author: PIP. JUSTICE PIGOTT

text:
    CHARLES SCHATZLEIN PAINT COMPANY, Respondent, v. PASSMORE, Appellant.
    (No. 1,404.)
    (Submitted March 4, 1902.
    Decided May 12, 1902.)

      Appeal — Time — Jurisdiction — Order Denying New Trial— Question Considered — Error Without Prejudice — Jury— Weight of Evidence.

    1. under Code oí Civil Procedure, Sec. 1723, Subd 2, as amended by Laws of 1899, p. 147, providing that an appeal may be taken within ninety days from a judgment of the district court rendered on an appeal from an inferior court, an appeai taken more than ninety days after the entry of such judgment will be dismissed for want of jurisdiction.
    2. under Code of Civil Procedure, Sec. 1170, declaring a new trial to be a re-examination of an issue of fact in the same court after a trial and decision, and Section 1171, Subd. 7, authorizing a new trial for an error of law occurring at the trial, duly excepted to and materially affecting the substantial rights of the moving party, the point that the complaint fails to state facts sufficient to constitute a cause of action, made by demurrer, which was overruled before the trial, and not renewed or otherwise presented at the trial, cannot be considered on an appeal from an order denying a new trial.
    3. An order denying a new trial should not be reversed because of inaccuracy in the instructions which clearly did not result in prejudice to the complaining party.
    4. The supreme court will not reverse an order of the district court denying a new trial, though the evidence, as it appears in type, seems to preponderate against the verdict, since the weight of the evidence was for the jury.

      Appeal from District Court, Silver Bow County; John Lind^ say, Judge.

      AotioN by the Charles Sehatzlein Paint Company against C. S. Passmore, doing business as Passmore & Co. Prom a judgment for plaintiff, and from an order denying a new trial, defendant appeals.
    Appeal from judgment dismissed, and order denying newr trial affirmed.

      Mr. Robert McBride, for Appellant.
    The complaint does not state facts sufficient to constitute a cause’of action. It is a settled rule of pleading that performance by plaintiff: of conditions precedent must be alleged. (4 Enc. PI & Prac. 628, and cases cited; Loup v. Cal. 8. Ry. Co.,-63 Cal. 97; Holmes v. Richet, 56 Cal. 307; Cox v. McLaughlin, 63 Cal. 196; 4 Enc. PL & Prac. Sec. “c,” page 643; 29 Enc. Law, page 926.')
    It is true that upon defendant’s demurrer being overruled, an answer was filed; but we do not understand that by so doing defendant waives his objection that the complaint does not state a cause of action and will not support a judgment. The objection that the complaint does not state facts sufficient to constitute a cause of action may be raised for the first time on appeal. (No. 685, Code of Civil Procedure; Bohn v. Dunphy, 1 Mont. 340; Territory v. Virginia- Road Co., 2 Mont. 96; Gillette v. Hibbard, 3 Mont. 413; Parker v. Bond, 5 Mont. 1; Foster v. Wilson, 5 Mont. 53; Quirlc v. Clark, 7 Mont. 108; Whiteside v. Lebcher, 7 Mont. 473-477; Raymond v. Wmcelie, 12 Mont. 551.)
    A general demurrer is not waived by consenting that it may be overruled. (Evans v. Gerken, 38 Pac. (Cal.) 725.) There being an entire absence of a material allegation, the defect is not cured by a verdict in plaintiffs favor. (Richards v. Insurance Cok, 22 Pac. (Cal.) 939; see, also, 4 Ency. PL & Prac. page 667, and cases cited; Id., page 629; Daley v. Russ, 86 Cal. 114, 24 Pae. 868; Jerome v. Stebbms, 14 Cal. 457.)

      Mr. Wnn. E. Carroll, for [Respondent.
   PIP. JUSTICE PIGOTT

delivered tlie opinion of the court.

These are appeals by the defendant from the final judgment entered against him and an order denying his motion for a new trial.

1. The action u as commenced in the court of a justice of the peace', where a judgment was rendered. From that judgment an appeal was taken to the district court, where, upon a trial de novo-, the present judgment was given and entered on October 28, 189S. Notice of appeal therefrom to this court was served on April 20, 1899, and filed on April 22, 1899. Subdi visit n 2 of Section 1123 of the Code of Civil Procedure", as amended in 1899 by House Pill No. 124 (Laws of 1899, page 140), provides that an appeal may be taken to the supreme court from a final judgment of a district court rendered on an appeal from an inferior court within ninety days after the entry of such judgment. The appeal from the judgment, not having been taken within ninety days after its entry in the district court, must, upon our own motion, be dismissed for want of jurisdiction to entertain it. (Morris v. McLaughlin, 25 Mont. 151, 64 Pac. 219; Warren v. Humble, 26 Mont. 495, 68 Pac. 851; Madigan v. Harrington, 26 Mont. 358, 67 Pac. 1121; Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447.) Whether Section 1724 of the Code of Civil Procedure requires the notice of appeal to be filed and served on the same da}7 is a question reserved. ■

2. There remains for consideration the appeal from the order refusing a new trial. It is contended that the, complaint fails to state facts sufficient to constitute a cause of action. This point was made by demurrer, which was overruled before the trial of the issues of fact, and the objection raising this point was not renewed or otherwise presented during the trial. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees. (Section 1170, Code of Civil Procedure.) One of the causes for which, on application of the party aggrieved, the verdict or oilier decision may be vacated and a new trial granted, is an error in law occurring at the trial, duly excepted to by him and materially affecting’ his substantial rights. (Subdivision 7, Sec. 1111, Code of Civil'Procedure.) If the court was wrong in overruling the demurrer, the error did not occur at the trial, and cannot be reached by the motion for a new trial. It could properly be presented on appeal from the judgment, but, as that attempted appeal must be dismissed, we are precluded from inquiring into the sufficiency of the complaint.

3. The other' specifications of error we have examined. After a careful consideration of the entire record, we are of the opinion that no one of them is meritorious. The instructions of which complaint is made are doubtless open to objection on the score of inaccuracy, but it is clear that error prejudicial to the defendant did not result therefrom. With respect to the verdict, we observe that while the evidence, as it appears in type, seems to- preponderate in favor of the defendant,- it was nevertheless sufficient to justify the verdict- against him. The weight of the evidence was for the jury.

The attempted appeal from the judgment- is dismissed, and the order denying a new trial is affirmed. Let remittitur issue forthwith.


source: Caselaw Access Project

author: MR. JUSTICE MILBURN

license: Public Domain

text:
    STILLINGER Appellant, v. PABLO et al., Respondents.
    (No. 1,438.)
    (Submitted April 14, 1902.
    Decided May 12, 1902.)

      'Appeal from District Court, Missoula, County; F. 77. Woody, Judge.

    ActioN by Charles A. Stillinger against Michael Pablo and another, as executors of Charles Allard, deceased. Prom a judgment of nonsuit, plaintiff appeals.
    Affirmed.

      Mr. 8. G. Murray, and Mr. L. J. Knapp, for Appellant.

      Messrs. Marshall & Stiff, for Respondents.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

In this cause, after the testimony on the part of the-plaintiff was concluded, the court granted, a motion of the defendants for a, nonsuit, and rendered and caused to be entered judgment in favor of defendants dismissing the action and for costs. The plaintiff has appealed.

The cause was submitted to this court on briefs, without oral argument. We have carefully examined the record on appeal, and folly considered the briefs of counsel. We do not discover any error of the court prejudicial to the appellant. The order granting the plaintiff a nonsuit was properly granted, and the judgment is therefore affirmed.

Affirmed.


author: ME. CHIEF JUSTICE BRANTLY

text:
    STATE, Respondent, v. DEMPSEY, Appellant.
    On Motion to Dismiss Appeal.
    (No. 1,809.)
    (Submitted May 19, 1902.
    Decided May 26, 1902.)

      Criminal Lcm^ — Appeal—Escape—Absence from Jurisdiction.

    . Where one convicted of murder appealed, and thereafter escaped and fled beyond the jurisdiction of the court, the appeal should be dismissed on condition that, if he surrender himself within a stated time, the appeal would bo reinstated.

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

    Petee, Dempsey was convicted of murder, and appeals.
    Appeal dismissed conditionally.

      Mr. Thomas A. Morrin, for Appellant.

      Mr. James Donovan, Attorney General, for the State.
   ME. CHIEF JUSTICE BRANTLY

delivered tbc opinion of tbe court.

■ The defendant was convicted of murder of the first degree, and condemned to death. He thereupon appealed to this court from the judgment of conviction, and from an order denying him a new trial. Pending his appeal he was confined in the jail of Silver Bow county, the place of his trial, but escaped therefrom, and, is, now beyond the jurisdiction of this court. The attorney general, having shown the fact of the defendant’s escape and absence from the jurisdiction, has submitted a motion asking that the appeal be dismissed.

The rule is well settled that an appellate court will refuse to hear an appeal in a criminal case unless the appellant is within the jurisdiction, either by being in actual custody, or under bail for his appearance to abide further orders in the case when the remittitur issues to the trial court. The reason of the rule is well stated in Commonwealth v. Andrews, 97 Mass. 543, as follows: “The defendant, by escaping from j ail, where he was held for the purpose of prosecuting these- exceptions and abiding the judgment of the court thereon, has voluntarily withdrawn himself from the jurisdiction of the court. He is not present in person, nor can he be heard by attorney. A hearing -would avail nothing. If a new trial should be ordered, he is not here to answer further; if the exceptions are overruled, a sentence cannot be pronounced and executed upon him. The attorney general has a right to ask tliat lie should be present to receive the judgment of the court. (1 Chit. Cr. Law, 663 ; Reg. v. Caudwell, 17 Q. B. 503.) So far as the defendant has any right to be heard under the constitution, he must be deemed to have waived it by escaping from custody and failing to appear and jjrosecuto his ‘exceptions in person, according to the order' of court under which he was committed.” The cases in which the courts have adopted and applied the same rule are numerous. The following are in point: McGowan v. People, 104 Ill. 100, 44 Am. Rep. 87; Gentry v. State, 91 Ga. 669, 17 S. E. 956; Smith v. U. S., 94 U. S. 97, 24 L. Ed. 32; Hamilton v. State (Tex. Cr. App.), 23 S. W. 683; State v. Sites, 20 W. Va. 13; People v. Redinger, 55 Cal. 290, 36 Am. Rep. 32; State v. Handy (Wash.), 67 Pac. 1094; Woodson v. State, 19 Fla. 549.

