author: PER CURIAM.

text:
    BAKER, Respondent, v. BUTTE CITY WATER CO., Appellant.
    [No. 1,503.]
    [Submitted March 1, 1900.
    Decided March 19, 1900.]

      Appeal — ; Undertaking on Appeal — Sureties.
    1. Appellant appealed from a final judgment and from an order denying its motion for a new trial, the appeal bond was conditioned that it should be void if appellant paid ah damages and costs awarded against it “on said appeals, or on a dismissal thereof” not exceeding the sum of $300; Held, that the undertaking was insufficient in that the words “or either of them” should have been inserted in each of the alternative conditions, and because of such omission the sureties were not liable upon said unaertaking unless both appeals should be affirmed or both dismissed.
    2. Sureties are entitled to stand upon the precise terms of the obligation assumed by them.
    Mr. Justice Hunt dissenting.

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

    Action by Ben Baker against the Butte City Water Company. From a judgment in favor of plaintiff, defendant appeals.
    Motion to dismiss granted.

      Mr. William II. De Witt and Mr. J. B. Roote, for "Appellant.

      Mr. J. E. Healey, for Respondent.
   PER CURIAM.

— Motion to dismiss appeals on the ground, among others, of insufficiency of the undertaking. There are two appeals: one from a final judgment, and another from an order denying appellant’s motion for a new trial. The undertaking is in the sum of $300. It is conditioned as follows: “The condition of this obligation is such that, whereas, on the 31st day of July, 1899, in the above-entitled court and cause, judgment was entered in favor of plaintiff and against the defendant; and whereas, on the llth day of November, 1899, an order was made by said court denying defendant’s motion for a new trial; and whereas, defendant has appealed from said judgment and order to the Supreme Court of the State of Montana: Now, therefore, in consideration of such ap-peals, if the appellant will pay all damages and costs which may be awarded against it on said appeals,' or on a dismissal thereof, not exceeding the sum of three hundred ($300) dollars, then this obligation shall be null and void; otherwise, to remain in full force and effect.”

Section 1731 of the Code of Civil Procedure provides that “in case of an appeal from a final judgment, and from an order granting or refusing a new trial, taken at the same time, only one undertaking need be given.” Under section 1725 the undertaking must be to the effect that “the appellant will pay all damages and costs which may be awarded against him on the appeal, or on a dismissal thereof, not exceeding three hundred dollars. ’ ’ The point is made by the respondent that the undertaking is insufficient in that it is so conditioned that the sureties do not assume liability thereon for any damages or costs that might be awarded against the appellant, unless both appeals should be decided adversely to it, or both should be dismissed. The contention is that, in order to meet the requirements of section 1725, supra, the words “or either of them” should have been inserted in each of the alternative conditions. We think the contention correct. The respondent is entitled to all the security for his costs and damages contemplated by the statute. The sureties are entitled to stand upon the precise terms of the obligation assumed by them. Because of the omission noted they would not be liable upon this undertaking, unless both appeals should be affirmed or both dismissed. The motion must be sustained.

Let the appeals be dismissed.

Dismissed.

Mr. Justice Hunt: I think the undertaking is sufficient. (Vane v. Towle (Idaho), 50 Pac. 1004.)


source: Caselaw Access Project

author: MR. JUSTICE HUNT

license: Public Domain

text:
    STATE ex rel. FLYNN, Relator, v. FIFTH JUDICIAL DISTRICT COURT et al., Defendants.
    [No. 1466.]
    [Submitted January 26, 1900.
    Decided March 19, 1900.

      Contempt — Judgment—Fine—Costs Incurred by Complaining Witnesses — Injunction.
    1. A judgment against relator, imposing a fine and in addition costs to complaining witnesses in civil contempt proceedings for the violation of an injunction, is valid as to the fine, but void as to the costs imposed.
    2. One guilty of a contempt of court by a willful disobedience of an injunction order lawfully issued, may be punished under the summary procedure provided for by the Code of Civil Procedure, or he may be dealt with under the Penal Code as for a misdemeanor.
    3. When prosecuted under the Code of Civil Procedure, a contempt of court is in a sense a public offense, yet it is not one a prosecution for which is exclusively controlled by constitutional limitations circumscribing methods of prosecution of strictly criminal offenses.
    4. Statutory power to punish for contempt by fine and imprisonment for disobedience of an injunction order, is limited by the manner in which the statute says the power shall be exercised.
    5. Costs incurred in contempt proceedings must be paid from any fine imposed.

      Certiorari by the State, on relation of Thomas Flynn, against the District Court of the Fifth Judicial District of Montana, in and for Beaverhead County, Hon. H. M. Parker, Judge, L. J. Price, Clerk, and others, to review a judgment in contempt proceedings against relator.
    Judgment annulled.

      Messrs. Shober ds Dasch, for Relator.
   MR. JUSTICE HUNT

delivered the opinion of the Court.

Certiorari to the District Court of the Fifth Judicial District, to review a judgment of said court rendered in a contempt proceeding against Thomas Flynn, relator herein.

The affidavit of the relator sets forth that on July 17, 1899, a judgment was rendered against him in the district court iir and for the county of Beaverhead, finding him guilty of willful contempt of court, by reason of relator’s alleged violation of an order and decree of said court rendered on October 1, 1888, enjoining relator from interfering with the waters of the Blacktail Deer creek, in said county of Beaverhead, to which Peter Wilson and Thomas Wilson, the complaining witnesses in said contempt proceeding, were entitled under the terms of said decree of October 1, 1888.

The judgment rendered in the contempt proceeding is,, so far as material, as follows: “And, after the introduction of testimony on behalf of plaintiffs and defendant, the court found the defendant, Thomas Flynn, guilty of willful contempt, and fined him in the sum of five hundred dollars and the costs of the prosecution, and directed that judgment be entered against him for costs, which amounts to the sum of $304.40, and that execution issue against the said defendant, Thomas Flynn, for the same.

