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

text:
    WETZSTEIN, Respondent, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING CO., Appellant.
    (No. 1,658.)
    (Submitted March 1, 1901.
    Decided March 11, 1901.)

      Injunction — Restraining Order — Appeal—Supersedeas—Stare Decisis — Order to Show Cause — Time for Hearing — Reasonableness — Abuse of Discretion.

    1. Code of Civil Procedure, Sec. 1722, as amended February 28, 1899, provides that an appeal may b'e taken from an order granting or dissolving an injunction or refusing to grant or dissolve an injunction. Held, that the Supreme Court has no jurisdiction to grant an order of supersedeas to stay a temporary restraining order pending the hearing of an order to show cause why an injunction should not be issued, as there is no appeal from a temporary restraining order. (Mb. Justice Pigott dissenting.)
    2. In matters of practice the rule of stare decisis does not control, as it is proper to establish a correct and legal practice, if error has been committed in a former opinion of the court, provided it is apparent that no substantial injury will be sulfered by litigants by reason of reliance upon the precedent.
    3. Where a temporary restraining order, pending the hearing of an order to show cause why an injunction should not issue, was against a mining company, and suspended the operation of valuable property, it was an abuse of discretion to stay the hearing on the order to show cause six weeks from the issuance of the temporary restraining order, as it was unreasonable to suspend the operation of the mine for so long a period.
    4. It is only in exceptional cases that a restraining order should issue without requiring a bond.

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

      Action by Adolph Wetzstein against the Boston & Montana Consolidated Copper & Silver Mining Company. Order restraining defendant, and it appeals, and petitions for an order of supersedeas.

    Petition denied.

      Messrs. Forbis & Evans, for Appellant.

      Messrs. McHatton & Cotter and Mr. J. M. Denny, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the Court.

This cause conies now before this Court upon the petition of the defendant for an order of supersedeas staying a certain restraining order issued by the district court on February 18, 1901, pending a hearing of an order to show cause, on April 2, 1901, why a temporary injunction may not issue enjoining the defendant from continuing certain work in and about the Comanche lode claim. On the 25th day of February, 1901, the defendant appealed from the order so restraining the defendant pending-the healing on the order to show cause why a temporary injunction should not issue.

Respondent contends that this Court has no jurisdiction to grant the petition, for the reason that there is no appeal to this Court from a restraining order. We are of the opinion that respondent is right in the position he takes. Section 873 of the Code of Civil Procedure very clearly makes a distinction between an injunction and a restraining order. A restraining/ order is distinguishable from an injunction, in that a restraining order is intended only as a restraint upon the defendant until the propriety of the granting of an injunction, temporary^ or perpetual, can be determined, and it does no more than re-7 strain the proceedings until such determination. Such an order is limited in its operation, and extends only to such reasonable time as may be necessary to have a hearing on an order to show cause why an injunction should not issue. (10 Enc. Pl & Prac. 878; College Corner, etc., Road Co. v. Moss, 77 Ind. 139; Hicks v. Michael, 15 Cal. 107; San Diego Water Co. v. Pacific Coast S. S. Ca., 101 Cal. 216, 35 Pac. 651; Fenwick Hall Co. v. Town of Old Saybrook (C. C.) 66 Bed. 389; Strickland v. Griffin, 70 Ga. 541.)

It is the plain duty of a court to set the oi’der to show cause at a very early day, and, upon the application of the defendant, to shorten the time, to the end that, if the facts on the hearing warrant it, the restraining’ order may be discharged. In such a case, appeal from a restraining order is not possible or contemplated, for the reason that on the hearing, or soon thereafter, the court, in the discharge of its duty, will grant or refuse an injunction, and in either event the restraining order is dead. The law presumes that a judge will be fair and just, and will not put off the hearing of the oi’der to show cause until a day so distant that by the force of his own despotic will a mere temporary expedient, to-wit, a restraining order, granted ex parte and without bond, perhaps, will become an injunction. A judge might, over the objection of the plaintiff, set a demurrer to a complaint- for hearing at a time one year ahead. This might work great injury to< the plaintiff, but the remedy of the injured plaintiff could not be by appeal from the order so setting the hearer on demurrer. Wq are aware that in Bennett Bros. Co. v. Congdon, 20 Mont. 208, 50 Pac. 556, the court decided that a restraining order ivas an order from which an appeal might be taken, and that in Butte & Boston Consol. Mining Co. v. Montana Ore Purchasing Co., 24 Mont. 125, 60 Pac. 1039, the court considered such an appeal; but the point in the latter case, considered on appeal, was simply whether or not the complaint was properly verified. The rule of stare decisis does not here control, as it is not unusual, but proper, in matters of practice, to establish a correct and legal practice, if an error has been committed ill-advisedly in a former opinion! of this court-, provided that it is apparent that nici substantial injury will be-suffered by litigants by reason of reliance upon the precedent. The Court does not in Bennett Bros. Co. v. Congdon, supra, give any authority for its holding'. It does not appear in that case that it acted upon anything more urgent than a suggestion of counsel, or that there was an argument upon, or serious consideration of the point; and, further, it appears from an examination of the case that the “temporary restraining order” ivas in fact an injunction pendente lite, and not a mere restraining order pending a hearing upon an order to show cause why an injunction pendente lite, should not issue as in the case at bar.

This Court does not deem it improper to say that in reviewing this case it notices an abuse of the power of the court below in setting the order to show cause over so long a period of time. In the exercise of its extraordinary • powers in cases, such as the one at bar, involving important interests and mining operations, -which may suffer from interruption and delay, the court should grant a hearing at as early a date as practicable, and it is difficult to believe that such an order could not be heard within a reasonable time less than six weeks. To set an order to shoiv cause why a temporary injunction should not issue for hearing on so distant a day, and granting’ a restraining order meanwhile, in a case like the one before us, indicates a want of deliberate consideration of the defendant’s rights. Days being 24 hours long, certainly a court, which is ordinarily occupied in trial of causes on the regular calendar only 5 hours in actual time per day, can find a few hours in -which to grant a hearing bn an order to show cause why important business concerns should not be suspended pending a suit which may last for a long time. To add to the danger of so long a postponement of the hearing, we notice that the restraining order ivas issued without a bond. We are not to be understood as saying that a bond should or should not have been required in case the restraining order had been set in operation for a short time only, but we do say that cases are exceptional where it would not be advisable to require a bond.