In People v. Genet, 59 N. Y. 80, 17 Am. Rep. 315, the defendant, having been convicted of felony, escaped from custody, •and was a fugitive from justice. When he escaped, there ivas pending on his behalf an application to the trial court for settlement of his proposed bill of exceptions. The court declined to consider the application, on the ground that the defendant was at the time “a fugitive at large, and beyond the control and without the power of the authorities of this stale; he having made his escape and absconded from their custody after his conviction, and while 'awaiting the action of the court upon it.” Upon application to the supreme court for mandamus to compel a settlement, the writ was refused. The appellate court, in affirming the order, said: “When a person charged with felony has escaped out of custody, no order or judgment, if any should be made, can be enforced against him; and courts will not give their time to proceedings which, for their effectiveness, must depend upon the consent, of the- person charged with crime. The fact that in this slate the law allows proceedings on writs of error without requiring the actual presence of the criminal in court does not at all conflict with the view that steps will not be allowed to be taken on his behalf when he is no longer in custody or on bail, but has tied, from the custody of the law. His presence in court is necessary when he is to be tried, or when some sentence or judgment involving.his corporal punishment is to be pronounced. His being in custody is necessary to any step for or against him, except such as may be taken to bring him again into custody. All the cases which consider the question seem to concur in the view that an escaped prisoner cannot take any action before the court.”

In some cases the courts have, on motion, peremptorily dismissed the writ of error or appeal. The prevailing rule seems to be, however, not to make the order of dismissal final until the defendant lias had an opportunity to surrender himself to the proper custody a.nd submit- to the jurisdiction of the court. We adopt this as the better rule, and direct the following order to be entered: It is ordered that the appeal stand dismissed, provided that, if the defendant returns to the jurisdiction and delivers himself to custody on or before August 4th next, the appeal may be reinstated. The remittitur will be withheld until that date. ,


author:
ME. JUSTICE PIGOTT
      Me. Ciiiee Justice BeaNtlt: Mr. Justice MiiburN:

text:
    In re WEED.
    (No. 1,744.)
    (Submitted March 28, 1902.
    Decided May 26, 1902.)

      Attorneys — Disbarment—Deceit—Malpractice.
    1. An -attorney-at-law who, after having- entered into a contract to sell land to a third party, and after having received a part of the purchase price, deeded the land to- a mortgagee thereof, the latter having threatened foreclosure, and having no knowledge of the agreement to «ell, and who afterwards, notwithstanding that he had thus parted with all title, accepted further payments on t'he contract from the third party, without informing him of the actual situation, and later falsely representing to him that the title was involved in an estate in another state, hut that he would be able soon to convey, was guilty of acts neces-. sarily involving deceit, and, though a criminal prosecution was barred by lapse of time, was liable to disbarment proceedings.

      2. An Attorney-at-law who, having1 been employed to collect claims against a corporation, falsely represented to his client’s attorney in fact that the corporation was settling- on a basis of 50 per cent, only, and that he would retain 10 per cent, as his fee, and obtained authority to settle on such terms, and who, notwithstanding, collected 75 per cent, on one claim and 60 ner cent, on another, and turned over to the attorney in fact only 45 per cent, of each claim, and afterwards permitted judgment to go against him by default for the balance, taking no steps to have it set aside, was guilty of malpractice and deceit as an attorney, and liable to disbarment proceedings.
    3. In disbarment proceedings^ the institution and conclusion of a criminal action against the accused is not always essential as a prerequisite to an investigation by the supreme court of matters constituting a felony.
    PROCEEDINGS foi' tlie disbarment of Elbert D. Weed, as attorney.
    Judgment of suspension entered.

      Mr. N. TP. McConnell, for Accused.

      Mr. James Donovan, Allorney General, amicus curiae.

   ME. JUSTICE PIGOTT

delivered tlie opinion of tlie court.

Disbarment. Original. This is a proceeding for tlie disbarment of Elbert D. Weed, Esquire, instituted on November 23, 1901. On January 13, 1902, objections to tlie several accusations were sustained, with leave to amend tlie petition and attach proper verifications within 20 days. (In re Weed, 26 Mont. 241, 67 Pac. 308.) An amended petition was filed on January 23, to which the accused answered by filing objections to the sufficiency of each accusation. His objections to the first four accusations, being without merit, were overruled. The objections to the fifth and last accusation were sustained, and that accusation dismissed. An answer to the merits was filed on February 18, 1902, and on March 2Y and 28 the cause was tried by the court.

1. We are not satisfied with the truth of the material allegations constituting; the fourth accusation, and therefore dismiss it as not proved. There remain for consideration three accusations.

2. The first accusation charges the accused with the commission of acts necessarily involving deceit (whether the deceit was an independent crime wo do not decide), and also a violation of Section 200 of tbe Fourth Division of the Compiled Statutes of 1887. Briefly stated, the averments are these: On December 7, 1894, Weed, who then was, ever since has been, and now is, an attorney and counselor of this court, entered into a written contract of sale with one Mayer, whereby, “for and in consideration of $125.00 paid by said Mayer to said Weed, the latter agrees to’ and with said Mayer to sell and convey eighty (80) acres of land in a square tract off the southwest corner of the southeast quarter (%) of section 7, T. 11 N., E. 3 W., at the rate of ten dollars per acre, to be paid as follows: $125.00 down, the receipt whereof is hereby acknowledged; $200.00. on or before January 15, 1895; $175.00 on or before March 1, 1895; $300.00' oar or before December 1, ’95.” This contract was not recorded. Weed was then the owner in fact, as well as by the record, of the land, which lies in Lewis raid Clarke county, Montana. On or about April 17, 1895, Mayer paid to Weed $200 as part of the purchase price, which should have been paid on January 15, and the further sum of $175 as the installment which was due on March 1, 1895. Before these payments were made; and on April 2, 1895, Weed, well knowing that he was not, and would not be, able to convey title to Mayer, knowingly, and with intent to defraud Mayer, and feloniously, for a valuable consideration, granted to one Luther F. Smith, by deed of conveyance of that date, the land already sold to Mayer, which deed to Smith was duly recorded on April 15, 1895. At the time of the grant to Smith, Mayer was not residing on the land, nor was there anything to put Smith c-n notice that any person other than Weed had an interest in it. The deed to Smith invested* him with the fee-simple legal title, without any reservation or exception whatever; and thereafter Weed had no interest in the land, nor contract by which he could ever obtain title to it. Weed did not inform Mayer that he intended to grant, or that he had granted, the land to Smith, and did not notify Smith that he had theretofore agreed to sell to Mayer. Because of his implicit confi-' deuce,in the integrity of Weed, Mayer omitted to examine tlie records to ascertain tire condition of the title. The transfer to Smith was falsely and fraudulently made with intent on Weed’s part to defraud Mayer of the land and of the money he had paid upon the contract. Weed knowingly and fraudulently concealed from Mayer the fact of the transfer to Smith, with the deliberately planned purpose and intent to cheat and defraud Mayer and induce l:im to pay the remainder of the purchase price, and thus to defraud him of all payments which he might thereafter make. Weed was and is utterly insolvent. In August, 1895, Mayer tendered to Weed the remainder of the purchase price, and demanded a deed, but Weed then and afterwards falsely and fraudulently stated to Mayer that he could not at the time comply wilh the demand, for the reason that the title was involved in an estate in Wisconsin, in which several minor heirs were interested, but expected to make title in a few days. Mayer did not learn of the transfer to Smith until September, 1901, when the daughter and grantee of Smith demanded possession of the land. Since April 2, 1895,- Weed has been a stranger to the title. He is unable to convey to Mayer, has had no control over ¡he land, and no means or device whereby he could or can obtain title. The statutes of limitation bar any criminal action against Weed. lie refuses to reimburse Mayer or. return the money received, but offers a note for $250 in full satisfaction.

By his answer the accused denies that any of the sums paid by Mayer were paid after April 2, 1895; denies every allegation of fraud and deceit; pleads that at the time the contract was made the land was mortgaged to Luther F. Smith, a resident of Wisconsin, which mortgage' was of record, and that the accusesd explained fully to Mayer at the time the fact of the incumbrance, and that Mayer accepted the contract subject to the mortgage; that he at all times expected, and still expects and intends, to discharge the mortgage, and to execute a deed to Mayer conveying a perfect title upon payment of the remainder owing by the latter; that subsequently, and on April 2, 1895, without his fault, and on account only of depreciation in values, and business reversals beyond his control, the accused was unable to pay the amount secured by the mortgage when it became due, which was prior to the 1st day of April, 1895, and Smith, being about to begin a suit to foreclose, the accused, under compulsion of the threatened suit, and only to save the expense thereof, was compelled to give to Smith a deed to the land and other lands covered by the mortgage ; that at the time of the execution of the deed there was a full, complete, and binding agreement between Smith and the accused, by the 'terms of which Smith was to reconvey to the accused upon payment of the amount which might then be due from him to Smith.

At the trial the following facts were either admitted or proved beyond a reasonable doubt to exist: In 1884 the accused made liis interest-bearing note to Smith for $4,400. Payment of this note was secured by a mortgage made by the accused of certain lands owned by him, including the 80 acres afterwards contracted for by Mayer. The mortgage was of record. On December I, 1894, the contract between Weed and Mayer was entered into, and $125 paid down by Mayer. A few'months thereafter, on April 2, 1895, Weed conveyed by deed of bargain and sale to Smith the foil legal title to all the land mortgaged, the deed Doing silent as to the contract with Mayer. The negotiations for a settlement were carried on between Smith’s counsel at Helena and Weed, and covered a period of several rears. These finally resulted in an agreement whereby, in satisfaction and discharge of the mortgage, Smith was to take the property at a valuaxion of $8,100, and a note of the accused for $3,300, — the debt then amounting to $6,400. The accused was hopelessly insolvent. In the language of Smith’s counsel: “The amount was a large amount of money, something over $6,000. It'liad been running for ten years, and every one was very anxious to have it settled up. You [the accused] and I had numerous meetings and negotiations, covering a long period of time, possibly three or four years; and finally the best we could do was to have the property appraised, and give you credit for the amount so fixed, and you give a new note for the balance. * * * My recollection is that it was rather a hopeless proposition, and you were obliged to give a note for $3,300 over and above this, credit [of $3,100 represented by the land].” Pursuant to this arrangement, the deed of April 2, 1895,-was made, and a note for $3,300 given to Smith. The accused never informed Mayer that he intended to convey, or had conveyed, the lrmd to Smith; nor did Smith’s counsel or Smith ever hear of the Mayer contract, the accused preserving silence in respect of it. The deed was recorded on April 15, 1895. On the 17th, 18th, or 19th of the same month Mayer paid to the accused personally the installments, of the purchase price due in January and March, amounting to $375, aiid at the same time paid to him $8.60 as interest at the rate of 12 per cent, yearly thereon from the times when these several payments should have been made to April 15. Mayer did not learn of the deed to Smith until September, 1901, when Smith’s daughter, who was then and is now the owner of the land, dispossessed Mayer. The latter, deeming himself the owner, had been in possession since April, 1895, and had made permanent and valuable improvements. In August, 1895, and subsequently, on different occasions, Mayer offered to pay to the accused the remainder of the purchase price upon receiving a good title; but the accused falsely stated that because Smith was dead and his estate involved in the Wisconsin courts, or because there were several minor heirs of Smith (the accused testifying to the giving of the former, and other witnesses to the giving of ihe latter, reason), he was unable immediately to make a deed to the land, though he was willing to receive from Mayer the last installment of the purchase price, assuring Mayer that he “expected to have everything in shape in a few days to make your title good.” The accused repeated these false excuses, which Mayer believed, as late as the summer of 1899. At no time prior to February 19, 1902, which was after the amended petition in this proceeding was filed, did he have any agreement with, or option from, Smith or Smith’s successor in interest, under which he had the right or privilege of repurchasing the land. His assertion to- the contrary is, according to the only reasonable inferences to be drawn from his own testimony, manifestly an afterthought, and wholly false. He admits that he did not disclose to Mayer the fact of the deed to Smith having been made, and he assigned false reasons why he could not convey title to Mayer. He has never paid, in whole or in part, the money received from Mayer.