“Wherefore it is hereby ordered, adjudged and decreed that the plaintiffs, Peter Wilson and Thomas Wilson, do have and recover of and from the said defendant, Thomas .Flynn, the sum of three hundred four and 40-100 dollars, the costs necessarily and actually incurred by them in the prosecution of this action, and that execution issue therefor against the property of the said defendant. ’ ’

Execution was issued on said judgment at the instance of said Wilsons, and levied on the property of relator, and the execution, with the sheriff’s return thereon, which has been filed in this court by way of supplemental return, shows that the property levied upon was sold to satisfy the judgment for costs.

Section 2170 of the Code of Civil Procedure makes it a contempt of the authority of a court to disobey any lawful judgment, order or process of the court. Incase of any such contempt a method of procedure is laid down by statutes embraced in Title Y of the Code of Civil Procedure. Under appropriate forms prescribed by Title Y, relator herein was charged and taken before the district court, where there was an investigation; and it was subsequently determined that he was guilty of the contempt charged, and the judgment heretofore quoted from was entered against him under Section 2179 of the Code of Civil Procedure. A contempt of court punishable by fine or imprisonment, or both, is a public offense, under Section 15 of the Penal Code, which defines a crime or public offense as an act committed or omitted in violation of a law forbidding or commanding it, and to which is annexed upon conviction a punishment either of death, imprisonment, or fine, etc. One guilty of a contempt of court by willful disobedience of an injuntion order lawfully issued may be punished under the summary procedure provided for by Title V, supra, or he may be dealt with under the Penal Code as for a misdemeanor, under section 293, where a contempt of court is specifically made a misdemeanor.

The statutes of contempt of court in Montana were taken from California, where they have been examined and passed upon repeatedly. (Ex parte Gould, 99 Cal. 360, 33 Pac. 1112, 21 L. R. A. 751; Cosby v. Superior Court, 110 Cal. 52, 42 Pac. 460; Schwarz v. Superior Court, 111 Cal. 112, 43 Pac. 580; McClatchy v. Superior Court, 119 Cal. 419, 51 Pac. 696, 39 L. R. A. 691.) In Ex parte Hollis, 59 Cal. 408, followed in Ex parte Gould, supra, contempt of court is decided to be a public offense, punishable by indictment or information, as well as by the summary proceedings prescribed by the Code of Civil Procedure.

When prosecuted under the Code of Civil Procedure, a contempt of court is not to be regarded as a ‘ ‘criminal offense, ’ ’ to be prosecuted only by complaint, information or indictment, as laid down by Section 8, of Article III, of the State Constitution, but, rather, as a special proceeding of a criminal character — in that sense it is a public offense, yet it is not one a prosecution for which is exclusively controlled by constitutional limitations circumscribing methods of' prosecution of strictly criminal offenses. (Williamson's Case, 26 Pa. St. 19.)

The proceeding in contempt is distinct from the action wherein the injunction violated was issued; vindication of the dignity of the authority of the court is the object to be attained by the matter, and not indemity for the plaintiff in the civil suit. J udgment cannot go in favor of the plaintiff in the civil action had, unless authority to enter such a judgment exists by law. (In re Rhodes, 65 N. C. 518.) There is no statute granting such authority under the Codes. Nor was there power in the court to enter a judgment for costs. Statutory power to punish for contempt by fine and imprisonment for disobedience of an injunction order is limited by the manner in which the statute says the power shall be exercised. (Ex parte Robinson, 19 Wall. 512, 20 L. Ed. 205; Levan v. District Court (Idaho), 43 Pac. 574.)

By Section 2910 of the Penal Code, all fines collected in any court, except police courts, must be applied to the payment of the costs of the case in which the fine is imposed, and after such costs are paid the residue must be paid to the county treasurer of the county in which the court is held. This statute is applicable; hence it follows that the costs herein incurred must be paid from any fine imposed, and that that portion of the judgment wherein the Wilsons were awarded costs is invalid and of no effect. (People ex rel. v. Court of Oyer and Terminer, 101 N. Y. 248, 4 N. E. 259.)

The court exhausted its power to impose pecuniary punishment upon relator when it fined him $500. The addition of §304.40 costs was in excess of the law, and as to such excess the judgment is void.

Our opinion is that the judgment imposing a fine for contempt was valid, but the judgment for costs is void, and that the acts and proceedings had and done thereunder must be annulled. It is so ordered.


author: MR. JUSTICE PIGOTT

text:
    IN RE CRAIGIE’S ESTATE.
    [No. 1,456.]
    [Submitted January 24, 1900.
    Decided March 19, 1900. ]

      Executors and Administrators — Public Administrator — Failure to File Additional Bond — Effect—Retirement from Office — Right to Administraron — Revocation of Letters— Pleading.

    1. The fact that a public administrator — who was under an official bond oí $10,000, and otherwise qualified — failed to file an additional bond required by the district judge as further security for the interest of an estate in his hands, did not, ipso facto, create a vacancy in the office of public administrator, but was a ground for declaring a vacancy therein on judicial ascertainment only, and hence the refusal of a petition for the revocation of such letters and the appointment of another administrator, failing to specify the public administrator’s neglect to file the bond, was proper, though such failure appeared of record.
    2. The failure of a person appointed administrator to give a bond does not ordinarily or usually make letters of administration void; they are, for such reason, only irregular and voidable.
    3. It is a rule of pleading and practice that the plaintiff must state in his complaint the facts upon which he bases his action, and be confined to them in making proof and obtaining relief.
    4. The fact that a public administrator has not completed the administration of an estate on his retirement from office, did not prevent him from thereafter completing the same, since such administration did not devolve on his successor.
    5. Where the petition of a resident of the state, — after the repeal of the Compiled Statutes of 1887, — for the revocation of letters granted to an administrator appointed thereunder, and for petitioner’s appointment, on request of nonresident heirs and next of kin, failed to show that any of such heirs or next of kin was the widow, child, father, mother, brother, or sister of the intestate, he was not entitled to suchletters.
    6. Under the Codes of 1895, unless a person is a bona fide resident of the state, he is not competent to serve as administrator; and, after letters have been granted to a competent applicant, no person other than the surviving husband or wife, child, father, mother, brother or sister of the intestate may obtain the revocation of such letters for the reason that he or she is better entitled to them; nor may any competent person, at the written request of any person not embraced in the above class, obtain the revocation of the letters, and the appointment of himself.