Section 1722 of the Code of Civil Procedure, as amended February 28, 1899 (Laws of 1899, page 140), provides for appeal from an order granting or dissolving an injunction, or refusing to grant or dissolve an injunction, but does not provide for appeal from an order granting or refusing a restraining order; and holding, as we do, that there is a distinction made in Section 873 of the Code of Civil Procedure between an injunction and a restraining order, we have concluded that there is no appeal from an order granting or refusing a restraining order pending the hearing of an order to show cause why an injunction should not issue.

It is not necessary, in view of the opinion expressed, to consider the point of the alleged want of proper verification to the complaint in the cause, and the further point that no bond was required.

The petition for an order of supersedeas is denied.

Denied:

Mr. Chief Justice Brantly:

I concur.

Mr. Justice Pigott :

I dissent. I am of the opinion that a restraining order is a species of injunction order, and is an order from which an appeal lies by virtue of Section 1722 of the Code of Civil Procedure as amended in 1899. I concur, however, in the remarks of the majority of the Court touching the duty of district courts in the matter of restraining and injunction orders.


source: Caselaw Access Project

author: MR. CHIEF JUSTICE BRANTLY

license: Public Domain

text:
    PARROT SILVER & COPPER COMPANY, Respondent, v. HEINZE et al., Appellants.
    (No. 1,601.)
    (Submitted January 18, 1901.
    Decided March 11, 1901.)

      Mines — Mining Location — End and Side Lines — Extralateral Bights — Common Law Bights — -Strike of Vein — Crossing side Line — Crossing End and Side Line — Appeal—Injunction.

      1. Where the owner of a mining claim sought to restrain the owner of a .neighboring claim from removing ore from beneath the surface of plaintiff’s claim, and the issue was as to the course of defendant’s vein across his claim, and the evidence was conflicting, hehl9 that the granting by the lower court, after a hearing, of an injunction pendente lite — being so largely a matter of discretion, would be sustained upon appeal, there being substantial evidence tending directly to support plaintiff’s contention as to the strike of the vein.
    2. The granting of a preliminary injunction will be sustained upon appeal where there has been a reasonable showing made in support of the application in the court below.
    3. Where a vein on its course crosses two opposite side lines of the mining claim, such side, lines thereby become in fact end lines, and the locator cannot follow the vein, either on its dip or strike, beyond vertical planes drawn through the* side-end lines.
    4. Where the apex of a vein passes through one of the parallel end lines and a side line, the extralateral rights of the locator are bounded by the vertical plane of such end line and a parallel plane extended downward through the point where the apex crosses the side line.
    5. A grant from the United States under the laws regulating the disposition of mineral lands differs from a common law grant in two respects only, to-wit: (1) it is enlarged by the addition to it of certain conditional extra-lateral rights, and (2) it is subject to the conditional extralateral rights of neighboring locators or patentees or their successors.
    <3. Under Revised Statutes of the United States, Sec. 2322, where the apex of a vein is in defendant’s location, but he has no right to follow it beyond the vertical plane of his south line owing to such line being an end line, plaintiff, whose location is situated south of that of defendant, is entitled, as against defendant, to the ores of said vein beneath plaintiff’s surface.

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

    Suit by the Parrot Silver & Copper Company against A. P. IIeinze and others to determine the title to ore bodies beneath the surface of plaintiff’s mining claim, and for injunction pendente lite to restrain defendants from removing ore therefrom. From an order granting the injunction, defendants appeal.
    Affirmed.

      Messrs. McHatton & Cotter and Mr. J. M. Denny, for Appellants.

      Mr. William Scallon, Mr. T. J. Walsh and Mr. J. K. MacDonald, for Respondent.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

Action in the nature of ejectment to determine the title to certain openings and ore bodies beneath the surface of the Adventure mining’ claim, situate in Silver Bow county. The plaintiff, upon tiling the complaint, asked for an injunction pendente lite to restrain defendants from removing the ores, in question. From an order granting the injunction the defendants have appealed.

The principal question presented by the appeal can best be understood by reference to the subjoined diagram, which illustrates the contentions of the parties:

The plaintiff is the owner of the Adventure of the claim, with all the rights conferred by a partner thereto from the United States.The defendant F. Augustus Heinze is the owner of thirty-one undivided thirty-sixths, of the Nipper claim, also patented, lying to the north. When this controversy arose the defendant Arthur P. Heinze was in possession of the Nipper claim as lessee of the interest of F. Augustus Heinze, and was engaged in mining and extracting ore at the point O, beneath the surface and within the vertical planes passing downward through tire boundaries of the Adventure claim. These operations were conducted through a “working winze” descending into the earth from the surface within the boundaries- of the Nipper claim at A, and following the vein on its dip to the south at an angle of about 75 degrees through the intervening country to the point O, at a depth of 1,300 feet below the surface. The plaintiff admits that the ore bodies at this point have their apex in the Nipper claim, but contends that the evidence shows that this apex, instead of crossing the end lines of the Nipper claim, follows the course indicated by the line B, B, B, passing across the north side line of the Nipper into the Little Mina at X, toward the northwest, and through the south side line into the Oden claim at H, and thence across the east end line of the Oden into the Anaconda, toward the southeast. ' This being the condition of the vein, it is confidently asserted that the Nipper claim has no extralateral rights, and that, therefore, since none of the intervening claims have any part of the apex, so as to give them extralateral rights, the ore bodies in controversy belong to the plaintiff by virtue of what counsel assert are its common-law rights.'