In the foregoing statement we have not attempted to detail all the items of evidence which tend to prove the accused guilty of the felony and of the deceit charged in the first accusation. We have contented ourselves with a recitation of some of the most salient conclusions of fact necessarily deducible from the evidence. That he knowingly and fraudulently sold the land to Smith for a valuable consideration after he had executed the agreement for its sale to Mayer was proved beyond a reasonable doubt. That he .practiced a deceit upon Mayer in receiving the $383.60, after he had parted with every shred of title to the land, is as clear as any fact, not susceptible of mathematical demonstration, can possibly be. A criminal action under Section 200, supra, is barred by lapse of time; but this does not preclude an investigation by the courts into the moral fitness of a counselor at law to remain a member of the most honorable and useful of the learned professions. If the accused could be prosecuted criminally under the provisions of Section 200, supra, we should, of course, refase (in so far as the matters constituted a public offense) to entertain jurisdiction of the first accusation, — which charges a felony, and also gross misconduct, involving moral turpitude, in matters not pertaining to the office of counselor, — until the usual powers of trial courts of criminal cognizance had been invoked. (In re Wellcome, 23 Mont. 140, 213, 58 Pac. 45.) In the present case, however, it would be useless to require, as prerequisite to an investigation by this court of the matters constituting a felony, the institution and conclusion of a criminal action by complaint, information, or indictment, for such an action is barred by tbe statute of limitations. Nor is a previous conviction essential. (In re Wellcome, 23 Mont. 213, and cases cited on pages 225 and 226, 58 Pac. 47; Boston Bar Association v. Greenhood, 168 Mass. 169, 182, 183, 46 N. E. 568; Cowley v. O’Connell, 174 Mass. 253, 53 N. E. 1001, 54 N. E. 558; Delano’s Case, 58 N. H. 5, 42 Am. Rep. 555.)

We find tbe accused guilty as charged in tbe first accusation.

3. Tbe second and third accusations may be considered together. By them the accused is charged with malpractice and deceit as an attorney and counselor. In August or September, 1900, one Angelí and one Schwendinger employed the accused to examine into the matter of the receivership of a certain mining company against which they held claims. They desired to have the order appointing the receiver vacated, so that their demands might be paid out ofi the property of the company. The accused investigated the question and was paid for 'the advice he gave. The claims were left in his hands for collection. In December, 1900, he prepared and caused to be filed, in behalf of his clients, notices of laborers’ liens based upon these claims. In April, 1901, at the request of Angelí and Schwendinger, he drafted powers of attorney appointing one Davis their attorney in fact to collect the demands. In August, 1901, learning that the company was settling the claims against it, he went to Davis and falsely informed him that the company was settling the claims on the basis of 50 per cent, only, that it would not pay mo-re, and that of such amounts he (the accused) would retain 10 per cent, as his fee or commission. Davis authorized him to settle on the terms suggested. Thereupon the accused collected 75 per cent, of the Angelí claim and 66 per cent, of the Schwendinger claim. Tie turned over to Davis 45 per cent, of the face value of each demand, and kept the remainder. Davis and his principals afterwards discovered that the company had paid the accused a greater proportion of the demands. Subsequently Angelí sued the accused to recover the difference between the amount received by him and the amount accounted for. The accused was personally served with summons, made default, and suffered judgment to go against him. The judgment has not .been paid. He testified that he fully intended to defend the action and interpose a counterclaim for professional services, hut had occasion to leave Helena, where the action was pending, and while absent for a few days judgment was taken. He offers no reason why he omitted to move the vacation or setting aside of the judgment. This is but one of the items of evidence tending to prove the charges.

The accused is found guilty of the malconduet alleged in the second and third accusations.

The acts constituting the crime, and the substantive' deceit alleged in the first accusation, were committed seven years ago, although the affirmative deception serving to characterize them was continued until 1899, or even later. The malconduet charged in the second and third accusations may possibly have been the result of a mistaken idea of the accused that his professional duty in respect of the demands had ceased, and that he, as broker, was dealing at arms’ length with the agent of his former clients, and was under no obligation to disclose frankly and fully his knowledge concerning the demands, which he had obtained in virtue of his fiduciary relation. If lie entertained such an idea or belief, it was unsupported by the facts and was without foundation in law or ethics. In view of these considerations, and of the evidence establishing his good reputation for trustworthiness and honesty, we deem it merciful and at the same time just, to impose a penalty less severe than permanent disbarment. The judgment of the court is that the accused, Elbert D. Weed, be, and he is hereby, suspended from his office of attorney and conselor, and deprived of the right to practice as such in the courts of Montana, for the period of two years, to-wit, until the 26th day of May, 1904; at the expiration of which time he may, upon proper petition, supported by satisfactory evidence of good conduct meantime, be restored to his privileges. Let the judgment be entered.

Me. Ciiiee Justice BeaNtlt:

I concur.

Mr. Justice MiiburN:

I concur in tbe result as reached by my associates as to the charge made against Mr. Weed connected with the matter of the sale of real estate to Mr. Mayer. I am much impressed with the force of Me. Justice. Pigott's views and of the decisions and opinions of the other courts which support the position taken by the majority of this court. But I am not convinced that this court may, in this proceeding, find the respondent guilty of a felony without at least an attempt to prosecute him before a court competent to render a judgment of conviction. To find a lawyer guilty of an act involving moral turpitude, the act being felonious, and to mark him as a felon without an attempt at a trial, is not, in my opinion, embraced within the power conferred upon this court by Subdivision 5 of Section 402 of the Code of Civil Procedure. The adjudicated eases of this state have not gone to that extent, as I think. I am not fully satisfied that the said subdivision was intended to confer upon this court the power to adjudge a man guilty of a felony without at least an attempted trial in a competent trial court.

But it is not necessary for me, in arriving at a determination as to my duty in this case, to agree with the courts, that have held views opposed to mine. A careful examination of the record shows that Mr. Weed failed to act with the good faith which should characterize a trustworthy attorney and a member of this bar in relation to the matter of the sale of the said land after he had received the last money which was paid to him by Mr. Mayer. Assuming that the respondent’s intentions, although sadly mistaken, were honest at the time that he made the contract to sell the land, and all along up- to and including the time when he received the last payment of money thereon, one cannot in any wise excuse his behavior toward Mr. Mayer since the date of the last payment. • TIis conduct was one of deception. If he became embarrassed because of the depreciation of the value of real estate and of financial distress, he had a plain and evident duty, to-wit, to disclose to1 liis unfortunate vendee the true circumstances of the case. His failure to acquaint Mr. Mayer with the truth, and his evident purpose to keep him in darkness as to the facts, disclose to me such a want of the true conception of a fair-minded man’s duty to one dependent upon him for the truth, that I cannot avoid the conclusion that the charge as made against him in respect of this matter, so far as it charges him with a want of good faith, is sustained; and for this reason, and for this reason alone, without any finding as to his intent' at the time he contracted to sell tlio property or received the money, I concur in the result as reached by the majority of this court.

I comeur in the opinion! of the court as to the findings, reasons, and conclusion in respect of the other charges upon which the respondent lias been found guilty.


author: The HONORABLE J. B. Leslie, District Judge of tbe Eighth Judicial District, MR. Oihee Justice BraNtly: Mr. Justice Pigott:

text:
    BOARD OF COUNTY COMMISSIONERS OF CUSTER COUNTY, Appellant, v. STORY, Respondent. and BOARD OF COUNTY COMMISSIONERS OF CUSTER COUNTY, Appellant, v. STORY et al., Respondents.
    (No. 1,453.)
    (Submitted April 18, 1902.
    Decided May 26, 1902.)

      Taxation — Personal Action to Collect a Tax — Biatxde of Limitations — Constitution.
    1. Compiled Statutes oí 1887, First Division, Section 42, Subdivision 2, as amended by Laws of 1893, page 50, and Code of Civil Procedure of 1895, Section 520, limit the time for commencing a personal action to collect a tax to two years.
    2. Compiled Statutes of 1887, First Division, Section 42, Subdivision 2, as amended by laws of 1893, page 50, and Code of Civil Procedure of 1805, Section 520, are not in conflict with Constitution, Art. V, Section 30.

      Appeal from District Court, Gallatin County; F. E. Armstrong, Judge.

    ActioN by tbe Board of County Commissioners of Ouster County against Nelson Story, and action by tbe Board of County Commissioners of Custer County against Nelson Story and Walter D. Story. By agreement of tbe parties the causes were consolidated' and tried together. From judgments for defendants, plaintiff appeals.
    Affirmed.

      Mr. C. B. Nolan, and Mr. James Donovan, Attorney General, for Appellant.

      Mr. A. J. Campbell, for Respondents.
   The HONORABLE J. B. Leslie, District Judge of tbe Eighth Judicial District,

silting in tbe place of Mr. Justice Milburn, delivered tbe opinion of tbe court.

These actions were instituted against tbe defendants in the-district court of Custer county on tbe 6th day of August, 1897. Subsequently a change of venue was ordered by said court to tbe district court of Gallatin county.

In tbe first-named action a recovery is sought against tbe defendant therein named on account of unpaid taxes assessed against him by the authorities of Custer county for tbe yeai” 1889, amounting to the sum, with penalty added, of $759. Tbe second action is similar in character. In two- separate causes is alleged the default of the defendants in the payment of taxes assessed against them by tbe county authorities of Custer county for the years 1890 and 1892, amounting to- tbe sums, with penalties added, respectively, of $7,087.15 and $187. Said sums sued for are alleged to- have matured in tbe respective years of their assessment. To- each cause answer was made traversing tbe material allegations, and, in addition, as against each cause of action, tbe statute of limitations was pleaded. By agreement of the parties tbe causes were consolidated, and tried toget-ber by tbe court below sitting without a jury. At tbe conclusion of plaintiff’s testimony the defendants moved for a nonsuit upon tbe ground tbat it affirmatively appeared tbat tbe actions were barred by tbe provisions of Subdivision 2 of Section 42 of tbe First Division of tbe Compiled Statutes, as amended by Section 1 of tbe Act of tbe Third legislative assembly, approved March 10, 1893 (Laws 1893, p. 50), which motion was sustained by tbe court,, and judgment in favor of tbe defendants entered accordingly. From tbat judgment tbe plaintiff prosecutes this appeal.