      Appeal from District Court, Lewis and Clarice County/ 3. II. Mclntire, Judge.

    Petition by one Zimmerman, public administrator, etc., for the revocation of letters of administration on the estate of William Craigie, deceased. From an order denying the application, petitioner appeals.
    Affirmed.

      Mr. Albert 1. Loeb, for Appellant.
    The matter of the appointment of an administrator is in fieri until, and not completed till he has qualified as such administrator. The order of appointment, the qualification of the appointee, and the issuing of letters to him were all necessary proceedings to invest such appointee with the office of administrator. Kenck’s failure to comply with the order of court directing him to give a bond rendered the office vacant. [Cray's Administrator v. Cruise, 36 Ala. 559; Estate of Hamilton, 31 Cal. 161; Prior v. Downey, 50 Cal. 388, 399; Prior v. Downey, 19 Am. Rep. 656; Power v. Lenoir, 56 Pac. Rep. 106; Feltz v. Clarke, 1 Humph. 79; Moore v. Ridge-way, 1 B. Mon. 231.) The necessity for the bond is determined by the probate judge. It then became Kenck’s duty to qualify in accordance with the determination of the probate court. [Bankhead v. Hubbard, 11 Ark. 298; Sharp App. (Pa. 1887), 9 Atl. Rep. 860; Felton v. Sowles, 57 Wis. 382; Barretts. Superior Court (Cal.), 13 Pac. 520; Barrrett v. Superior Court (Cal.) 17 Pac. 592.) In addition to the fact that Kenck lost all right to administer the estate by reason of his failure to qualify, any right he may have had thereto was lost by reason of the fact the heirs directed a revocation of the letters that may have been issued to him. It has been continually held by the courts that a revocation of letters may be had upon the application of any person who has an interest in the estate. [Watson v. Clover, 77 Ala. 323; Brackett v. Williams, 110 Mass. 519; Casque v. Moody, 12 Smedom (Miss.) 153; Dowdey v. Graham, 12 Miss. 151; Fernbocker v. Fernbocker, 1 Den. (N. Y.) 227; Edwards v. Cobb, 95 N. C. 1; Pikes Estate, 15 Wis. 1.) And then it is generally held that a failure to give a bond is a ground for a revocation of letters. [Bartlett v. Placer County (Cal. 1897), 17 Pac. Rep. 592; Dmenport v. Irvine, 1 J. J. Marsh. (Ky) 60; De

      Fleshier1 s Succession, 1 La. Ann. 20; Curly v. Reed, 82 Md. 383; Ciarle v. Niles, 42 Miss. 460; In re CPBrien (Surrogate Court), 19 N. Y. Supp. 541; McFadgen v. Council, 81 N. C. 195; LongenbergeSs Estate, 148 Pa. St. 564.)

      Mr. II. S. Hepner, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Zimmerman, the public administrator of Lewis and Clarke county, has appealed from an order of the district court of that county, entered on June 3, 1899, refusing to appoint him administrator of the estate of William Craigie, deceased, and refusing to revoke letters theretofore issued to one Kenck.

In his petition for letters, filed on May 16, 1899, he states that Craigie, a resident of Lewis and Clarke county, died intestate in 1888, leaving an estate therein consisting of the sum of $4,046.79, which sum was at the time the petition was filed in the hands of T. J. Walsh, Esq., and subject to his charges and expenses as an attorney; “that the next of kin of said deceased, and whom your petitioner is advised and believes, and therefore alleges to be, the heirs at law of said deceased, are” certain persons residing without the state of Montana, whose kinship to the decedent is not specified; that he is the nominee in writing of a majority of said heirs, and is therefore entitled to letters. Annexed to the petition was the request of a majority of the next of kin that Zimmerman be appointed; and on May 31st there was filed a request, signed by the next of kin, that the letters theretofore issued to Kenck be revoked, and the public administrator appointed in his place. On the hearing the probate records disclosed these facts: On June 12, 1893, the court below directed Kenck, then public administrator, to take charge of and administer the estate of Craigie, which was then in the hands of the predecessor in office of Kenck, and ordered him to file a bond in the sum of $500. On the same day Kenck took the oath required, and letters were then issued to him. He did not, however, furnish the $500 bond. Thereafter Kenck, as administrator, duly prosecuted in the district and supreme courts an action against the sureties upon the bond of one Yaeger, formerly administrator of the estate, and recovered and collected a final judgment for $4,046.79, which sum constitutes the entire estate of the decedent. Upon these facts, Kenck objected to the granting of letters to Zimmerman; and the court below, on June 8, 1899, denied the petition, and orderd Kenck to continue his administration.

The appellant contends that the letters to Kenck should have been revoked, and his petition granted, upon any one of three grounds, namely: (1) Because Kenck never was the administrator of Craigie’s estate; (2) because his right to administer the estate ceased with the expiration of his term as public administrator, and appellant, as his successor in that office, is entitled to continue the administration; and (3) because the heirs and next of kin requested the revocation of the letters theretofore issued to Kenck, and the issuance of letters to the appellant. These points we shall briefly examine.