Defendants on their part contend that the evidence .shows that the apex of the vein, as demonstrated by developments at and beneath the surface within the boundaries of the Nipper claim, follows the general direction of the side lines from near the west end line, through the point of discovery at D, and crosses the south side line into the Anaconda at a point near the southeast corner of the Nipper claim. The position of the vein under this contention is indicated by the letters C, C, C. There is some evidence tó show that there is also a branch of this vein passing off in the.direction indicated by the letter Gr.

There is a sharp conflict in the evidence introduced to support these adverse contentions as to the strike of the vein. The district court issued the injunction after a hearing. It is evident, from the situation as illustrated by the diagram, that that court found in favor of plaintiff’s contention. Otherwise, its action cannot be justified upon any reasonable theory; for, if the theory of the defendants is correct, it is clear that, in following the vein on its dip, they are merely asserting their extralateral rights granted under their patent, though in doing so they pass entirely through the adjoining claims on the south and enter plaintiff’s claim.

Upon the evidence submitted the district court might have found in favor of defendants’ contention; as it did not, however, and as there is substantial evidence tending directly to support plaintiff’s contention, we do not feel justified in holding that the showing made by plaintiff was not reasonable, or that the court abused its discretion in finding as it did. The rule heretofore applied by this Court in this class of cases is that the granting of a preliminary injunction is so largely a matter of discretion that it will be sustained, upon appeal, where there has been a reasonable showing made in support of the application in the court below. (Anaconda Copper Min. Co. v. Butte & B. Min. Co., 17 Mont. 519, 43 Pac. 924; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 20 Mont. 528, 52 Pac. 273; Butte & B. Consol. Min. Co. v. Montana Ore Purchasing Co., 21 Mont. 539, 52 Pac. 375; Montana Ore Purchasing Co. v. Boston & M. Consol. Copper & Silver Min. Co., 22 Mont. 159, 56 Pac. 120.) Por present purposes, therefore, we shall assume the finding in favor of plaintiff as to the course of the vein through the Nipper claim to be correct, and proceed to determine the legal question presented upon this theory of the case.

Prom this point of view it is apparent that the apex of the vein, in its course through the Nipper claim, crosses both side lines. The defendants, therefore, have no right to* follow the vein on its dip in the direction of the Adventure claim. The supposed side lines of the Nipper claim are in fact end lines, and whatever rights its owners have to follow the vein in the direction of the Adventure are limited by a vertical plane passing downward -through the south side line extended in its own direction towards the west. “It may be considered as absolutely and finally settled that, where a vein on its course crosses two opposite side lines, the vein cannot be followed, either on its dip or strike, beyond vertical planes drawn through the sider end lines, and that the angle at which it crosses these side lines makes no difference in the application of the principle.” (2 Lindley on Mines, Sec. 588.) This is a concise statement of the jnesent condition of the law upon this subject as declared by the Supreme Court of the United States in Flagstaff Silver Min. Co. v. Tarbet, 98 U. S. 463, 25 L. Ed. 253, in Iron Silver Min. Co. v. Elgin Mining & Smelting Co., 118 U. S. 196, 6 Sup. Ct. 1177, 30 L. Ed. 98, in Argentine Min. Co. v. Terrible Min. Co., 122 U. S. 418, 1 Sup. Ct. 1356, 30 L. Ed. 1140, in King v. Amy and Silversmith Mining Co., 152 U. S. 222, 14 Sup. Ct. 510, 38 L. Ed. 419, and in Last Chance Min. Co. v. Tyler Min. Co., 151 U. S. 683, 15 Sup. Ct. 133, 39 L. Ed. 659; and the question as to what are the extralateral rights of the owner of a claim in which the apex is situated as in the Nipper is not now open to farther discussion.

It is equally as Avell settled by the adjudicated cases that the extralateral rights of the owners of the Oden claim, lying to the south between the Nipper and the Adventure, if they have any at all upon the vein in question, are limited toward the west by a vertical plane passing downward through' the point II, and parallel with the east end line of that claim. Assuming that the end lines of the Oden are parallel, a condition is presented which was considered by this Court in Fitzgerald v. Clark, 17 Mont. 100, 52 Am. St. Rep. 665, 42 Pac. 213, 30 L. R. A. 803, and the conclusion there stated is that, where the apex of the vein passes through one of the parallel end lines and a side line, the extralateral rights are bounded by the vertical plane of such end line and a parallel plane passing downward through the point where the apex crosses the side line. This case was affirmed on appeal by the Supreme Court of the United States (171 U. S. 92, 18 Sup. Ct. 941, 43 L. Ed. 81) upon the authority of Del Monte Min. & Mill. Co. v. Last Chance Min. & Mill. Co., 171 U. S. 55, 18 Sup. Ct. 895, 43 L. Ed. 72, decided on the same day. If the end lines are not parallel, the owners of the claim have m> extralateral rights.

It thus appears that neither the owners of the Nipper nor of the Oden have, by virtue of their title to the portion of the apex within' their respective boundaries, the right to follow the vein on its dip into' the ground underlying the Adventure; in other words, these claims have no extralateral rights in the direction of the Adventure.

The question presented for determination upon this condition of affairs may therefore be stated thus: Assuming that the apex of the vein from which the appellants are extracting ore beneath the Adventure surface is in the Nipper ground, and that the vein in its strike crosses both of the side lines of the Nipper, so that the owners of the Nipper may not follow the vein on its dip to the south; can the plaintiff, who owns the Adventure claim, successfully assert title to the ores in that part of the vein beneath its surface and within the planes of its exterior boundaries ? The defendants insist that it cannot do so, because, not having the top or apex of the vein within the exterior boundaries of the Adventure claim, it has. no title to the part of the vein lying under the surface, notwithstanding defendants have no title thereto. In other words, this part of the vein wras not granted to the plaintiff by its patent, and. therefore the defendants, though without title themselves, commit no wrong upon plaintiff in entering beneath the surface and taking away ores to which it has no title. This contention has no foundation either in law or reason. Under the common-law rule as. adopted in this country, a grant of lands without specific reservation conveys all rights above and beneath the surface, usque ad coelum ei ad or cum. It is not uncommon,, however, for such conveyances to make reservations of rights both above and below the surface, and the fact that this is true in a particular case in no way affects the validity of the particular conveyance.