No question having been raised touching tbe authority of plaintiff to bring these actions in tbe name of tbe board of county commissioners, its capacity to sue is assumed for the purposes of this appeal.

In addition ¡o the material averments of tbe complaint, it is further alleged, relative to tbe properly on account of which tbe taxes sued for were assessed, tbat it “was at all times while within said county situate upon tbe Crow Indian reservation, and tbat after .-aid tax was assessed and levied and became delinquent tbe treasurer of said county plaintiff frequently attempted to go upon said reservation to collect said tax, and was' at all times before tbe removal of said property from tbe said county hindered and prevented from SO1 entering upon said reservation and collecting said tax by distraint of said property by tbe United States Indian agent and by tbe United States authorities in charge of said reservation, and by tbe injunction orders in said matter made and issued by tbe United States circuit court of the Ninth circuit in and for tbe district of Montana, and was by the action of said federal authorities and said federal court vLolly prevented from seizing and distrain-ing tbe property of defendants.” A careful examination of tbe testimony liad at tbe trial fails to disclose any proof offered in support of this contention. Whether these averments were incorporated in tbe pleadings for tbe purpose of taking tbe causes out of tbe operation of the statute of limitations it is needless to speculate, or what effect tbe alleged hindrance, if established, would have upon the statute, is unnecessary to determine. The sole question presented by this appeal is whether the statute of limitations runs against the state, or a subdivision thereof, in an action to recover a judgment for an unpaid tax claim, — whether said Subdivision 2 of Section 42, as amended, contravenes the provisions of Section 39, Article V, of the Constitution.

The statutory and constitutional provisions which have application to and must determine the question under consideration are as follows: Section 28, First Division, Compiled Statutes of 1887: “Civil actions can only be commenced within the periods prescribed in this title after the cause of action shall have accrued, except where, in special cases, a different limitation is prescribed by statute.” Section 42, Id., as amended: “An action upon a liability created by a statute, other than a penalty or a forfeiture, shall be commenced within two years.” Section 49, Id.: “The limitations prescribed in this act shall apply to' actions brought in the name of the territory, or for the benefit of the territory, in the same manner as to actions brought by private parties.” The section last quoted, as carried into Section 520, Code of Civil Procedure, reads: “The limitations prescribed in this chapter apply to actions brought in the name of the state, or for the benefit of the state, in the same manner as to actions by private parties.” Section 39, Article V, of the Constitution: “No obligation or liability of any person, association or corporation held or owned by the statej or any municipal corporation therein, shall ever be exchanged, transferred, remitted, released or postponed or in any way diminished by the legislative assembly; nor shall such liability or obligation be extinguished except by the payment thereof into the proper treasury.”

Legislative intent is manifest from the language of Section 49, supra, that the statute should operate with equal force against an action by the state, or for the use and benefit of the state, as against a private individual. If demands of the character of those in suit are “liabilities created by statute,” and the sections of the statute above quoted are not repugnant to the provisions of the constitution, it logically follows that the lower court properly held that appellant’s right to proceed by action was barred.

Is the obligation to pay a tax demand levied and assessed by the proper authorities, and in accordance with legislative direction, a “liability created by statute” ? That it is such a liability is well supported by reason, and is, almost without exception, the view adopted by courts of last resort.. The state, as an incident of its sovereignty, possesses the power to impose upon persons and estates within its jurisdiction their just and proportionate share of the expenses and burdens of maintaining its existence and effecting its objects, limited only in the exer-icse of this power by constitutional restrictions. This power to tax is strictly legislative, and its exercise must ensue from the mandate of the law-malcing branch of the government in the establishment of fixed and general rules insuring, as near as may be, exact impartiality and equality in the distribution of the common burden. The process by which this exaction from the individual or the estate is accomplished is the product of statutory enactment. The duty imposed is characterized and defined by and dependent upon the legislative will, and is a liability created by statute. Some of the numerous decisions adopting this construction are Bristol v. Washington County, 117 U. S. 147, 20 Sup. Ct. 585, 44 L. Ed. 701; State v. Mining Co., 14 Nev. 226; City and County of San Francisco v. Jones (C. C.), 20 Fed. 188; San Francisco v. Luning, 73 Cal. 610, 15 Pac. 311; County of Redwood v. Winona & St. P. Land Co., 40 Minn. 515, 42 N. W. 473; Pine County v. Lambert, 57 Minn. 203, 58 N. W. 990; 19 Am. & Eng. Enc. Law, (2d Ed) p. 282, and cases cited; Cooley on Taxation, 435.

A demand for taxes being a liability created by statute, the next inquiry is, do the provisions of said Subdivision 2 of Section 42, as amended, and Section 49, conflict with Section 39, Article V, of the Constitution? This question must be answered in the negative. The inhibitory words of the constitution are tliat ím obligation or liability in favor of tlie state sliall be “exchanged,” “transferred/’ “remitted,” “released,” “postponed,” “diminished,” “extinguished.” That the terms “exchanged” and “transferred” can have no application to the subject herein must be conceded; nor does the statute “postpone,” or suspend for a time, the remedy for the enforcement of payment, giving a temporary respite to' the debtor, to be followed by a revival of the right ti> collect from him; nor can a diminution follow from the statute canceling a part of the debt and leaving in force a part. If there is any conflict in the statute, it must be found in the remaining words “remitted,” “released,” “extinguished,” and which, for the purposes of this case, may be considered as convertible terms prohibiting a cancellation of obligations of the class embraced in the constitution. The statute relied on by the defendants, which limits the right to sue within two years after the maturity of the demand, does not operate to remit, release, or extinguish the obligation. With respect to personal actions for the recovery of debt, statutes of limitation aré not statutes of release or liquidation; they affect the remedy, and not the right. (Guiterman v. Wishon, 21 Mont. 461, 54 Pac. 566; Cooley, Const. Lim. p. 441; 19 Am. & Eng. Enc. Law (2d Ed), p.. 141, and cases cited.)

While plaintiff’s right to- proceed by action is lost by delay, the debt is not extinguished, and the officers authorized so to do may pursue the other remedies provided by law and enforce collection. The laws of this state provide a summary method of seizure and sale of personal property and sale of realty for enforcing payment cf taxes, and also authorize the bringing of a common-law action for the recovery of. a personal judgment against the delinquent taxpayer. Neither of these remedies is dependent on the other for its existence or efficiency. The proceeding by action is a remedy in addition only toi the others named; but for ihe statute creating it, the remedy would not exist. The lawmaking power, having authority to prescribe or withhold altogether a particular remedy, may, in its enactment, invest it with such restrictions as will, in its judgment, best subserve tbe public good. Were there no statute authorizing the bringing of an action to collect a tax debt, and the legislature, in its wisdom, deemed it expedient to make provision for such a remedy, could it be reasonably contended that in the enactment of such a law the constitutional provision relied on by the plaintiff would stand in the way of a .proviso that the action should be brought within a specified time, else the right to sue be denied? Or would the power of the legislature be questioned to repeal altogether the existing right to proceed by action, leaving the remedies of distraint and sale to be pursued by the collecting officers ?

' The power to sue for delinquent taxes existed at the adoption of the constitution, authority therefor being found in Section 9 of the Act of the Sixteenth legislative assembly of the territory, approved March 14-, 1889, p. 225, and likewise1, at the same time, the statute limiting the period within which such actions might be brought was in force. If it had been the intention of the framers of the constitution to exempt the state from the operation of statutes of limitations, it would have been an -easy matter toi incorporate a clame to that effect in the instrument.

More than two years having elapsed between the maturity of each of the claims sued on and the commencement of' the actions, the lower court properly sustained the motion of the defendants for a nonsuit. The judgment is therefore affirmed.

Affirmed.

MR. Oihee Justice BraNtly:

I concur.

Mr. Justice Pigott:

I concur.

Mr. Justice MilburN, having been of counsel in other undetermined causes presenting the same question here involved, does not participate in the foregoing opinion.


author: ME. JUSTICE MILBURN Me. Chief -Justice Brantly: Me. Justice Ptgott:

text:
    CHOWEN, Appellant, v. PHELPS et al., Respondents.
    (No. 1,445.)
    (Submitted April 16, 1902.
    Decided May 26, 1902.)

      Money Had and Received — Trusts—Limitations—Fraud and Mistake ■ — • Express Trusts — Manner of Creation — Suit to Enforce — Complaint—Costs.
    1. Plaintiff's son, who owned a part interest in common in certain real estate, conveyed his interest to D., who was also a part owner, under an oral agreement between the owners that it should be held and sold by D. as trustee. Thereafter the son sold and conveyed his interest to plaintiff, who conveyed to I), under a similar trust arranged with him, and he thereafter conveyed the land to defendant C., who was a part owner, in trust to be held and sold for the benefit of the owners. The latter sold the property and paid the proceeds to defendant 1\, who was also a part owner; the plaintiff having no knowledge thereof till within three years of the Commencement of an action to require defendants to account, though the land was sold prior to such time. Defendants had no knowledge that plaintiff had an interest in the land, and there was no evidence showing a trust relation between plaintiff and defendants, or a concealment of the facts by defendants. Held, that the action was for money had and received, barred within three years, under Code of Civil Procedure, Sec. 514, fixing a three-year limitation for actions on contract, account, promise, obligation, or liability, and tnat there was no fraud or mistake, within the meaning of Act of March 9, 1893, providing that limitations shall not run against actions founded on fraud or mistake till the fraud or mistake is discovered ; the defendants owing no duty to plaintiff to notify her of the transaction.
    2. A purchaser of real estate is not chargeable with record notice of a conveyance by the person from whom his vendor had acquired title by a quitclaim deed executed after the execution of the latter deed.
    3. A purchaser of real estate is not chargeable with notice of a trust agreement affecting the land, between his vendor and a person to whom the land had been conveyed by the person selling to the vendor, made after the conveyance to the latter.
    4. An express trust in land can only be created by a conveyance in writing, which is accepted by the grantee, showing the purpose for which the grantee holds the property.
    0. A complaint in an action to enforce an express trust in land must allege a conveyance in writing, accepted by the grantee, which shows the purpose for which the grantee holds the property.
    6. Where plaintiff is entitled to a portion of the proceeds of land sold by the owner of the legal title, no demand is necessary before suit, in order to entitle plaintiff to costs, even though no trust relation exists between the parties.

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

      Action by Susan/ E. Cbowen against Louis G-. Plielps and Timotby E. Collins. From a judgment of nonsuit, plaintiff appeals.
    Affirmed.