The appellant argues that, by reason of Kenck’s neglect to file the bond of $500 which the court required of him in 1893, the letters of administration were void, and the office of public administrator of Lewis and Clarke county became, ipso facto, vacant; and therefore Kenck never was the administrator of Craigie’s estate- The statutes in force at the time Kenck was appointed and received letters required the public administrator, before entering upon the discharge of his duties, to take the oath of office, and to execute a bond in the sum of $10,-000, conditioned for the faithful performance of his duties (Section 823, Fifth Division, of the Compiled Statutes 1887); and commanded the probate judge to require of the public administrator, from time to time, such additional bonds as might be necessary to secure the interests of estates in his hands. (Section 824.) Section 75 of the Second Division of the Compiled Statutes of 1887, which had to do with administrators other than public, provided that each person to whom letters of administration were directed to issue, must, before receiving them, execute a bond, with two or more sureties, to be approved by the probate judge, conditioned (Section 77) for the faithful performance of the trust according to law. Section 825 of the Fifth Division of the Compiled Statutes of 1887 reads as follows: “Upon failure of any public administrator to give the bond as required in this act, or as may be required by the probate judge, his office shall become vacant, and upon vacancy in the office of public administrator, from any cause whatever, the office shall be filled by appointment by the probate judge.”

By the weight of authority, supported by sound reasoning, the failure of the person appointed administrator to give a bond does not ordinarily or usually make letters of administration void. They are for such reason only irregular and voidable. (1 Woerner’s Law of Administration (2d Ed.), Sec. 253, p. *546; 11 Am. and Eng. Ency. Law (2d Ed.), 868, and note 5; Ex parte Maxwell, 37 Ala. 362, s. c. 79 Am. Dec. 62.) In Power v. Lenoir, 22 Mont. 169, 56 Pac. 106, this Court held the order appointing the guardian of a minor to be without effect, and the letters of guardianship void, because the appointee neglected to give bond; but the decision in that case rests upon reasons different from those which control where is involved, as in the present proceeding, the effect of the omission to give a bond by one appointed administrator. Nor did the provision of section 825, supra, that, upon failure of the public administrator to give the bond required by the judge, his office should become vacant, create a vacancy upon the mere happening of that event. We do not believe ,that the legislature in enacting section 825 intended to provide that a public admistrator, who is already under an official bond of $10,000, and has otherwise qualified, should, after entering upon the discharge of his duties, forthwith forfeit his office, upon omission to give an additional bond required by the judge as further security for the interest of an estate in his hands. Failure to give the bond was cause for declaring a vacancy in the office, and upon a judicial ascertainment and declaration of such omission the office would have become vacant. In our opinion, the neglect to furnish the additional bond did not of itself cause a vacancy in the office of public administrator. (Throop on Public Officers, Sec. 173; 19 Am. and Eng. Ency. Law (1st Ed.), 562r,* Sec. 7; Clark v. Ennis, 45 N. J. Law, 69.) Nothing said in this opinion is to be understood as an interpretation of Subdivision 9 of Section 1101 of the Political Code of 1895, nor as a disapproval of the decisions in People ex rel. Fleming v. Shorb, 100 Cal. 537, 35 Pac. 163, and People ex rel. Finigan v. Perkins, 85 Cal. 509, 26 Pac. 245.

Although the Codes of 1895 do not contain a statute like section 825, supra, in respect of public administrators — if it now exists, it has not been called to our attention — we do not doubt the right of the court or judge to revoke letters upon failure of the administrator to give a bond required of him. While, section 825 was the law no effort was made to apply its provisions to Kenck, and since its repeal on July 1, 1895, no application has been made either to the eourt or judge to revoke the letters because of his neglect to file the bond; nor has the court or its judge of its or his own motion done so. The petition of the appellant does not in any way, directly or by suggestion, state that Kenck failed to give the bond; the request for revocation of letters and for the issuance of them to the appellant is equally silent. There was therefore a total absence in this regard of the statement of a ground for revocation. The appellant proceeded, doubtless, upon the erroneous assumption that the letters issued to Kenck were a nullity, and if such were the fact there would have been no occasion to aver his neglect to give the §500 bond; but since the letters were only voidable the court did not err, so far as appellant is concerned, in refusing to revoke the letters and appoint the appellant upon a ground which was not stated in the petition, although appearing upon the records of the court. Good pleading and fair practice demand the enforcement of the rule that the plaintiff or applicant must state in his complaint or petition the facts upon which he bases his action or proceeding, and be confined to them in making proof and obtaining relief. The present proceeding does not fall within any exception to this rule.

The expiration of Kenck’s term in the office of public administrator did not prevent him thereafter from administering Craigie’s estate; he, and not his successor as public administrator, was entitled to the administrations pending when he went out of office; “the administration of an estate commenced by a public administrator, and not completed when his term of office expired, is nevertheless to be completed by him, and does not devolve on his successor.” (11 Am. & Eng. Enc. Law (2d Ed.) 808, and cases cited in note 4.)

The last reason urged by the appellant is that any right Kenck may have had to administer was lost by reason of the request made by the heirs and next of kin for a revocation of his letters, and for the issuance of letters to their nominee, the appellant. Kenck contends that the statutes in force when the letters were granted to him govern the right to administer. It is insisted by the appellant, on the other hand, that the statutes in force when his petition was heard are applicable. It is not necessary to determine this controversy, for upon the showing made the appellant had no right, as against Kench, to administer in either case. Chapter III. of the probate practice act was the law at the time Kenck received letters; and under the provisions of that chapter a nonresident of Montana was not competent to serve as administrator, and the request of a non-resident, other than the surviving husband or wife, that a non-resident be appointed, was a legal nullity. (State ex rel. Lancaster v. Woody, 20 Mont. 413, 51 Pac. 975; see In re Stewart's Estate, 18 Mont. 595, 46 Pac. 806.) Again: Sections 70 and 73 designated the only persons who might obtain the revocation of letters upon the ground of their superior rights; the pre-existing rights of all others were concluded or barred by the order granting letters. These sections, the latter of which is here copied in illustration merely of the intent and object of the legislature, read:

‘ ‘Sec. 70. When letters of administration have been granted to any person other than the surviving husband or wife, child, father, mother, brother, or sister of the intestate, any one of them may obtain the revocation of the letters, and be entitled to the administration, by presenting to the probate court a petition praying the revocation, and that letters of administration may be issued to him. ’ ’

“Sec. 73. The surviving husband or wife, when letters of administration have been granted to a child, father, brother, or sister of the intestate, or any of such relatives, when letters have been granted to any other of them, may assert his prior right and obtain letters of administration, and have the letters before granted revoked in the manner prescribed in the three preceding sections.”