In what respect does a grant frrnn the United States under the laws regulating the disposition of mineral lands differ from a common-law grant ? To reach a solution of this question, regard must be had to the statute itself. Section 2322 of the Revised Statutes of the United States provides: “The locators of all mining locations heretofore made, or which shall hereafter be made, * * * shall have the exclusive right of possession and enjoyment of all the surface included within the lines of their locations, and of all veins, lodes and ledges throughout their entire depth, the top or apex of" which lies inside of such surface lines extended downward vertically, although such veins, lodes or ledges may so far depart from a perpendicular in their course downward as to extend outside the vertical side lines of such surface locations. But their right of possession to such outside parts of such veins or ledges shall be confined to such portions thereof as lie between vertical planes drawn downward as above described, through the end lines of their locations so continued in their own direction that such planes will intersect such exterior parts of such veins or ledges. And nothing in this section shall authorize the locator or possessor of a vein or lode which extends in its downward course beyond the vertical lines of his claim to enter upon the surface of a claim owned or possessed by another.” If this section stood alone, it would seem to restrict the rights of the locator to the use and enjoyment of the surface only for the purpose of following the vein upon its strike and dip under the prescribed limitations as to adjoining lands. Reading this in connection with the other provisions of the chapter, however, we find that it is “lands valuable for minerals” which are reserved from sale except as otherwise directed; it is “lands” in which the deposits are found which are open to occupation and purchase; it is “land claimed and located for valuable-deposits” for which the patent may be obtained; and it is by virtue of the title secured to land that, the purchaser obtains any right whatever with reference to mineral deposits therein. Upon a valid location of. a definite portion of land is founded the right of possession. The patent grants the fee, not to the surface and ledge only, but to the land containing the apex of the ledge. The right to follow the ledge upon its dip between the vertical planes of the parallel end lines extending in their own direction, when it departs beyond the vertical planes of the side lines, is an expansion of the rights which would be conferred by a common-law grant. On the other hand, this grant is subject to the right of an adjoining locator to follow his vein upon its course downward beneath the surface included in the grant. In these two respects only do the rights conferred by the statute differ from those held under a common-law grant. “Except as modified by the statute, no reason is perceived why one who acquires the ownership or possession of such lands should not hold them with and subject to the incidents of ownership and possession at the common law.” (Doe v. Waterloo Mining Co. (C. C.) 54 Fed. 935 Leadville Mining Co. v. Fitzgerald, 4 Mor. Min. Rep. 385, Fed. Cas. No. 8,158.)

The passage quoted from the opinion of Judge Ross in Doe v. Waterloo Mining Go., supra, is directly in accord with the view expressed by the Supreme Court of Dakota in Duggan v. Davey, 4 Dakota 110, 26 N. W. 887, as well as with the result of King v. Amy and Silversmith Mining Go., supra. In the latter case the defendant was the owner of the Amy claim. The plaintiff and the defendant were tenants in common in the Non-Consolidated claim, having a common boundary with the Amy on the north. The apex of the vein in the Amy crossed both side lines and passed into the Non-Consolidated across the common boundary. The defendant had taken a large amount of ore from within that portion of the Non-Consolidated east of a plane passing downward through a line parallel with the end lines of the Amy at the point where the vein passed into the Non-Consolidated. This Court (9 Mont. 543, 24 Pac. 200) held that this ore belonged to the defendant by virtue of its right to follow the vein on its dip toward the north. Upon appeal the Supreme Court of the United States reversed the judgment of this Court, holding that the side lines of the Amy were its end lines, that the extralateral rights of the defendant toward the north were limited by the vertical plane of the north side line; and that the plaintiff, in addition to a decree of partition demanded as the principal relief, was entitled to an accounting for the ores in controversy. By reference to the diagram in the opinion in 9 Mont. 569, 24 Pac. 201, it will be ■ seen that the apex of the part of the vein to which the ore in controversy belonged was not in the Non-Consolidated, but in the Amy claim; and upon no other theory can the judgment of the Supreme Court of the United States be justified than that the owners of the Non-Consolidated were entitled to the * ore by virtue of their common-law right under their patent. The same may be said of the result of the judgment in Iron Silver Min. Co. v. Elgin Mining & Smelting Co., supra, where similar conditions existed as to the apex of the ore in controversy.

Under the provisions of the statute, as they have been construed by these and the other cases heretofore cited,' it is only the locator, or his successor, or a patentee, who has any right to follow a vein into the boundaries of an adjoining owner, and the latter, holding under a location or patent, is prima facie entitled to everything beneath his surface. He may assert this prima facie title to prevent intrusion by any one who cannot show that he comes with the right acquired by a compliance with the provisions of the statute. This conclusion is also in accord with the spirit of all the statutes regulating the disposition of the public lands, which make it manifest that it is the policy of the government to grant every right therein, except where express reservation is made.

Defendants cite and rely upon Montana Co. v. Clark (C. C.) 42 Fed. 626, and Driscoll v. Dunwoody, 7 Mont. 394, 16 Pac. 726, as conclusive of their contention. It is true that in Montana Co. v. Clark, Judge Knowles reached a conclusion directly contrary to that here stated, but that case is contrary to all the authorities so> far as we are advised, and does not meet with our approval. The case of Driscoll v. Dunwoody is not pertinent, as it does not deal with any phase of the question involved in the case at bar.

