larceny should lay the venue in the county in which the offense is to be tried. It is- unnecessary to refer to' the place in which the stolen property was originally taken, or to allege what took place therein. Such matter is evidentiary, and may be proved without an allegation of prior jOjeeurrences. (Haskins v. People, 16 N. Y. 348; State v. Brown, 8 Nev. 208; People v. Mellon, 40 Cal. 648; People v. Scott, 74 Cal. 94, 15 Pac. 384; People v. Staples, 91 Cal. 23, 27 Pac. 523.)

The defendant says that Subdivision 4 of Section 1841 indicates a different procedure. The language relied on is: “The information is sufficient, if it- can be understood therefrom: (4) That tbe offense was committed at some place witbin the jurisdiction of the court, except where the act, though done without the local jurisdiction of the county, is triable therein.” This does not .refer to larceny, because in a case like the present the act was committed within, as well as without, the local jurisdiction of the county. The subdivision supra undoubtedly applies to the two other crimes — burglary and robbery— mentioned in Section 1569, supra, because those offenses are not continuing offenses, as larceny may be. They are necessarily completed at some certain place and time, being essen'tially local offenses. If property be taken by burglary in one county and brought into another, the jurisdiction of the offense of burglary is in either county, but the act of burglary is ordinarily consummated in one county only. Bringing the property into the other county gives that county jurisdiction.. (Haskins v. People, supra; People v. Scott, supra.)

The defendant insists that several of the instructions are erroneous. In No. 5 the jury was told: “If you shall believe from the evidence, beyond all reasonable doubt, that the said defendant, Percy De Wolfe, in conjunction with the said Jack Edmiston, or by himself, at the county of Cascade and state of Montana, and on or about the 25th day of October, 1900, did then and there willfully, unlawfully and feloniously steal, take and carry away thersaid horses described in the information, belonging to the said Albert Lindquist, and branded Bar A P Bar on the left thigh, and the said nine head of horses branded O L on the right shoulder, being the property of one George Ilouk, or any of said horses, and the said defendant then and there having the intent to willfully, unlawfully and feloniously deprive the said owner or owners of their said property, it will be your duty to find the defendant guilty as charged in the information.” Als we have previously observed, there was no evidence whatever concerning the ownership of the 0 L horses, and the court should not have referred to them in this instruction. This same criticism is applicable to instruction No. 13.

In instruction No. Y tbe court correctly told tbe jury that “in tbis state tbe distinction between an accessory before tbe fact and tbe principal, and between principals in tbe first and second degree, in cases of felony, is abrogated; and all persons concerned in tbe commission of a felony, whether tbey directly commit tbe act constituting tbe offense, or aid and abet in its commission, though not present, must be prosecuted, tried and punished as principals, and no other facts need be alleged or proved under an information against such accessory than are required under an information against bis principal,” and then gave tbe jury instruction No. 8, which reads: “You are instructed that an accessory to tbe commission of a felony may be prosecuted, tried and punished, though tbe principal may be neither prosecuted nor tried.” Instruction No. Y is practically in tbe language of Section 1852 of tbe Penal Code. Tbe words “such an accessory,” as used in that section, clearly refer to tbe words “an accessory before tbe fact,” used in tbe opening sentence thereof.

Instruction No. 8 is a quotation from Section 1854 of the Penal Code, which manifestly refers to an accessory after tbe fact, as tbe term was formerly employed. We find by reference to Section 40 of tbe Penal Code that tbe parties to crimes are classified as principáis and accessories. Section 41 defines who are principals, while Section 42 prescribes “that all persons who, after full knowledge that a felony has been committed, conceal it from tbe magistrate, or harbor or protect tbe person charged with or convicted thereof, are accessories.” It thus appears that accessories to crime are still recognized as punishable under our law, but tbe accessories referred to in tbe statute are accessories after tbe fact. Accessories before tbe fact are treated as principals. There was no evidence whatever upon which to base instruction No. 8. If,tbe defendant was guilty at all, be was guilty as principal. .It was not pretended that be either concealed tbe crime from a magistrate, or harbored or protected any person - charged with, or convicted thereof. Instructions must be warranted by tbe evidence. (Yoder v. Reynolds, 28 Mont. 183, 72 Pac. 417, and cases cited.)

The impropriety of giving instruction No. 8 becomes more apparent when we consider that the defendant was tried for grand larceny, which is punishable by imprisonment in the state jorison for not less than one nor more than fourteen years (Section 885, Penal Code), while, “except in cases where a different punishment is prescribed, an accessory is punishable by imprisonment in the state prison not exceeding five years, or in a county jail not exceeding two years, or by fine not exceeding five thousand dollars.” (Section 43, Penal Code.)

It is probable that the jury was not misled by instruction No. 8, for the reason that the only “accessory” the instructions informed them of was the “accessory before the fact” mentioned in instruction 7; but as the matter is before us for review, and as the case is to be remanded, it is proper to call attention to the distinction between Sections 1S52 and 1854, supra, to the end that errors with reference to them, may be avoided in the future.

Instruction No. 20 reads, “If you believe that any witness who has testified in this case has willfully and intentionally testified falsely as to any material matter in the case, ■ the jury have a right to disregard any or all of the testimony of such witness.” Defendant says the court should have added thereto the words “except in so far as it is corroborated by other credible evidence,” and in this we think he is correct, under the former decisions of this court. Section 3390, Code Civil Procedure, which is applicable to this case, prescribes that the jury are to be instructed by the court, on all proper occasions, “that a witness false in one part of his testimony is to be distrusted in others.”