Upon referring to the petition of the appellant and the request for revocation, it is seen, not only that each of the heirs and next of kin is a non-resident, but that no one of the heirs or next of kin is stated to be the widow, child, father, mother, brother, or sister of the intestate. It is perfectly plain, therefore, that, if the laws which were in force when Kenck obtained letters are yet operative in this proceeding, the request for revocation, based upon the prior right of those making it, was without significance. Nor is the appellant’s standing bettered by the statutes now in force. Unless a person is bona fide a resident of the state, he is not, under the present law, competent to serve as administrator; he may, however, if incompetent by non-residence only, request the appointment of a resident, and letters may be issued to such resident. (Section 2434 of the Code of Civil Procedure.) Section 2446 prescribes that letters must be granted to any applicant, although “it appears that there are other persons having better rights to the administration, when such persons failed to appear and claim the issuing of letters to themselves. ’ ’ The order granting the letters determines the question of who is best entitled thereto, and this decision is final, except as to the persons presently to be mentioned. No person other than the surviving husband or wife, child, father, mother, brother, or sister of the intestate may subsequently obtain the revocation of letters for the reason that he or she is better entitled to them. This favored or privileged class is created by sections 2460 and 2463; the latter section being identical with section 73 of the Second Division of the Compiled Statutes of 1887, supra, and the former being similar to section 70, supra, but so enlarged in its terms as to provide that any competent person at the written request of any of the persons in the class may obtain the revocation of the letters, and be entitled to the administration. If the appellant desired to avail himself of the right created by section 2460, it was, as we have said, incumbent upon him to make it appear that at least one of the heirs and next of kin who requested him to obtain the revocation of Kenck’s letters and ask letters for himself is the widow, child, father, mother, brother, or sister of the decedent. This he failed to do, and consequently he did not bring himself within the terms of the only statute which confers the right to revoke letters already issued upon the ground that those nominating him are better entitled to administer than is Kenck.

The orders appealed from are affirmed. Affirmed.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    STATE ex rel. JACKSON, Relator, v. KENNIE et al., Defendants.
    [No. 1,494.]
    [Submitted January 10, 1900.
    Decided March 26, 1900.]

      Habeas Corpus — Appeal—Certiorari—Justice of the Peace— o Security to Keep the Peace — Order of Commitment — Constitutional Law — Jury Trial.

    1. An appeal is a creature of the statute, and is allowable only where the order or judgment sought to be reviewed by this means is fairly covered by its terms.
    2. An order denying a writ of habeas corpus is not such a judgment as to render the rights of the petitioner res adjudicata, and finally to conclude him.
    3. Penal Code, Section 2270, giving the defendant an appeal to the supreme court from any judgment against liim; and Section 2272, allowing an appeal to the defendant from a final judgment of conviction, or from an order after judgment affecting his substantial rights, — do not give the right of appeal from an order denying a writ of habeas corpus, since the complainant in such a proceeding is not a defendant, and the determination of the court is not a "judgment,” within such provisions; and as the Code of Civil Procedure authorizes an appeal in civil cases only, and there is no provision for an appeal in the habeas corpus act, there can be no appeal from an order denying such a writ.

      4. The only way open to a party to have reviewed an order of a justice of the peace committing him to jail in default of security to keep the peace, is by means of the ' review allowed under the writ of certiorari.

    5. Where the relator applied to the district court for a writ of habeas corpus, and for certiora/ri to review an order of a justice of the peace in committing him to jail, at the same time, and in his application for the writ of habeas corpus attacked the validity of the commitment only, and no other proceeding of the justice, the application for certiorari was not ancillary to the application for the writ of habeas corpus, but an independent proceeding, from which an appeal might be taken.
    6. Under Penal Code, Section 1436, which requires that a magistrate committing a party to prison, in default of security to keep the peace, must specify in the order “the cause of the commitment, the requirement to give security, the amount thereof, and the failure to give the same,” an order of commitment was not insufficient Because it did not fix the term of the imprisonment.
    7. The Constitution must be construed in view of the conditions existing at the time of its adoption.
    8. Under Constitution, Article III, Section 23. declaring that the right of trial by jury shall be secured to all, and remain inviolate, the party complained of, in a proceeding in a justice court, to compel him to give security to keep the peace, is not entitled to a jury trial, since no such right existed at the time the Constitution was adopted, and there is nothing in the Constitution extending the right to any case in which it did not exist at the date of its adoption.

      Appeal from District Court, Custer County; C. II. Loud, Judge.