The hearing in the court below was upon oral evidence and affidavits. Objection was made by defendants to the introduction of two of the affidavits offered by plaintiff, on the ground that they were immaterial and incompetent. The objection was overruled. Defendants allege error. We have examined the affidavits in question, and conclude that the court committed no prejudicial error in admitting and considering them. One of them was immaterial, but it is apparent that, if it had been excluded, the result would not have different.

The order of the district court is affirmed.

Affirmed.


author: MR. JUSTICE PIGOTT MR. CHIEF JUSTICE BRANTLY,

text:
    CARR, RYDER & ADAMS CO., Appellant, v. CLOSSER et al., RESPONDENTS.
    (No. 1,457.)
    On Motion to Strike.
    (Submitted March 4, 1901.
    Decided March 11, 1901.)

      Neiu Trial — Notice of Intention — Appeal — Transcript— Requisites.

    Where, on appeal from an order granting a new trial, there was inserted in the transcript a copy of the notice of intention to move for a new trial, the notice not being made a part of any bill of exceptions or statement of the case on motion for a new trial, nor a constituent part of the judgment roil, as defined in Code of Civil Procedure, Sec. 1196, or in the absence of a bill of exceptions or statement on motion for a new trial containing it, one of the papers required by sections 1176, 173S, to be furnished to the appellate court, it will be stricken from the transcript.

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

    Action by the Carr, Byder & Adams Company against Eloyd Closser and another. Bindings in favor of plaintiff were entered, and from an order granting a new trial the plaintiff appeals. On motion to strike out from the transcript notice of intention to move for a new trial.
    Motion granted.

      Messrs. McHatton & Cotter, for Appellant.

      Messrs. Walsh & James and Mr. H. P. Napton, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Findings in favor of plaintiff and against the defendants having been entered in the court below, the defendants moved for a new tidal which was granted. The plaintiff has appealed from the order granting it. It now moves this Court to strike from the transcript the notice of intention to move for a new trial, on the ground that the notice is improperly included therein. •

It appears that the clerk of the court below inserted in the transcript a copy of the notice of-intention to- move for a new trial without any request therefor upon the part of the plaintiff. The notice is not made part of any bill of exceptions or statement of the case on' motion for a new trial; nor is it a constituent part of the judgment roll provided for and defined in Section 1196 of the Code of Civil Procedure; neither is it, in- the absence of a bill of exceptions or statement on motion for a new trial containing it, one of the papers required by Sections 1176 and'1738 of the Code of Civil Procedure to be furnished by copy to this Court. It is therefore not a part of the transcript or record on appeal and must be stricken out.

It is therefore ordered that the copies of the notice of intention to move for a new trial, which appear twice in the transcript, be stricken therefrom.

Motion granted.

MR. CHIEF JUSTICE BRANTLY,

having tried the cause in the court below, takes no part in the foregoing opinion.


author: MR. JUSTICE PIGOTT

text:
    MORRIS, Respondent, v. McLAUGHLIN et al., Appellants.
    (No. 1,282.)
    (Submitted March 4, 1901.
    Decided March 11, 1901.)

      Appeal — Jurisdiction—Dismissal—Sale of Personal Property - — Change of Possession — Sufficiency—Instructions.
    1. Under Code of Civil Procedure, Sec. 1723, Subd. 2, which provides that an appeal may be taken to the Supreme Court within 90 days after the entry of a judgment of a district court on appeal from an inférior court, an appeal from a judgment of a district court rendered on an appeal from a justice’s court, if not taken within 90 days after its entry, will be dismissed for want of jurisdiction.
    2. In an action, where the question of fact to which instructions complained of were applicable was whether or not a sale of personal property was accompanied by immediate delivery and followed by an actual and continued change of possession of the chattels, instructions reviewed, and held, that in view of the charge, taken as a whole, the instructions complained of were not erroneous.

      Appeal from District Court, Missoula County; Frank H. Woody, Judge.

    Action by B. Morris against II. W. McLaughlin, as sheriff of Missoula county, and another. From a judgment for plaintiff on appeal from a justice, and an order denying a new trial, defendants appeal.
    Affirmed.

      Mr. Jos. M. Dixon, for Appellants.
    In the light of all the decisions of the courts in construing the law embraced within the provisions of Section 4491, the instructions complained of were erroneous and certainly highly prejudicial to the interests of the defendants and appellants herein. (Merrill v. Hurlburt, 63 Cal. page 494; Bunting v. Saltz, 84 Cal. 168; Grum v. Barney, 55 Cal. 254; Woods v. Bugbey, 29 Cal. 466.)

      Mr. E. E. Hershey, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This action was commenced in the court of a justice of the peace. An appeal from the judgment of that court was taken to the district court of the county where the trial resulted in a judgment for the plaintiff, entry whereof was made on the 21st day of October, 1897. From an order denying a new trial the defendants have appealed. They have also; in form, perfected an appeal from the judgment.

1. Subdivision 2 of Section 1723 of the Code of Civil Procedure provides that within 90 days after its entry an appeal may be taken to the supreme court from a judgment rendered i-n a district court on appeal from an inferior court. The appeal from the judgment was taken on May 6, 1898; and not within 90 days after its entry on October 21, 1897. The appeal, being from the judgment of a district court rendered on appeal from a justice’s court, not having been taken within 90 days after its entry, is dismissed for want of jurisdiction.

2. It is not contended that the evidence was insufficient to justify the verdict, nor that there was a failure of proof. The only errors complained of on the'appeal from the order refusing a new trial are that instructions numbered 5 and 6 should not have been given. Counsel assert that these instructions were not applicable to the evidence, and do not state the law. With respect to the pertinency of the instructions it must suffice to say that they did not go beyond the evidence adduced. If therefore the court in its charge correctly declared the law the order denying a new trial was not erroneous.