      Mr. F. A. Merrill, and Mr. Ransom, Cooper, for Appellant.
    Tlie statute of frauds cannot be invoked in! this case because of the very familiar rule that the statute is only intended to prevent frauds, and the party intending to claim the benefit of the statute must deny the transaction or contract and cannot admit it and then claim that it was void because not in writing. In this case the defendants in their answers admit the creation of the trust by alleging that they and Dickerman and PI. 0. Ghowen, on the 5th day of July, 1893, and prior thereto-, were owners of the land, but that the legal title was- held by Dicker-man, and that Herbert O. Chowen conveyed to plaintiff. Under the facts in this case a trust arose, or was created/by operation of law. Such a trust need not be created or declared by any instrument in writing and may be proved by parol evidence. (Sec. 218, Fifth Div. Compiled Statutes of 1887; Sec. 1311, Civil Code; Lewis v. Lmdley, 19 Mont. 422; Muller v. Buyck, 12 Mont. 369.) Phelps became a trustee for plaintiff to the extent to which be received her share of the trust fund. (Secs. 2952, 2958, 2959, 2990, Civil Code.) The defendants’ improper interference with and disposition, of plaintiff’s share of the trust fund was a fraud as to her. (Sec. 2976, Civil Code; 36 Lawyers’ Deports, Annotated, 84.)
    Plaintiff’s action is an action for relief on the ground of fraud, and is not provided for in Section 514, but is provided for in Section 513. The court cannot ignore the fact that although the legislature has in Section 514 provided a period for bringing. actions on an obligation or liability not founded on an instrument in writing, it has also elsewhere expressly provided a different period for bringing action for relief on the ground of fraud. It must be assumed that the legislature meant something by this, and that in the' latter case Section 514 ivas not intended to apply, whether the defendants’ obligation or liability is or is not founded on an instrument in writing. ' ■ i ¡1]
    Tlie statute of limitations bas not been properly pleaded. The defense of the statute of limitations is a personal privilege and must be taken advantage of by demurrer or answer, otherwise it is deemed to be waived. (Kelly v. Kriess, 68 Cal. 210; Reagan v. Justices’ Gouri, 75 Cal. 253; and see Secs. 558 and 749, Code of Civil Procedure.) The only attempt by the defendants to plead the statutes of limitations was by reference to Subdivision 1 of Section 514 of the Code of Civil Procedure. The cause of action in this case does not come, within the provisions of that subdivision or section, but is provided for elsewhere, and so defendants cannot have the benefit of any statute of limitation not pleaded by them. (Stewart v. Budd, 7 Mont. 573; Maríning v. Dallas, 73 Cal. 420.) If the defendants had properly pleaded the statute of limitations it would then have been necessary for them to establish the facts showing that the plaintiffs cause of action was barred by the statute. The action being an action for relief on the ground of fraud, the statute would not commence to' run until the discovery by plaintiff of the facts constituting the fraud.
    It is immaterial in this case whether the action is legal or equitable, for even in jurisdictions where the distinction between legal and equitable actions is maintained, the rule is that in an action at law to recover money it is competent to show by oral evidence that the money is a trust fund, and in such case the action is of an equitable character and the rules of equity regarding the admission of evidence should prevail. (Minchin v. MwDhin, 32 N. E. Pep., 165 Mass.)
    The defendants in this case having appeared and answered, the plaintiff is entitled to any relief to which she has shown herself entitled regardless of her prayer.

      Messrs. Clayberg '& Gunn, and Mr. W. W. Phelps, for Respondents.
   ME. JUSTICE MILBURN

delivered tbe opinion of tbe court.

Plaintiff sued tbe defendants to recover tbe sum of $5,625 and interest “from tbe month of April, 1895.” Tbe court, on motion of defendants, entered an order of nonsuit. Plaintiff appeals from tbe judgment of dismissal, which gave defendants their costs.

On March 22, 1898, tbe plaintiff commenced suit by filing her complaint, wherein she alleged that on and prior to August 7, 1893, she was the owner of an undivided one-fourth interest in certain real estate in Great Palls, Montana; that her co-owners were the defendants and A. E. Dickerman, each owning a part equal to lien’s: that, while these four persons owned the property, they mutually agreed to convey the same “to the defendant Collins in trust, to be kept and held by him for them, and to be conveyed by him for the equal and mutual use and benefit of the plaintiff and her said co-owners to such persons and on such terms as she and they should thereafter agree upon, and that the plaintiff should have and be paid out of the proceeds of any sale of said lands * * * one-quarter -of the sum for which said lands should be sold;” that in pursuance of said agreement the lands were by proper deeds of conveyance conveyed to the defendant Collins in trust for the uses and purposes agreed upon; that on January 15, 1894, a certain part of said real estate was, without the knowledge or consent of the plaintiff, sold and conveyed to the city of Great Ealls for the sum of $22,500, the warrants in payment being drawn thereupon payable to thu defendant Collins; that on January 17, 1894, the defendants caused the money payable on said warrants to be paid to defendant Phelps; that Phelps knew then of the interest of plaintiff in the funds and her alleged right to share therein; that until April, 1895, the plaintiff had no knowledge that any of said sum had been received by Phelps; that frequently since April, 1895,#she demanded of Phelps and Collins that they, and each of them, account to her for and pay her sliare to lier out of the proceeds of the sale; and that each a.t all times refused, and still refuses, to pay her any part of the money.

By answers duly filed the defendants denied that there was any agreement or understanding whatever between the defendants, or either of them, and the plaintiff; admitted that the land was sold for the sum named, but denied that the money was paid to the defendant Phelps with any knowledge whatever on his part as to any interest whatever in the property or the proceeds, as alleged by plaintiff; admitted that the plaintiff had not received any of the said money; averred that on and prior to July 5, 18U3, Herbert 0. Chowen, who is the son of plaintiff, one A. E. Dickennan, defendant Collins, and defendant Phelps each owned a one-fourth interest in the whole property; and say that on December 16, 1891, Dickennan, who then held the legal title, mortgaged the .said property to secure a note for $16,000, the note being for money borrowed for the use of the four persons last above named, and being signed by Dicker-naan and indorsed by the three others; that after the execution of the mortgage, which was not recorded, said Herbert 0. Chowen executed and delivered to the plaintiff a certain quitclaim deed for said premises; that prior to the date of this quitclaim deed, and prior to the making of the mortgage, said Herbert O. Chowen conveyed all his interest in the premises by quitclaim deed to said Dickennan; that no consideration was paid by plaintiff to Herbert 0. Chowen for the transfer to her; that at the time of the execution of the quitclaim deed to the plaintiff she knew of the mortgage; that all the proceeds of said sale were necessary to pay, and were paid, to settle mortgage and expenses of sale; that they did not have any knowledge at the time of the sale or of the disbursing of the money that plaintiff claimed any interest in the property; and that the money was paid out by Collins.

The cause was tried to a jury. The following deeds were introduced: A qúitelaim deed, dated December 10, 1891, from Herbert 0. Cbowen and wife to said Dickennan, consideration $1, conveying tbeir interest in all of tbe property mentioned; a quitclaim deed, dated July 5, 1893, from Herbert 0. Gbowen and wife to plaintiff, consideration $7,500, conveying all tbeir interest in tbe said property; and a quitclaim deed, dated August 7, 1893, from plaintiff to Dickerman, consideration $1, for said property.

Dickerman testified to an oral agreement witb Herbert O. Gbowen, Pbelps, and Collins, by wbicb be (Dickerman) was to bold tbe land as trustee and sell it. He conveyed to Collins for tbe same purpose. When be conveyed to Collins, be (Dick-erman) knew of the interest of plaintiff. To tbe best of bis recollection, witness bad no talk witb defendants in regard to' her interest prior to tbe sale;

Plerbert 0. Gbowen testified to tbe same effect as- to- tbe agreement made orally. He notified tbe plaintiff of tbe agreement. He sold all bis interest to her.

Plaintiff testified that there was no agreement in writing witb Dickerman as to bow tbe land was to be disposed of by him; she never got any part of tbe proceeds of tbe sale; she could not tell when she first learned of tbe sale, or when tbe money was paid; she learned from a letter from Pbelps wbat disposition bad been made of tbe money; she did not give tbe date of tbe letter, or when she received it; she knew, late in the summer of 1893, that they were talking of selling tbe land for a park; and she noticed in tbe papers, in tbe fall of 1893, that the property bad been sold or was to be sold. Tbe letter was received in answer to one written by her to Pbelps.

Herbert 0. Gbowen also testified that before the commencement of this action be, as attorney in fact for tbe plaintiff, demanded her share of tbe proceeds of tbe sale. Several times they refused to pay or account as requested, until plaintiff wrote to Pbelps, and then be answered.

Plaintiff resting, tbe defendants moved the court for a non-suit upon tbe following grounds: “That it is alleged in tbe complaint that foni or about the 17th day of January, 1894, tbe defendants Pbelps and Collins, without the knowledge or consent of the plaintiff, caused and procured the $22,500 payable on said warrants to be paid to the defendant Phelps in, payment of said warrants and as payment by said city for said lands, and said sum was on said day so paid to and received by said Phelps at his instance and request;’ and it further appearing that this action was not commenced until March 22,'T'8.98, or more than three years after the alleged receipt and collection of this money and the cause of action had accrued, the cause of action is barred by Subdivision 1 of Section 514 of the Code of Civil Procedure of Montana. * * *” The motion was sustained by the court.

The questions which present themselves, in this case are difficult. They axe not all discussed in the briefs of counsel. The authorities conflict with each other, and the courts of several states conflict with themselves.

There was no evidence whatever that there was any trust relation between the plaintiff and the defendants. There was nothing proven, or attempted to be proven, tending to show that either of the two defendants knew of the plaintiff having any interest in the property or the proceeds of the sale thereof. The evidence shows that after Herbert O. Chowen conveyed his interest to Dickerman, he (Chowen) made a quitclaim deed to plaintiff, and plaintiff made a quitclaim deed to Dickerman, and that thereafter Dickerman conveyed by quitclaim deed to Collins.

Collins was not in reason or law expected or required to examine the public record of deeds to see what, if anything, Herbert 0. Chowen had done in regard to the property after he had conveyed all his legal title to Dickerman, whoi thereafter conveyed all of the property to Collins. Pie (Collins) was not charged ■with knowledge of the quitclaim deed to plaintiff, or of the quitclaim deed from plaintiff to’ Dickerman. Neither he nor* Phelps, without any knowledge of an interest in plaintiff, wasi charged' with any duty to¡ notify plaintiff. She had ample means, as appears from the evidence, to learn the situation. Her right of action against the defendants, if sbe bad any, commenced from tbe time that they, or either of them, collected the money. Even if Collins coold be charged with constructive, or with any, knowledge of the deed from plaintiff to Diekerman, he certainly was not charged, because of said deed, with any knowledge of any oral contract between Diekerman and "the plaintiff. There was no breach of duty to her. She had a duty to herself to perforin, and that ivas to notify the defendants of her rights, if any she had, and to demand her share of the proceeds, if she had a right to them. The money was money had and received for the owners. It was received in January, 1894. 'This suit was commenced in March, 1898.