    Otway Jackson was committed to jail in default of security to keep the peace, and from an order of the district court denying his application for certiorari to review such commitment, and from an order denying his application for release on habeas corpus, he appeals.
    Affirmed.
    Statement ce the Case.
    On October 31, 1899, Otway Jackson, the relator herein, applied., to the Honorable C. H. Loud, judge of the Seventh judicial district, for writs of review and habeas corpus to review and annul an order of A. W. Kennie, a justice of the peace in and for Miles City township, in Custer county, whereby the said relator was committed to the county jail in default of security to keep the peace, and to secure an order directing the relator’s release from custody. The writs were applied for under separate petitions. Both were issued and made returnable before the said judge at Miles City on November 1, 1899.- On that day return was made by the justice of a complete transcript of the proceedings in his court wherein the order complained of was made, and also by the sheriff of Custer county of the warrant under which he held the relator in custody. From the record it appears that on September 6, 1899, complaint was made on oath to the said justice, by one Clara C. Jackson, that at various times, and particularly on the 3d day of September, 1899, Otway Jackson had unlawfully and maliciously threatened to commit the crime of murder upon the complainant, and that she had good ground to believe, and did believe, that the said Otway Jackson intended to injure her and take her life. The justice was asked to issue his warrant of arrest for the said Otway Jackson, and require him to furnish security to keep the peace towards the state, and particularly towards the complainant. Upon this complaint a warrant of arrest was issued, and the defendant, relator herein, brought before the justice for a hearing on September 16th. The defendant entered his plea of not guilty. Thereupon the justice heard the evidence of witnesses, and reduced it to writing, as required by law. On September 18th the justice made the following order: “The court finds that there is just reason to fear the commission of the offense charged in the complaint, and hereby orders that the defendant give bond in the sum of $1,000 to keep the peace for one year towards the state of Montana, and particularly toward Clara Jackson, the complainant in this action, and in default of such bond the defendant be committed to the jail of Custer county until such bond be given.” Thereupon, the defendant having failed to give the bond as required by this order, a warrant of commitment was issued to the sheriff of Custer county, as follows:
    “Miles City, Mont.,. Sept. 18, 1899.

      uThe State of Montana to the Sheriff of Custer County:

    “Otway Jackson having been tried before me, and found guilty of the charge of threatening to commit murder, and an order having been made by me that the said Otway Jackson furnish a bond of $1,000 to keep the peace towards the state of Montana, and more particularly towards Clara Jackson, for one year, and such bond not having been given, and in default of the same you are hereby commanded to receive him into your custody, and detain him in the common jail of Custer county until he is legally discharged or such bond given.
    ‘ ‘A. "YY. Kennie, Justice of the Peace. ’ ’
    It is alleged by the relator that the order of the justice, and the warrant of commitment thereon, were in excess of jurisdiction and void.
    (1) Because in the order there is not fixed or specified any period of time during which the imprisonment should continue; and
    (2) Because the warrant does not set forth the offense charged nor the period of imprisonment; and
    (3) Because the relator was deprived by the said justice of his right of trial by jury.
    Both applications were heard by the district judge at Miles City, on November 7, 1899, and were dismissed, and the relator was remanded to the custody of the sheriff, to be held by him under the warrant of the justice. .From this action of the district judge this appeal is prosecuted.

      Mr. John G. Lyndes and Mr. Geo. W. Farr, for Appellant.
    As sustaining the view that an appeal will lie under statutes similar to ours, see: State v. Buc7c7iam, 29 Minn. 462; In re Haonm.ill, 69 N. W. 577. See also cases cited in notes 1 and 2, pages 1073-4 of En. of PI. & Pr. Yol. 9. See the dissenting opinion by Chief Justice Bartholomew in the case of Garrut7i v. Taylor, 77 N. W. Rep. 617, giving an able and exhaustive review of the early English cases, and recent decisions. The warrant of commitment issued by the justice is void; it is wholly indefinite and indeterminate as to time, and does not set forth the offense charged, or the judgment of the justice. (21 Am. & Eng. Enc. of Law, (1st Ed.) p. 1073, note 6; Peoples. Forbes, 22 Cal. 136; 1 Bishop Cr. Prac. Sec. 1297; Was7iburn v. Belknap, 3 Conn. 502; People v. Webster, 36 N. Y. S. 995; Peoples. Reese, 53 N. Y. S. 965;
      Armstrong v. State, 88 Ala. 49; State v. Primee, 42 La. Ann. 817; 21 Am. & Eng. Enc. of Law, p. 1072; 4 Enc. of PL & Pr. p. 577; People v. Neilson, 16 Hun. (N Y.) 214; In, the matter of Trrnis, 55 How. Pr. (N. Y. Sup. Ct.) 347; United States v. Brown, 4 Crancli (CC) 333.)

      Mr. G. B. Nolan, Attorney General, for the Respondent.
   MR. CHIEF JUSTICE BRANTLY,

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

The attorney general makes the contention that there is no provision in the statutes permitting an appeal to this Court from ah order of the district court, or a judge thereof, in habeas corpus proceedings, and that this Court has no jurisdiction to entertain this appeal. His argument proceeds upon the theory that the certiorari proceeding was merely ancillary to the application for the writ of habeas corpus, and follows it; and that, if there is no appeal from the order denying this latter, there is therefore no jurisdiction in this Court to consider any question arising out of the action of the district judge in dismissing the former. The correctness of this contention depends upon the two propositions, viz: -Whether an appeal lies from the order denying the writ of habeas corpus; and, if it does not, whether the application for the writ of certiorari is so far independent of the former proceeding that the appeal may'be entertained from the order in so far as it denied this writ.