The plaintiff brought this action to recover the possession of certain personal property, and the defendants justify under writs of attachment and execution issued at the instance of one of the defendants in an action brought against the vendor of the plaintiff, pleading that the chattels seized and sold under the writs were the property of the vendor and not of the plaintiff. The question of fact to- which the instructions complained of were applicable was whether or not the sale made to the plaintiff was accompanied by immediate delivery and followed by an actual and continued change of possession of the chattels. Under the evidence the jury might have found either for the plaintiff or the defendants upon this issue, — in pther words, the inferences deducible from the evidence were sufficient to have justified a finding or verdict that the sale was or was not accompanied by immediate delivery and followed by an actual and continued change of possession of the things transferred.

The jury were in effect charged, that in order for them to return a verdict for the plaintiff they must find from the preponderance of the evidence that at the time the property was taken from him it was in his possession, and that there had been an immediate delivery thereof to him at the time he claims to have purchased it from his vendor; and that such immediate delivery had been followed by actual change of possession of the property and that the change of possession had been continuous up to the time of the alleged taking by the defendants; “that in order to constitute a sale of personal property good as against creditors of the vendor, there must be an immediate delivery, followed by an actual and continued change of possession. Each of these three things, — immediate delivery, followed up. by an actual change, and continuous change, of possession, are essential, and if .there has been a failure of either of these three conditions, then such sale is conclusively presumed to be fraudulent and void as against creditors. And in this case, although you may find from the evidence that there was an immediate delivery of the hay, and that the money was actually paid therefor, still, if such delivery was not followed up by an actual and continuous change of possession, the law conclusively presumes the sale a fraudulent one as against the creditors of the vendor, and you should find for the defendants. * * * Section 4491 of the Civil Code of Montana provides that every transfer of personal property, if made by a person having at the time possession or control of the property, and not accompanied by an immediate delivery and followed by an actual and continued change of possession of the thing transferred is conclusively presumed to be fraudulent, and therefore void against those who are his creditors while he remains in possession. And if in this case you find from the evidence that the defendant Adam Reinhard was a creditor of H. R. Morris, the vendor, at the time of the sale of the hay from H. R. Morris to B. Morris, the plaintiff in this case, and such sale was not accompanied by an immediate delivery and followed by an actual and continued change of possession, that such sale is conclusively presumed to he fraudulent, and therefore void, and you should find for the defendants;” that if the jury believed that certain recited acts of the plaintiff were such as to give notice to third persons of his claim, and if they further believed from the evidence that the plaintiff immediately after the sale was in the absolute and exclusive control and possession of the chattels and that his vendor had ceased to have any possession or control of the hay, then, in order to show his ownership and possession as against the creditors of his vendor, the plaintiff would not be required to remove the chattels from the place where they were when the sale wTas made; that all the statute requires is that an immediate delivery must be made, the vendee must take actual possession, the possession must be open and unequivocal, carrying with it the usual marks and indications of ownership by the vendee; the possession must be continuous, not taken to be surrendered back again, not formal, but substantial; but it need not necessarily continue indefinitely when it is bona fide and openly taken and is kept for such a length of time as to give general advertisement of .the status of the property and claim of it by the vendee; that a transfer of personal property which is not accompanied by an immediate delivery and followed by an actual and continued change of possession is fraudulent and void as against the claim of any creditor who is such creditor during any of the time the person making the transfer remains in possession, and such creditor may cause the property to be seized in the same manner as he might have done had there been no attempted transfer by the debtor; that the consideration paid by the purchaser, or the good faith of the transaction, cannot be inquired into for the purpose of evading the force and effect of the law declaring such transfer fraudulent and void; that the rule of law is that the purchaser of goods or property must, for the protection of the public, take such possession as is usual and reasonable in view of all the circumstances of the purchase and character of the property purchased, and if he neglects this duty, then, as between himself and the creditors of the vendor, he must bear the loss resulting from his own neglect; that although the jury may believe from the evidence that the sale of the hay by the vendor to the plaintiff'was actually made in good faith, and that the plaintiff actually paid the money therefor, still, notwithstanding these facts,' if the sale of the hay was not followed by an immediate delivery and a visible, actual and continuous change of possession so as to give notice to the world that there had been a transfer of the property from the vendor to the plaintiff, then the law conclusively presumes such sale to have been fraudulent as against the creditors of the vendor. Instruction No-. 5 recites the provisions of Section of 4491 of the Civil Code, and continues: “This section lays down no new rule as to what shall constitute a delivery; any delivery that is sufficient to pass the title as between the parties is still sufficient, the statute only adding that it shall be ‘immediate;’ the word ‘actual’ is designed to exclude the idea of a mere formal change of possession; and the word ‘continued,’ to' exclude the idea of a mere temporary change.” Instruction No. 6 is as follows: “In the determination of the question as to the kind of possession necessary to be given in order to make a sale of personal property valid as against creditors, regard must be had, not only to the character of the property, but also to the nature of the transaction, the position of the parties, and the intended use of the property. The law only requires that which could naturally be done in an honest and business-like transaction where there was no thought of fraud or concealment.”

In view of the charge taken as a whole we perceive in instructions numbered 5 and 6 no error affecting tbe defendants. Tbe last clause 'of tbe sixth instruction must be read and interpreted in connection with the rest of the charge, and when so considered it has evident reference to the acts constituting an actual and continued change of possession which could naturally be performed — that is, which in the nature of things it would be possible to perform to the end that such possession be taken and continued — in an honest and business-like transaction where there was no intent to commit a fraud or conceal the fact that a transfer had been made. The idea conveyed is that if the delivery be immediate and the subsequent possession actual and continued, the statute is complied with, although acts were omitted which, if done, would have further evidenced the sort of possession prescribed by the statute. The jury were not told that anything less than such delivery and possession would satisfy the statute, nor do we think the jury were misled or confused to the prejudice of the defendants by the language of either instruction, whatever might have been the effect had it been detached from and considered independently of the remainder of the charge. The rule declared by the sixth instruction was approved in Cady v. Zimmerman, 20 Montana 225 (50 Pac. 553).