In Cameron v. Wentworth, 23 Mont. 70, 57 Pac. 648, the court said: “It is undoubtedly the rule that, where a witness has willfully sworn falsely as to any material matter upon the trial, the jury is at liberty to. discard his entire testimony, except in so far as it has been corroborated by other credible evidence.” And again, commenting on Section 3390, it is said: “As a statute affecting the province of the jury in weighing evidence, it requires them to view with distrust the testimony of a witness who willfully swears, falsely as to a material matter. They must distrust such a witness, and, under their general power of passing upon the credibility to be attached to each witness, they may disregard such testimony entirely, except in so far as it is corroborated by other credible evidence. People v. Durant, 116 Cal. 179, 48 Pac. 75.” The same rule is announced in Bonnie v. Earll, 12 Mont. 239, 29 Pac. 882.

At the beginning of the trial the county attorney requested that Mr. W. G. Downing be entered as associate counsel for the state. This the court permitted over defendant’s objection. After some discussion upon another point, the court said: “I believe I will require Mr. Downing to state upon what basis he appears in this case, and let the record show it,” to which that gentleman replied, “If the court please, I have been employed by the state board of stock commissioners in this case.” Upon this state of facts, the court gave the jury instruction No. 1, which reads as follows: “The jury are further instructed that, under the provisions of the statutes of this state, it is the duty of the board of stock commissioners to exercise a general supervision over, and, so far as may be, protect the stock interests of the state from theft and disease; and they may take all necessary and lawful steps, procure all necessary and proper process for the attendance of witnesses, and employ counsel to assist in the prosecution of any person; and it is further made the duty of the board of stock commissioners, when necessary, to- assist the prosecution of any person guilty of any offense against the laws of this state, in feloniously branding or stealing any stock or any other crime, or misdemeanor, under any of the laws of the state for protection of the rights and interests of stock owners.”

The right of Mr. Downing to appear was a question of law for the court, and was a matter with which the jury had nothing to do-. There was no evidence before them that he was employed by the board of stock commissioners. His statement was to the court, and before the jury was impaneled. This instruction, therefore, is not based upon any evidence in tbe case. But it is objectionable from any point of view. Tbe jury were told that it is tbe duty of tbe board of stock eommissoners to employ counsel to assist tbe prosecution of any person guilty of any offense against tbe laws of tbe state in feloniously branding or stealing any stock. In effect, tbe instruction told tbe jury that tbe gentlemen comprising tbe board, of stock commissioners bad satisfied themselves that tbe defendant was guilty of tbe crime charged in tbe information, and therefore bad employed counsel to assist in tbe prosecution.

We do not find any merit in any of tbe other alleged errors pointed out by defendant.

Nor tbe foregoing reasons, we are of tbe opinion that tbe judgment and order should be reversed, and tbe cause remanded for a new trial.

Pee, GueiaM.

For tbe reasons given in tbe foregoing opinion, tbe judgment and ,order are reversed, and tbe cause remanded for a new trial.

Me. Justice MilbuRN:

I concur specially. I do not agree with what is said in tbe opinion in regard to what it is necessary to allege in the information, and prove on tbe trial, when a party' is to be charged .with larceny under tbe provisions of tbe statute making it larceny, under tbe law of Montana, to bring into and have in tbe state of Montana property stolen without tbe state. I believe, in such a case, that the information should pursue tbe language of the statute, and recite the facts necessary to bring it within tbe provisions of tbe statute; one important one being that tbe property was stolen outside of Montana.

Tbe case of State v. Kief, 12 Mont. 92 (29 Pac. 654, 15 L. R. A. 722), cited in tbe opinion, is not authority for any other conclusion. At page 98 of that case tbe court cites Mr. Bishops tbe learned writer saying: “Where, as in some states, there is a statute on tbe subject, its terms will, of course [italics mine. G. R. M.], if it is tbe foundation of tbe proceeding, be pursued.” Tbe indictment in tbe Kief Case, as tbe court states ofter tb© citation from Mr. Bishop', alleged tbat Kief “did feloniously steal, take and carry away” tbe property of one Mitcbell, witbin tbe Dominion of Canada, and bring tbe same into tbe county of Dawson, in tbe state of Montana.

My belief is tbat tbe conclusion of tbe court tbat it was not necessary to> show tbat tbe taking in tbe foreign state or country was unlawful is erroneous and illogical. I say tbis respectfully, and witb less hesitation tban I otherwise would, when I consider tbat tbe court said, •‘'We confess that tbe authorities cannot be reconciled, and tbat tbe question is environed by extreme difficulties;” and further when I find in tbe opinion several quotations from courts of high standing contra to tbe conclusion reached.

The short dissenting opinion of Mr. Justice De Witt in tbe Kief Case is better supported on principle and by authority, in my opinion, tban that of tbe majority of tbe court. Tbe contention of tbe appellant in tbe ease before us is stronger tban tbat of tbe respondent in tbe case of State v. Kief, for tbe reason tbat tbe indictment against tbe respondent in tbat case was drawn witb actual reference to tbe language of tbe statute, and all of it, whereas tbe information in tbe case at bar simply states tbat tbe property was stolen, taken and carried away in tbe county of Cascade.

Not being satisfied witb tbe correctness of tbe views expressed in the opinion in tbis case upon tbe subject referred to, I dissent as to them; being inclined to the1belief tbat the contention of tbe appellant as to tbe information and tbe insufficiency of tbe proof under it is correct.