There is no provision in the habeas corpus act (Penal Code, Sections 2740-2772), upon the subject of appeal, nor is there any such provision in the title in the Penal Code under which this proceeding is classified. This title, Title XII., Chapter I., Part II., classifies the writ of habeas corpus as a special proceeding of a criminal nature. • Following out the idea suggested by this classification, in the absence of a right of appeal provided for in the title treating of this proceeding, we naturally and properly turn to the general provisions of the Penal Code, allowing appeals in criminal cases, to find if the right is provided for there. These we find in Sections 2270 — 2273, inclusive. Section 2270 provides that “an appeal to the Supreme Court may be taken by the defendant, as a matter of right, from any judgment against him.” Section 2272 allows an appeal to the defendant (1) from a final judgment of conviction; (2) from an order denying a motion for a new trial; and (3) from an order after judgment affecting the substantial rights of the party. Section 2273 enumerates the instances in which the state may appeal. Bearing in mind the rule that an appeal is a creature of the statute, and is allowable only where the order or judgment sought to be reviewed by this means is fairly covered by its terms (In re Tuohy's Estate, 23 Mont. 305, 58 Pac. 722), we must conclude that the foregoing provisions have no reference to habeas corpus proceedings, unless the order made therein can be designated as a “final judgment,” and the complainant can be properly denominated a ‘ ‘defendant. ’ ’ That this latter term is not a proper designation for a petitioner in a habeas corpus proceeding is clear from Section 2890 of the Penal Code, which provides that “the party prosecuting a special proceeding of a criminal nature is designated in this Code as the complainant, and the adversé party as the defendant. ’ A party cannot for the purpose of instituting a proceeding be the complainant, and for the purpose of prosecuting an appeal in the same proceeding shift his position to that of the defendant. Nor is the determination of a court or judge in this proceeding adverse to the complainant properly designated by the term “judgment, ’ ’ within the meaning of the foregoing provisions. Obviously, the judgment mentioned in Section 2270 is the final judgment or other order referred to in Section 2272, and embraces only those judgments and orders which become res adjudicata and final as to all matters involved in the controversy. And the rule has generally been adopted that an order denying a writ of habeas corpus is not such a judgment as to render the rights of the petitioner res adjudicata, and finally to conclude him. This was the rule at common law. (Rex v. Suddis, 1 East, 306; Church on Habeas Corpus, Sec. 386.) It is so held in California, Missouri, Illinois, Pennsylvania, Massachusetts, and North Dakota. (In re Perkins, 2 Cal. 424; In re Ring, 28 Cal. 247; Howe v. State, 9 Mo. 682; Hammond v. People, 32 Ill. 446; Ex parte Thompson, 93 Ill. 89; Com. ex rel. Lehman v. Jones, 3 Serg. & R. 158; Com. ex rel. Parker v. Blatt, 165 Pa. St. 213, 30 Atl. 674; Bradley v. Beetle, 153 Mass. 154, 26 N. E. 429; Carruth v. Taylor, (N. D.) 77 N. W. 617.) This was formerly the rule in New York. (People ex rel. Lawrence v. Brady, 56 N. Y. 182.) An appeal is now allowed in that state by statute. ‘ ‘In the federal courts of the United States the doctrine of res adjudicata does not apply to an order remanding the prisoner, and the prevailing doctrine in the state courts, in the absence of statutory provisions, is that a judgment remanding a prisoner on habeas corpus is not appealable or subject to review, and that the doctrine of res adjudicata has no application to such a case. The prisoner is entitled to the opinion of all the courts as to his freedom, and in his applications for the writ of habeas corpus may exhaust the entire judicial power of the state. ’ ’ (Church on Habeas Corpus, Sec. 386.)

From these considerations, it is clear that from an order denying the writ and remanding the prisoner no appeal lies, under any of the foregoing provisions of the Penal Code. It is equally clear that the appeal does not lie under any provision of the Code of Civil Procedure. Section 1722 of that Code, as amended by the Act of 1899, p. 146, provides only for appeals in civil cases, and has no application to any matter contained in the Penal Code. This is made clear by reference to Section 1720 of the Code of Civil Procedure, which provides that “a judgment or order in a civil action * * * may be reviewed as prescribed in this Title, and not otherwise.” It is further provided in Section 3480 that “the Penal Code defines and provides for the prosecution of a criminal action. ’ ’

W e must therefore hold that the appeal, so far as it seeks a review of the action of the district judge upon the application for the writ of habeas corpus, must be dismissed.

To support the appeal, the appellant cites Territory ex rel. McCann v. Sheriff, 6 Mont. 297, 12 Pac. 662; State ex rel. Newell v. Newell, 13 Mont. 302, 34 Pac. 28; State ex rel. Giroux v. Giroux, 15 Mont. 137, 38 Pac. 465; Id., 19 Mont. 149, 47 Pac. 798, — as conclusive. It is sufficient to say of Territory ex rel. McCann v. Sheriff, and State ex rel. Newell v. Newell that they arose under the provisions of the old Code, which were essentially different in many respects from those pontained in our present Code, and that in neither of them was the question of the right of appeal presented. This latter remark also disposes of State ex rel. Giroux v. Giroux. Though it arose under our present Code, the right of review by this Court was not called in question. Had the attention of this Court been called to the provisions of the Code as they now stand, doubtless the authority of People v. Schuster, 40 Cal. 627, would have been followed.

We are of the opinion, however, that the appeal from the order, in so far as it dismissed the certiorari proceedings, is properly before us. The relief sought thereby was the same as if the. proceeding had been instituted as an independent remedy; for its purpose was to have the district judge review the proceedings had before the justice of the peace, and to annul the order therein made, and not merely to bring up the record of those proceedings in aid of the habeas corpus.- All the substantive relief that the district judge could, under any circumstances, grant under the certiorari, was sought by the relator, and the power of the judge to act thereon was invoked to the same extent as if the habeas corpus proceeding had not been instituted. There was no appeal from the order complained of, and the only way open to the relator to have it set aside was -by means of the review allowed under this writ. (Code of Civil Procedure, Section 1941.) It is not uncommon for this writ t.d be used in this way, where it is sought to set aside a conviction in summary proceedings before a justice of the peace where there is no appeal. For this course of procedure we find sanction in the following authorities: Grieb v. Kuttner, 135 Pa. St. 281, 19 Atl. 1040; Gosline v. Place, 32 Pa. St. 520; Bacon Abr. tit. Habeas Corpus, 133; Id. Certiorari, A; Hurd on Habeas Corpus, 355, 356; Church on Habeas Corpus, Secs. 262 — 264; State v. Glenn, 54 Md. 572; In re McCutcheon, 10 Mont. 115, 25 Pac. 97. In Grieb v. Kuttner, supra, the court, after noticing the earlier cases, proceeds: ‘In Berger v. Smull, 39 Pa. St. 302, as already-noted, there was no habeas corpus, and the result of the case is that certiorari and habeas corpus may be used separately or together; and, when used concurrently, the question which is the principal writ and which merely ancillary will depend on the facts of the particular case and the nature of the relief sought. ’ ’ The office of the habeas corpus is to bring up the body only, and the court of judge will upon the return in this proceeding judge of the illegality of the imprisonment upon the commitment.. If this be irregular merely, or it does not appear therefrom that the inferior court was without jurisdiction, the complainant will be remanded. If, however, it is the purpose of the complainant to have the proceedings before the justice reviewed, and the judgment or order therein annulled, on the ground of want or excess of jurisdiction, then certiorari may issue to the justice to bring up the record, to enable the superior court or its judge to take such action therein as may be proper. The office of the writ is thus explained in the citation from Bacon’s Abridgement, supra. (In re Bion, 59 Conn. 372, 20 Atl. 662, 11 L. R. A. 694.)