The order refusing a new trial is affirmed. Let remittitur issue forthwith.

Affirmed.


text:
    HAUSWIRTH, Appellant, v. MUELLER et al., Respondents.
    (No. 1,664.)
    (Submitted March 14, 1901.
    Decided March 15, 1901.)

      School Election — Bond Issue — Election Notice — Polling Places — Registration Notice.

    1. Under Political Code, Sec. 1940, declaring that notices of the holding of school elections, at which it is proposed to authorize bond issues, shall contain a statement of the time and place of holding the election, a notice not ¿specifying the place is insufficient when attacked before the rights of third parties became vested, or the district is estopped, assuming that either condition might exist.
    2. Where a notice of school election, at which it is proposed to authorize a bond issue, is insufficient for failure to designate the polling places, as required by Political Code, Sec. 1940, such insufficiency is not remedied by the fact that the notice of registration specifies the polling places, since Political Code, Sec. 1784, requiring notice of registration, does not require such notice to designate the polling places.

      Appeal from District Court, Silver Bow County; E. W. Harney, Judge.

    Action by Simon Hauswirth against Henry Mueller and others, as trustees of School District No. 1, Silver Bow County, Montana. From a judgment in favor of defendants, plaintiff appeals.
    Reversed.

      Mr. C. E. White and Mr. W. J. Jameson, for Appellant.

      Mr. Peter Breen and Mr. Chas. B. Leonard, for Respondents.
    The only point made by appellant is with reference to the sufficiency of the notice of the election called in pusuance of the resolution of the school trustees. If the notice comes within the requirements of the law regulating the same, it is clear that the decree of the court below was correct in refusing the appellant the injunction asked for. Every step in the matter, beginning with the resolution of the board of trustees, was carried out in the manner provided by law. We contend that the notice of election was sufficient and was a full compliance with Section 1940 of the Political Code of Montana. (Paclcwood v. Kittitas County (Wash.) 45 Pac. 640; Seymour v. City of Tacoma (Wash.) 33 Pac. 1059 ; Dillon on Municipal Corporations, Sec. 3, and cases cited; 10 Am. & Eng. Ency. of Law, 2d Ed., 632.)
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This is an appeal from a judgment entered upon an agreed statement of facts submitted to the district court of Silver Bow county under the provisions of Sections 2050, .2051 and 2052 of the Code of Civil Procedure. The sole question involved is whether or not the notice of election hereinafter set forth was in substantial conformity with the provisions of the statute prescribing the contents of such a notice. The facts material to the consideration of the question are these: School district No. 1 of Silver Bow county is a district of the first class, the population being 60,000. On March 6, 1900, the board of county commissioners of Silver Bow county designated within the district nine polling places for the election to be held on April Y, 1900, and established 29 (?) registry precincts; this action was taken under Section 1YY3 of the Political Code, as amended by House Bill No. 63, approved March 3, 1899 (Laws of 1899, p. 5Y). On March 13, 1900, the board of trustees resolved that at the school election to be held on the Yth day of April following there be submitted to the electors of the district the question whether bonds should be issued and sold to the amount of $50,000, bearing 4 per cent, interest, redeemable in 10 years and payable in 20 years, for purchasing school lots and building school houses thereon. On March 22, 1900, there were posted in three public places in the district notices of which the following is a copy:

“Notice oe School Election.
“Notice is hereby given that an election will be held on Saturday, the Yth day of April, A. D. 1900, in School District No. 1, Silver Bow County, State of Montana, for the purpose of electing four school trustees for the term beginning on the third Saturday in April, A. D. 1900, and ending on the third Saturday in April, A. D. 1902. The following question will also be submitted to the registered voters in said School District, to be voted upon at said time, to-wit: ‘Shall bonds be issued and sold to the amount of fifty thousand ($50,000) dollars, bearing four (4) per cent, interest, redeemable in ten (10) years, and payable in twenty (20) years, for the purpose of purchasing school lots and building school houses thereon?’ Polls will be open from eight o’clock a. m. to twelve m. and from one o’clock p. m. until eight p. m.
“(Signed) J. E. Moran,
“County Clerk.”

We observe, in passing, that publication in a newspaper does not seem to have been made.

On March 23, 1900, the board of county commissioners caused to be published in a daily newspaper a notice of registration describing the boundaries of each registry precinct, giving the location of the office^ the name of the registry agent therefor, the date of and the hours during which the office of the registry agent would be open and during which persons might apply and be registered, and containing also a description of the polling places as designated on March 6th by the board of county commissioners. In pursuance of the notice which was posted on March 22d, an election was held on the 7th day of April, at which 3,794 ballots were cast, 2,875 being in favor of the issuance of the bonds and 919 to the contrary. The trustees were about to issue and sell the bonds when the plaintiff sought an injunction. Except as to the failure of the notice of election to state the places of holding it, the validity of the proceedings in respect of the proposed issue of bonds is conceded. The court below decided that the notice of election was sufficient and rendered judgment dismissing the plaintiff’s “cause of action.” The plaintiff has appealed. The cause was submitted on yesterday and it is deemed advisable to render a decision immediately.

Section 1962 of Chapter VI of Title III of Part III of the Political Code, under the authority of which Chapter school trustees are authorized to issue bonds, provides that an election to determine whether bonds shall be issued shall be held in the manner prescribed in Section 1243 of Title III of Part III of the Political Code. No section bearing that number is found in Title III. Counsel for the defendants frankly state that the trustees proceeded under Section 1940 in the matter of calling the election for the issuance of the bonds. Examination of the various provisions of the Political Code touching the right to issue bonds and to- provide extraordinary funds for school purposes, makes it evident that the supposed Section 1243 (which does not exist) was inadvertently used for Section 1940, and that by a misprision or clerical error “1243” was inserted where the legislative assembly intended to put Section “1940.” If this be not true, then there is nowhere in the statutory law any provision prescribing the manner of calling and holding an election for the purpose of determining whether school district bonds shall be issued.