It is contended that this is a case of fraud and mistake, if anything, and that it would fall under Act of March 9, 1893, amending Section 42 of the Code of Civil Procedure (Compiled Statutes), and continued in operation under Section 518G of the Political Code, and that it could not fall under Section 514 of the Code of Civil Procedure of 1895, as stated in the motion for a nonsuit. We do not think that the Act of 1893 applies. It does not seem to be “an action, for relief on the ground of fraud and mistake,” in which case the “cause of action * * * is not deemed to have accrued until the discovery by the aggrieved party of the facts constituting fraud or mistake.” It is apparent from the complaint that the plaintiff ratified the sale of the part of the lands sold, and that sha simply is demanding money had and received, as she alleges, for her use. According to the allegations of the complaint, including the ratification, the defendant Collins was lawfully in possession of the money; but it does not appear that he held it under an express trust. To create an, express trust, there must be a conveyance in writing showing the purpose for which the grantee holds the property, and there must be an acceptance by him. A complaint declaring upon an express trust must show both. “Except in those cases in which the agent stands in the position of a trustee under an express trust, or has been guilty of actual fraud in concealing his liability to his principal, there is no good reason,” says Mr. Wood, in Ms work on Statutes of Limitations (volume 1, p'. 348), “why the statute of limitations should not commence to' run in his favor after the lapse of a reasonable time iñ wliich to give notice to1 his principal.” In the case set up in the complaint there is m> express trust alleged. There is no concealment stated. The action as stated in tho complaint is one in assumpsit. If the allegations of the complaint were true, then the1 duty of the defendants, if they got the money, was to. pay her share to the plaintiff. Failure in-such duty was a breach, such as would give an immediate right of action without necessity of demand.

. Is this a case in which demand is necessary before suit, thus to save costs to the debtor? We think not. If the debtor fail in his duty, ha cannot complain because demand is not made before suit, with attendant costs, is commenced. If it be one’s duty, within a reasonable time after' its receipt, to pay over money belonging to another, then the debtor cannot at the same time, have the privilege or right to wait for demand. Duty to do at once a certain tMng, and privilege to wait for a demand before doing, cannot coexist in the same person. The right of action accrues .-/hen the duty commences, unless, perhaps, the person owing the duty conceal from the beneficiary the hap'-pening of the very thing upon the happening of wMch the right of action would accrue. As we have said, no concealment is alleged in the .complaint in this case.

Thus we have, under the pleadings^ evidence, and briefs, only the question submitted, to-wit: If the statute of limitations run in such a case, is it that part of the Act of 1893, supra (similar to Subsection 4, Section 513, Code of Civil Procedure), or Subsection 1, Section 514 of the Coda of Civil Procedure ? The latter was relied upon in the motion for non-suit and in the answers. The former is declared by the plaintiff to be the only section to be invoked, if any. We believe that Subsection 1 of Section 514 of the Code of Civil Procedure applies.

There was not anything in the evidence to' show any understanding or agreement between plaintiff and defendants. There was not anything alleged or proven showing any concealment on the part of the defendants, or either of them.

The answer' properly pleaded the statute of limitations, and it was apparent from the case as made by plaintiff that the plea was good, and the cause was properly dismissed on motion for nonsuit.

Affirmed.

Me. Chief -Justice Brantly:

I concur.

Me. Justice Ptgott:

Although I do not agree with all that is said in the foregoing opinion, I concur in the judgment of affirmance.


author: MR JUSTICE.1 PIGOTT

text:
    BORDEAUX, Respondent, v. BORDEAUX, Appellant.
    (No. 1,787.)
    (Submitted April 21, 1902.
    Decided June 2, 1902.)

      Divorce — Temporary Alimony — Suit Money — Power to Grant —Jurisdiction of Supreme Court.

    The Supreme Court is without power, either inherent or constitutionally conferred, to allow temporary alimony or suit money pending an appeal in a divorce ease. After an appeal is taken the action is still in the District Court, the primary forum. Allowance of suit money or temporary alimony is not within the original jurisdiction of the Supreme Court, nor is it necessary or proper to the complete exercise of appellate jurisdiction.

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

    Divoece suit by John R. Bordeaux against Ella F. Bordeaux. A decree was rendered for plaintiff, and a new trial denied, and defendant appealed. Original application by defendant for an allowance of temporary alimony and suit money.
    Application denied.

      Messrs. McHation & Cotter, for Appellant.

      Messrs. Stapleton & Stapleton, and Mr. B. S. Thresher, for Bespondent.
   MR JUSTICE.1 PIGOTT

delivered the opinion of tbe court.

Judgment of divorce was entered in favor of the plaintiff for an offense committed by the defendant. From the judgment and an order refusing her motion, for a new trial the defendant has appealed. She now applies toi this court for an order requiring the respondent to pay to her the stun of $5,000 as a reasonable fee for the services of her counsel rendered and to be rendered on the appeals, and to pay also- the costs of the transcript, of her appearance fee in this court, and of printing her brief for this court; and also requiring the respondent to pay for her support and maintenance pending the appeals a sum in excess of the amount allowed by the district court. The power of this court to grant the order prayed for is challenged by the respondent.

By virtue of Section 11 of Article VIII of the Constitution of Montana, district courts have original jurisdiction of actions for divorce. While such an action is pending, the district court or its judge may, as is provided in Section 191 of the Civil Code, in its or his discretion require the husband to-pa,y alimony and suit money; and the “action is deemed to be pending from the time of its commencement until its final determination upon, appeal, or until the time for appeal has passed, unless the judgment is sooner satisfied.” (Section 1895, Code of Civil Procedure.)

Whether tire district court or judge has power, pending appeal, to require the husband to p-ay to the wife money necessary to prosecute or defend against an appeal in a divorce case is a question reserved as unnecessary to be decided. As to the conclusion On this point reacted in Reilly v. Reilly, 60 California Reports, 625, we express no opinion. Suffice it to' say that this application seeks to invoke the exercise of original jurisdiction, and that the constitution has not, either expressly or by implication, conferred upon the supreme court original jurisdiction in actions for divorce. The source of our jurisdiction is found in Sections 2 and 3 of Article VIII of that instrument, and in neither is there authority for the relief sought by the applicant. To the complete exercise of appellate jurisdiction this court is empowered to issue and to hear and determine such “original and remedial writs as may be necessary or proper1.” Complete exercise of appellate jurisdiction in the case at bar does not demand such a writ, nor in any wise depiend upon its issuance; nor does the appellant ask for it. We remark, also', that Section 1130 of the Code of Civil Procedure, providing Hr at whenever an appeal is perfected “it stays all further proceedings in the court below, upon the judgment or order appealed from,, or upon the matters embraced therein, """ * ® but the court below- may proceed upon any other matter embraced in the action and not affected by the order appealed from,” does not grant to this court the. power which the appellant asks to be -exercised.

Nor is the order prayed for one falling within the general and inherent powers of this court. Many decisions are produced which are asserted by counsel to uphold the position of the appellant. Some of the cases are directly in point, and fully support the contention. Of these, Lake v. Lake, 16 Nevada Reports, 363, and Id., 17 Nevada Reports, 230 (30 Pac. 878), is the strongest. Other cases, owing to the difference between the law of and the practice prevailing in the states where they were decided and the law and practice in this state, are of no value. Neither the courts which administered justice according to the course and practice of the common law, nor courts of chancery, were clothed with jurisdiction of divorce causes-. In the ecclesiastical courts, and in them only, resided the power to declare judicial dissolution of the bonds of matrimony. In the absence of tribunals of the kind last mentioned, the states of the TJnion have, with few exceptions, lodged with their courts of equity jurisdiction over such causes. In. Montana an- action of divorce is a suit in equity. According to the equity practice, an appeal removed the whole caseh^-all questions of law and of fact — to the higher court, where it was tried anew upon the depositions presented to the chancellor a quo, or upon such depositions and further evidence reduced to- writing, and a decree entered upon the merits-. During the pendency of the appeal tire suit so transferred was in the higher court, and hence it might, in general, make such orders as the court or chancellor of first instance could have made. Such, as We understand, is the procedure still in vogue in certain of the states. In Montana, However, the contrary practice prevails. The action — the entire case — -is not transferred by appeal. Questions of law only are presented on appeal, even where the relief sought is equitable in character. The action itself is still pending in the lower court. On an appeal only questions of law are tried; neither the mere weight of -evidence in substantial conflict nor the credibility of the witnesses is re-examined, nor is evidence adduced. Except in so- far as affected by the appeal, the cause remains in the district court, the primary forum. The supreme court may affirm, reverse, or modify tire judgment or order’ appealed from, and direct tire proper judgment or order to be entered, or direct a new trial or further proceedings to- be had (Section 21, Code of Civil Procedure), but the judgment of the supreme court affects only the judgment or order of the lower’ court, and must be certified to' the court from which the appeal was taken and in which the action is pending. This is manifest from an examination of the organic law and the statutes. Express recognition of it is fo-und in Section 1130, supra. This distinction has been -often overlooked, as appears from many of the opinions read in support of tire -present proceeding.

The application is dismissed for want of jurisdiction to entertain it.

Dismissed.


author: MB. JUSTICE PIGOTT

text:
    BORDEAUX, Appellant, v. BORDEAUX, Respondent.
    (No. 1,770.)
    (Submitted April 21, 1902.
    Decided June 5, 1902.)
    For syllabus, see Bordeaux y. Bordeaux, ante, page BS3.

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

    Divorce suit by John E. Bordeaux against Ellen E. Bordeaux. A decree was entered for plaintiff, from which defemd-.ant appealed, and made application, to the trial court for an allowance for suit money, which was allowed, and plaintiff appeals. Original application by defendant for suit money.
    Application denied.

      Messrs. Stapleton & Stapleton, and Mr. B. S. Thresher, for Appellant.

      Messrs. McHatton & Goiter, for Respondent.
   MB. JUSTICE PIGOTT

delivered the opinion of the court.

After the entry of judgment of divorce in favor of the plaintiff, and the entry of an order refusing the defendant a new trial, the defendant moved the court below for an order directing the plaintiff to pay into, the hands of its clerk a certain sum for services of her counsel rendered in the cause, and rendered and to he rendered by them, upon the appeals, and requiring the plaintiff to pay for her use the cost of transcribing the testimony. On November 9, 1901, the court below granted in part the order prayed for. Instead of complying with it the plaintiff has appealed to the supreme court therefrom, and has filed an undertaking which operates as a supersedeas. This appeal is now pending here. The respondent asks this court to. require the appellant to pay to her, or into: court for her use, a reasonable sum for her counsel fees on the appeal taken by the plaintiff, the costs of her appearance fee in this court* and of printing her brief for this court.