Section 1773 of the Political Code, as amended by House Bill No. 63, approved March 3, 1899, and appearing on page 58 of the Session Laws of that year, provides that the board of county commissioners shall at least 30 days before the annual election of school trustees designate and establish a suitable number of polling places and create an equal number of election precincts to correspond and define their boundaries. The following is an excerpt from Section 1940, supra: “Such election shall be called by posting notices in three public places in the district for at least fifteen days before the election and conducted as nearly as practicable, according to- the provisions herein made for holding annual school elections. The notice shall contain the time and place of holding the election, the amount of money proposed to be raised, and the purpose or ■ purposes for which it is intended to be used.” Section 1940b of Senate Bill No. 44, approved March 8, 1897, appearing on page 135 of the Session Laws of 1897, contains the same provision, with the additional requirement of publication of the notice in a newspaper where the school board is composed of more than three trustees. It is apparent that the notice the validity of which is questioned fails to designate any place for holding the election. In our opinion the notice of election was fatally defective and must be so- declared, at least when its validity is assailed before the rights of third persons become vested or the district itself is estopped — assuming that either condition might exist. The statute prescribes the contents of the notice of election. That notice shall state the place where the election will be held. The purpose of this provision is to impart information to the electors so' that they may know where they can deposit their ballots and thus express their wishes concerning the question whether a tax shall be imposed upon property. Whatever may be the rule with respect to the election of public officers, we are satisfied that where the statute prescribes that the notice of an election for the purpose of burdening property with a tax shall specify the place at which electors may vote, the provision is mandatory and must be substantially complied .with. No requirement of the election law is more important to be observed than that the notice of election should clearly state the particular place where the election is to be held. (People v. Caruthers School Dist., 102 Cal. 184, 36 Pac. 396.) State ex rel. Stanford v. School Dist. No. 1 of Cascade Co., 15 Montana, 133, 38 Pacific Reporter, 462, while not directly in point, is not altogether without pertinency to the question presented in the case at bar. The rule announced in Hilburn v. St. Paul M. & M. Railway Co., 23 Montana, at page 247, 58 Pacific Reporter, 551, 811, accords with the principle which we here apply.

The defendants suggest that the language quoted from Sections 1940 and 1940b does not require that the polling places should be designated in the notice and that, if such had been the design of the statute, the wording would have been “the places of holding the election,” or “the different polling places within the school district,” instead of the word “place.” We do not perceive any force in this suggestion. The statute means that the notice shall specify each place where the election is to be held, that is to say, each polling place. The singular number when used in the Political Code may, as declared by Section 16 of that Code, include the plural and the plural the singular; and such was likewise the common-law rule.

The defendants contend that notice was given to the qualified electors of the places at which they might vote. Counsel argue that since the notice of registration described the polling places there was a substantial compliance with the law. The flaw in the argument consists in the fact that the notice of registration prescribed by Section 1784, which was added to the Political Code by substitute for Senate Bill No. 56, approved March 6, 1897 (Laws of 1897, p. 136), is not required to state or specify the polling places, and therefore the description in such notice of the places where the election would be held was not constructive notice to those entitled to vote. The only means by which information of the situation of the polling places may be conveyed seems to be the notice of election given in conformity with Sections 1940 and 1940b, supra. We are not to be understood as holding that a designation of the polling places "by a notice of registration in compliance with a statute requiring the notice to state the polling places would satisfy the demand of Sections 1940 and 1940b that the polling places shall be designated in the notice of election. That question is not before us.

It is therefore ordered that the judgment entered on the 7th ■day of March, 1901, be, reversed and the cause remanded with directions to the district court to proceed in conformity with the views expressed in this opinion. "Let remittitur issue forthwith.

Reversed and remanded.


text:
    PATTERSON, Respondent, v. PFOUTS, Appellant.
    (No. 1,304.)
    On Motion to Dismiss Appeals.
    (Submitted March 19, 1901.
    Decided March 19, 1901.)

      Appeal — Rules of the Supreme Court — Briefs—Specifications of Error — Dismissal—Affirmance.
    When the appellant’s brief is not in substantial conformity with the Rules of the Supreme Court, the appeal will be dismissed on motion of the respondent ; in the absence of such motion the Court will affirm the order or judgment appealed from.

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

    Action by W. H. Patterson against W. G. Pfouts. Erom a judgment in favor of plaintiff, defendant appeals. Motion to dismiss.
    Granted.

      Messrs. Corbett & Clayberg and Messrs. Stapleton & Stapleton, for Appellant

      Messrs. McHatton & Cotter, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The respondent moves that the appeals from the order denying the motion for a new trial and the judgment be dismissed for the reason that the brief of appellant does not conform to the requirements of Subdivision 3 of Rule X of this Court.

Examination of the brief filed in behalf of the appellant discloses that it fails to contain a specification of the error or errors relied upon. We need not consider the other alleged defects in the brief. Upon authority of the numerous cases upon tbis subject, the last being Harrington v. Smith, 25 Montana, 111, 63 Pacific Reporter, 1036, the appeals are dismissed. When the appellant’s brief is not in substantial conformity with the rules the appeal will be dismissed on motion of the respondent, pursuant to Subdivision 5 of Rule X, as was done in Anderson v. Carlson, 23 Montana, 43, 57 Pacific Reporter, 439, and in other cases; in the absence of such motion the court will affirm the order or judgment appealed from, as was done in Harrington\ v. Smith, supra, in Rehberg v. Greiser, 24 Montana, 487, 63 Pacific Reporter, 41, and in other instances.

The appeals are dismissed.

Dismissed.