The question presented is the same as the one raised and answered in cause No. 1,787, Bordeaux v. Bordeaux, 26 Montana Reports, 533, 69 Pacific Reporter, 103, where we held that the supreme court is without jurisdiction to grant alimony or suit money pending appeal.

Eor want of power to make the order prayed for, the application is dismissed.

Dismissed.


author: MR. JUSTICE PIGrOTT

text:
    BORDEAUX, Respondent, v. BORDEAUX, Appellant.
    (No. 1,806.)
    (Submitted April 21, 1902.
    Decided June 5, 1902.)
    !For syllabus, see Boi'deaux v. Bordeaux, ante, page 5a3.

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

    Divorce suit by Jolin R. Bordeaux against Ella E. Bordeaux. A decree was rendered for plaintiff, and a neiw trial •denied, and defendant appealed. Original application by defendant for an allowance of temporary alimony and suit money.
    Application denied.
    .Messrs. McTIatton & Colter, for Appellant.

      Messrs. Stapleton & Stapleton, and Mr. B. S. Thresher, for Despondent.
   MR. JUSTICE PIGrOTT

delivered tbe opinion of tbe court.

On tbe third day of January, 1902, tbe defendant appealed from an order of tbe district court entered November 9, 1901, requiring tbe plaintiff, wbo bad recovered a judgment of divorce against die defendant, toi pay to ber certain sums of money for couusel fees and expenses on appeals taken by ber to tbe supreme court from tbe judgment and order denying ber motion for a new trial. Erom tbe order of November 9, 1901, tbe plaintiff also appealed. Tbe defendant prays this court to1 require tbe plaintiff to pay to ber, or into court for ber use, a reasonable sum for tbe services of counsel on ber appeal, another sum for tbe cost of preparing and printing ber transcript on appeal, and a further sum for ber appearance fee therein.

Upon the autaority of the two oases of Bordeaux v. Bordeaux, 26 Montana Reports, 533, 537, 69 Pacific Reporter, 103, 1130, the application is dismissed for tliei reason that this, court is without jurisdiction to grant it.

Dismissed.


author: ME. JUSTICE MILBURN

text:
    STATE ex rel. MOSHNER, Respondent, v. WRIGHT, Appellant.
    (No. 1,427.)
    (Submitted March 10, 1902.
    Decided June 9, 1902.)

      Mandamus — County Cleric — Alias Order of Sale.

      Mandamus was not Ike proper remedy to compel the clerk of the district court to issue an alias order of sale of property under a foreclosure lien, as there was an adequate remedy at law, by motion in the case in the court in' which the decree of foreclosure was rendered.

      Appeal from District Court, Fergus County; Dudley Du Bose, Judge.

      Mandamus by the state, on relation of Prank Moshner,. against Edmund Wright, clerk of the district court of Fergus county. From a judgment for relator, defendant appeals.
    Reversed.

      Mr. Wm. M. Blackford, Messrs. Stra/nahan & Stranahan, and Messrs. Clayberg & Qunn, for Appellant.
    The duty of the clerk to issue the alias is not clear; nor is it an act which the law specially enjoins upon him, hence the writ of mandate is not the proper remedy. (Code of Civil Procedure, Secs. 2136, 1290, 1961.) That there are other plain, speedy and adequate remedies there can be no doubt. Tbe court has absolute control aver its process and may adopt any process which may appear most conformable to the- spirit • of the Code. (Code of Civil Procedure, Secs. 205, 110; Houston v. Williams, 13 Cal. 24; Freeman on Executions, Sec. 54; Clark v. Sawyer, 4S Cal. 133.) The writ of mandate will not lie to compel the clerk to issue an execution. (Miller v. San-derson, 10 Cal. 490; Goodwin v. Glazer, 10 Cal. 333; Fulton v. Hanna, 40 Cal. 281; Coda of Civil Procedure, Sec. 1214; People v. Bartlett, 4-0 Cal. 142; Southern Cal. Lumber Co. v. Hotel* Co., 94 Cal. 217; Wiggimlon v. Markley, 52 Cal. 411; People v. McLane, 62 Cal. 616; State ex rel. Slomanv. Moores, 29 Ne;b. 122; Pichell v. Owen, 66 Iowa, 485.) Mamda/nvus does not lie 1» compel a public officer to do an act not clearly commanded by law. (Pucket v. White, 22 Texas, 559; State v. County Judge, 7 Clarke (Iowa), 425; Commonwealth v. Pittsburg, 34 Pa. St. 496.)
    If it is contaaded that ihe order of sal© is now functus officio, and the criticism comes too¡ late because of the sheriffs return, the answer- is ready: “The power of courts to sat aside or cancel the returns of their officers indorsed on writs of execution ' is conceded.” (Freeman on Executions, Sec. 361; Putt v. Fulgham, 5 How. Miss. 621; .Holt r. Robinson, 21 Ala. 106; Scott v. Allen, 1 Tex. 508; Bryan v. Bridges, 6 Tex. 141; Wiltsie on Mor-tgage Foreclosure, p. 568; Kelley v. Israel, 11 Paige Ch. 147.)
   ME. JUSTICE MILBURN

delivered the opinion of the court.

This is an appeal from an order granting a writ of mandate. A decree of foreclosure of liens, and an order of sal© under the decree, were, respectively, made and issued in a number of actions which had been consolidated. The order of sale, directing several pieces of property to¡ be sold, was placed in the hands of the sheriff, which officer- sold all but one certain piece of property. The order of sale was returned by the sheriff with a certificate that all of the property was sold, excepting one pieces upon which there was a certain lien. About three years later the relator demanded of the clerk of thei district court that an alias order of sale be issued out of his office,directing the sheriff to sell the certain, piece of property to-satisfy the lien upon it. The clerk refused, and the relator prayed for a writ of mandate- to- issue out of the district court, directed to- the clerk, ordering1: him to- issue the alias order of sale. The clerk demurred to- the petition for the writ. The demurrer was overruled, and, upon his failure to answer, the district court granted the writ, whereupon the clerk appealed.

The specification of errors relied upon are: First, that the court erred in overruling the defendant’s demurrer to- the petition for the writ; and, second, that the court erred in granting the writ of mandate.

The only question necessary for us to consider is one of practice, to-wi.t, is the writ of mandate the proper remedy? There ha:s not been any appearance on the part of the respondent in- this court. The question before us has not been presented in this forum heretofore, but has been considered and decided by other courts-. We have carefully considered the brief of the appellant, and the authorities which he has cited in support of his contention; and, besides^ we have examined the decisions and opinions contra.

Had the respondent a plain, speedy, and adequate remedy at law, without resorting to a proceeding in mamdmmsf We think that he had. He could have gone into the court which made the-decree, and, by proper motion, prayed for an order in the case upon the clerk of the court, directing him to issue the alias order of sale, without resorting to a proceeding in mandamus. (Fulton v. Hanna, 40 Cal. 278.) The case of Garoulte v. Haley, 104 Cal. 497, 38 Pac. 194, is one in which the court concluded that it w:as the duty of the clerk to- issue an execution when requested by the plaintiff, and granted the application for a writ of mandamus. In this- case, however, the question of whether or not mandamus would lie was not in-any wise raised or discussed; it seeming to have been- tacitly admitted by counsel that, if tbe judgment were still in force, mandamus might issue; and the case cannot be considered as-being one in which the court intended to overrule its former holding that mandamus would not lie, as decided in Fulton v. Hanna, supra.

Being of the opinion, that, as above stated, there was a plain, speedy and adequate remedy by motion in the case in the proper court, mandamus was not the proper remedy. Therefore the contention of the appellant must be, and is, sustained. Reversed and remanded.

Reversed and remanded.


author: Pee Cueiam.

text:
    No. 1,349.
    GOFF, Respondent, v. DELMOE, Appellant.

      Appeal from District Court, Silver Bow County.

    Decided August 26, 1901.

      Messrs. Clinton & Lamb, for Appellants.
   Pee Cueiam.

— This appeal is dismissed at the cost of the appellant, in accordance with the stipulation on file herein.


author: Pee Oueiam. Per Curiam.

text:
    No. 1,713.
    FINLEN, Appellant, v. HEINZE et al., Respondents.

      Appeal from District Court, Silver Bow County.

    Application for an injunction pending the appeal.
    Submitted August 29, 1901.
    Decided August 29, 1901.
   Pee Oueiam.

— It is ordered that all the affidavits filed in this causey the originals of which are on file in case No. 7,980 of the District Court of Silver Bow County, be and the same are hereby stricken from the files, and it is further ordered that the application for an injunction pending the appeal be and the same is hereby denied without prejudice

Messrs. Forbis & Evans, and Mr. J. K. MacDonald, for Appellant.

(Mr. Justice Pigott concurs in the order striking out the affidavit in support of the motion for a. new trial, but dissents from the order denying the injunction, pending the appeal from the judgment)

Order entered February 10, 1902.

Per Curiam.

— Upon application of the appellant this appeal is dismissed without; prejudice to another appeal.


author: Per Curiam.

text:
    No. 1,722.
    STATE ex rel. REYNOLDS, Relator, v. JOHN C. McCLERNAN, JUDGE OF THE SECOND JUDICIAL DISTRICT COURT, Respondent.
    Application for a Writ of Prohibition.

      Mr. I. G. Denny, and Mr. Henry 'C. Moque, for Relator.

      Mr. James Donovan, Attorney General, for Respondent.
    Submitted October 1, 1901.
    Decided October 2, 1901.
   Per Curiam.

— Relator’s application for a writ of prohibition is denied.


author: Per Ouriam.

text:
    No. 1,661.
    STATE, Respondent, v. BEALS, Appellant.

      Appeal from District Court, Yelloivstone County.

    Motion to dismiss appeal.

      Mr. J. B. Herford, and Mr. C. L. Harris, for Appellant.

      Mr. James Donovan, Attorney General, for Respondent.
    Submitted October 4, 1901.
    Decided October 4, 1901.
   Per Ouriam.

— Respondent’s motion to dismiss the appeal herein is granted, for the reason that the appellant lias not filed bis brief within the time required by Subdivisions 2 and 5 of Rule X of the Rules of this Court.


text:
    No. 1,695.
    STATE, Respondent, v. PRESCOTT, Appellant.

      Appeal from District Cowl, Cascade County.

      Mr. William G. Downing, for Appellant.

      Mr. James Donovan, Attorney General, for Respondent.
    Decided October 7, 1901.
   Per Curiam.

— This appeal is dismissed for the reason that appellant has not filed his brief herein, in accordance with Subdivisions 2 and 5 of Rule X of the Rules of this Court.


text:
    No. 1,353.
    McIVOR, Respondent, v. GRIGG et al., Appellants.

      Appeal from District Court, Madison County.

      Mr. E. B. Dowell, for Appellants.

      Mr. M. M. Duncan, for Respondent.
    Decided October 7, 1901.
   Per Ouriam.

— This appeal is dismissed in accordance with the stipulation! on file herein.


text:
    No. 1,414.
    W. A. CLARK & BRO., Respondents, v. GRAND OPERA HOUSE CO., et al., Defendants. SILAS F. KING, Defendant and Appellant.

      Appeal from District Court, Silver Bow County.

    Motion to dismiss appeal.

      Mr. J. K. MacDonald, for Appellant.
    Decided October 9, 1901.
   Per Ouriam.

— Upon motion of the appellant this appeal is dismissed at the cost of appellant.


author: Per Curiam. Per Curiam.

text:
    No. 1,726.
    STATE ex rel. MILES FINLEN, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, Defendant.
    Original application for a writ of supervisory control.
    ' Messrs. Forbis & Evans, Mr. T. J. Walsh, and Mr. J. E. MacDonald^ for Relator.
    Decided October 10, 1901.
   Per Curiam.

— Relator’s application for a writ of supervisory control herein is denied.

(Mr. Justice Pigott is of the opinion that the application should be set for hearing, and therefore dissents from this order.)

On petition for reheating.

Decided October 22, 1902.

Per Curiam.

— The petition for a reheating herein is denied. (Mr. Justice Milburn concurring upon the ground that the petition does not state facts sufficient to warrant the issuance of the writ prayed for. Mr. Justice Pigott is of the opinion that the application for a writ of supervisory control should be heard, and therefore dissents from the order denying the motion for a reconsideration.)


author: Per CuRiam.

text:
    No. 1,730.
    STATE ex rel. THOMAS, Relator, v. GREENAN, as COUNTY CLERK OF DEER LODGE COUNTY et al., Defendants.
    Original application for an alternative writ of mandate.
    Decided October 14, 1901.

      Mr. W. H. Trip pet, for Relator.
   Per CuRiam.

— Application denied for tlie reason, that the facts are not sufficient to warrant this court to assume original jurisdiction.


text:
    No. 1,674.
    CLARK et al., Respondents, v. GRAND OPERA HOUSE CO. et al., Appellants.

      Appeal from District Court, Silver Bow County.

    On the application of J. 0. Bender.
    Decided October 22, 1901.
   Per Curiam.

— The application of J. O. Bender to be made a party defendant and appellant herein, and for a stay of proceedings, is denied. (Mr. Justice Pigott dissents, being inclined to the opinion that, upon the present showing, the application should be granted under proper limitations and restrictions. )

Rehearing denied November 5, 1901.

On the application of A. Eustis.

Decided December 3, 1901.

Per Curiam.

— The application of A. Eustis, petitioner, for leave of court to appear and be heard by counsel in this cause, and for an order permitting him to give an undertaking to stay the enforcement of the judgment appealed from, having heretofore been submitted to, and taken under advisement by, the court: Now, upon due consideration, the court being fully advised in the premises, it is ordered: That the application be, and the same is, hereby denied, upon the ground that the petitioner does not appear to be a shareholder in appellant Grand Opera House Company, the court deeming it unnecessary to decide the question of whether or not, if he were shown to' be a shareholder, ihe other matters exhibited - would entitle the petitioner to the order prayed for, ihe ground assigned being sufficient for the disposition of the application.

Mr. Charles O’Donnell, and Mr. J. L. Wines, for Appellants.

Mr. T. J. Walsh, for J. 0. Bender.


text:
    No. 1,718.
    STATE ex rel. KING et al., Relators, v. WILLIAM CLANCY, JUDGE, Respondent.
    Application for writ of review.

      Mr. E. N. Hzrwoed> and Messrs. McBride & McBride, for Relators.

      Mr. C. P. Drennen, and Messrs. McHaMon & Cotter^ 'or Respondent.
    Petition filed September 4, 1901. Writ issued September 4, 1901. Motion to quash filed September 11, 1901.
    Decided October 23, 1901.
   Per Curiam.

— -The motion, to quash the writ heretofore issued herein is sustained and the proceeding is dismissed upon the ground that the writ was not issued to the proper defendant.


text:
    No. 1,725.
    HYNES, Respondent, v. BARNES, Appellant.

      Appeal from Disirict Court, Granite County.

    Or motion to dismiss appeal.

      Mr. D. M. Durfec, and Mr. Joshua Shull, for Appellant.

      Mr. George A. Maywood, for Respondent.
    Decided November 5, 1901.
   Per Curiam.

— The motion to dismiss the appeal herein is sustained and tho appeal is dismissed without prejudice, for the reason that the notice of appeal is defective.


author: Per Guriam.

text:
    No. 1,388.
    BRIGHT, Appellant, v. BURKE et al., Respondents.

      Appeal from District Court, Fergus County.

    On motion to dismiss appeal.

      Mr. William M. Blackford, and Messrs. Stranahan & Stran-ahan, for Appellant.

      Messrs. Cort & Worden, for Respondents.
    Decided November 21, 1901.
   Per Guriam.

— Upon motion of the respondents this cause is this day dismissed, for failure to file briefs in accordance with Subdivision 6 of Rule X of this court.


author: Per CuriaM.

text:
    No. 1,740.
    HEINZE et al., Appellants, v. BOSTON & MONTANA CONSOL. C. & S. MINING COMPANY, Respondent.

      Appeal from District Court, Silver Bow County.
    Injunction.

      Messrs. Toole & Bach, for Appellants.
   Per CuriaM.

— The application for an injunction p.ending tha appeal is denied.


text:
    No. 1,402, 1,403.
    LYNCH, Respondent, v. BECHTEL, Appellant.

      Appeal from District Court, Silver Bow County.

      Mr. John N. Kirie, and Mr. E. N. Harwood, for Appellant.
    Decided January 2, 1902.
   Per Curiam.

— Tírese appeals are this day dismissed as settled, without cost to either party, in accordance with the stipulations filed herein.


text:
    No. 1,566.
    NORTHERN PACIFIC RAILWAY COMPANY, Respondent, v. NEFF, Appellant.

      Appeal from District Court, Deer Lodge County.

    On motion to dismiss appeal.
    Decided January 16, 1902.

      Mr. Bernard Noon, for Appellant.

      Mr. William Wallace, Jr., for Respondent.
   Per Curiam.

— Upon motion of the respondent, the appeal is dismissed in accordance with, the stipulation on file, each party paying iis or its own costs.


text:
    No. 1,748.
    THRELKELD, Respondent, v. O’NEAL, Appellant.

      Appeal from District Court, Deer Lodge County.

    (Eor former opinion, see ante, page 209.)
    On motion to dismiss appeal.

      Mr. J. II. Duffy, for Respondent.
    Decided January 24, 1902.
   Per Curiam.

— It is ordered and adjudged that the motion to dismiss the appeal be and the same is hereby sustained, and the appeal dismissed.


text:
    No. 1,781.
    LANGSETH, Appellant, v. PLYMOUTH GOLD MINING COMPANY, Respondent.

      Appeal from District Court, Lewis <& Ciarle County.

    On motion to dismiss appeal.
    Decided February 24, 1902.

      Mr. 8. A. Balliet, for Appellant.
   Per CuriaM.

— The motion, to- dismiss tbis appeal is hereby sustained, and the appeal is dismissed without prejudice.


text:
    No. 1,783.
    MANTLE, Appellant, v. LARGEY, Respondent.

      Appeal from District Court, Silver Bow County.

    On motion to dismiss appeal.
    Decided February 24, 1902.

      Messrs. McHatton & Cotter, for Appellant.
   Per Curiam.

— The motion to dismiss this appeal is hereby sustained and the appeal is dismissed without prejudice.


text:
    No. 1,423
    FIRST NATIONAL BANK OF BUTTE, Respondent, v. ELLINGWOOD et al., Appellants.

      Appeal from District. Court, Silver Bow County.

    On motion to dismiss appeal.
    Decided February 26, 1902.

      Mr. Charles B. Leonard, for Appellants.

      Messrs. Kirie & Clinton, for Respondent.
   Per Curiam.

The motion to- dismiss this appeal is hereby sustained and the appeal is dismissed.


text:
    No. 1,662.
    LAVELL, Appellant, v. BOARD OF COMMISSIONERS OF SILVER BOW COUNTY, RESPONDENT.

      Appeal from District Court, Silver Bow County.

    Ou) motion to- strike, and to dismiss appeal.
    Decided February 28, 1902.

      Mr. Raymond. M. Place, for Appellant.

      Mr. James Donovan, Attorney General, for Respondent.
   Per Curiam.

Tbe motion, to strike is sustained in part; and the motion to dismiss the appeal is hereby sustained and the appeal is dismissed for the reason that the certificate is not in conformity with the law.

Mr. Justice Pigott dissents from the order dismissing the appeal.


text:
    No. 1,663.
    SULLIVAN, Appellant, v. BOARD OF COMMISSIONERS OF SILVER BOW COUNTY, Respondent.

      Appeal from District Court, Silver Bow County.

    On| motion to strike, and to dismiss appeal.
    Decided February 28, 1902.
   Per Curiam.

The motion to strike is sustained in part; and the motion to dismiss the appeal is hereby sustained and tbe appeal is dismissed, for the reason tlia,t the certificate is not in conformity with the law.

Mr. Raymond M. Place, for Appellant.

Mr. James Donovan, Attorney General, for Respondent.

Mr.'Justice Pigott dissents from the order dismissing the appeal.


text:
    No. 1,734.
    In re DAY; WILLIAM PAIGE, Appellant; EDWARD DAY, Respondent.

      Appeal from District Court, Silver Boiu County.

    On motion to dismiss appeal.
    Decided March 7, 1902.

      Mr. C. P. Connolly, for Appellant.
   Per Curiam.

Upon motion of the appellant herein, this appeal is hereby dismissed, each party to pay his own costs, in accordance rith the stipulation filed herein.


text:
    No. 1,447.
    No. 1,448.
    BENDER, Respondent, v. GRAND OPERA HOUSE COMPANY, Appellant. FORBIS et al., Respondents, v. GRAND OPERA HOUSE COMPANY, Appellant.

      Appeal from District Court, Silver Boiu County.

    On motion to dismiss appeals.

      Decided March 12, 1902.

      Mr. Charles O’Donnell, for Appellant.
   Per Curiam.

Upon motion of Charles O’Donnell, Esquire, attorney for the appellant, these appeals are hereby dismissed.


text:
    No. 1,434.
    PEIRIE, Respondent, v. KELLOGG et al., Appellants.

      Appeal from District Court, Silver Boto County.

    On motion to dismiss appeal.
    Decided March 12, 1902.

      Mr. Charles O’Donnell, for Appellants.

      Messrs. McHatton & Cotter, for Respondent.
   Per Curiam.

The motion to dismiss this appeal is hereby sustained, and the appeal is dismissed, for the reason that appellants’ briefs were not filed within the time required by the Rules of this Court.