Whether, under our statute (Penal Code, Sections .2753, 2754), these remarks apply generally to habeas corpus proceedings, we do nqt decide. They are certainly pertinent and applicable to the facts of this case; for the reason that the complainant in his petition for the writ of habeas corpus does not attack the validity of the order made by the justice, or the sufficiency of the evidence upon which it was based, but assails the validity of the commitment only.

We conclude, therefore, that the application to the district judge for the writ of certiorari, though .concurrent with the application for the writ of habeas corpus, was not merely ancillary to the latter proceeding, but was an independent proceeding for substantive relief, by direct attack upon the proceedings before the justice, which, as we have said, were not assailed by the habeas corpus, seeking to overturn the order resulting therefrom. In the absence of an appeal from the action of the district judge, in so far as it disposed of this proceeding adversely to the relator, he would have been finally concluded thereby. (State ex rel. Shing v. Lenahan, 17 Mont. 518, 43 Pac. 712.)

Passing now to the consideration of the appeal on this branch of the case, we shall consider briefly the contentions of the appellant in the order in which they are made.

1. Is the order of the justice void in failing to fix a term of imprisonment ? A person who has threatened to commit an offense against the person or property of another may be required by any magistrate, upon written complaint, to be arrested, and brought before him for examination. (Penal Code, Secs. 1430-1445.) The person so arrested may controvert the charge. Thereupon the magistrate must take the proof in writing. “If it appear that there is no just reason to fear the commission of the offense alleged to have been threatened, the person complained of must be discharged. ’ ’ (Penal Code, Sec. 1434.) If, however, there is just reason to fear the commission of the offense, the person complained of may be required to enter into an undertaking in such sum, not exceeding $5,000, as the magistrate may direct, with one or more sufficient sureties, to keep the peace toward the state, and particulary toward the complainant. The undertaking is valid and binding for one year, and may, upon the renewal of the complaint, be extended for a longer period, or a new undertaking required. (Id. Sec. 1435.)

If the undertaking is given, the party complained of must be discharged. ‘ ‘If he does not give it, the magistrate must commit him to prison, specifying in the warrant the cause of commitment, the requirement to give security, the amount thereof, and the omission to give the same.” (Id. Sec. 1436.)-The statute does not provide the form of the order to be made by the magistrate; but, testing the order under consideration by applying to it the provisions of the sections quoted, it appears to be a literal compliance with them. It recites a finding of just cause to fear the commission of the offense charged, it.directs security to be given for one year to keep the peace toward the state, and particularly the complainant, and directs the person complained of, in default of security, to be committed to prison until the same be given. It might have been more explicit in reciting the charge upon the proof of which the undertaking was required; but we must not exact too much technical nicety from justices of the peace, who are not experienced lawyers; otherwise the law would more often exemplify the failure, rather than the accomplishment, of justice. A reference to the complaint on file containing the charge is sufficient.

Nor does the statute require the order of the justic to fix the term of imprisonment. The purpose of the statute is to prevent crime, not to punish one already committed. Therefore the imprisonment which is the result of a failure to give bond is not a penalty for the threatened crime as proved at the hearing, but the alternative provided for preventing its accomplishment, where the person charged has refused or failed to obey the order to furnish security for the public peace. The imposition of imprisonment becomes necessary only after the other alternative has failed.

The commitment is not properly before us. upon this appeal, but we will remark of it, in passing, that it contains all the recitals required by the statute. Upon the failure to give the undertaking, the magistrate must commit the person charged to prison, specifying in the warrant (a) the cause of commitment; (b) the requirement to give security; (c) the amount thereof; and (d) the omission to give the same. In these particulars the warrant is sufficient. (In re Miller, 1 Daly, 562; Bradstreet v. Furgeson, 23 Wend. 638; Murfree, Jurisdiction of Justices, Sec. 1133.) The statute does not require it to recite the charge nor to fix the time of imprisonment. In respect of the time, the recital that security for the peace for one year has been required as the cause of commitment is sufficient.

In a proceeding of this character the person complained of is not entitled toa jury trial.' As heretofore remarked, the purpose of the proceeding is to prevent, not to punish, crime. “A binding to-goo'd behavior is not by way of punishment, but it is to show that, when one has broken the good behavior, he is not be any more trusted.” [Reg. v. Rogers, 7 Mod. 28.) Counsel in support of relator’s claim to this right, cite Section 23 of Article 111 of the Constitution, which declares that “the right of trial by jury shall be secured to all, and remain inviolate;” and also Sections 20 and 21 of Article VIII of the same instrument, providing that justices’ courts “shall have such jurisdictions in criminal matters, not of the grade of felony, as may be provided by law. ’ ’ Attention is then called to Section 68 of the Code of Civil Procedure, and Sections 1400 and 1355 of the Penal Code, defining the jurisdiction of these courts in criminal matters, and providing that “in all criminal prosecutions the aocused shall have the right to a speedy trial by an impartial jury.” Counsel contends that, in the light of the declaration of the Constitution and these statutory provisions, the right of trial by jury must be awarded to the accused in all cases of criminal cognizance by the courts of this state. In this contention, however, counsel overlooks one of the fundamental rules of constitutional construction on this subject, viz., that this instrument must be construed in view of the conditions existing at the time of its adoption, and that the right of trial by jury guaranteed under this'broad declaration is the right as it then existed, and not one created or extended, except by express terms, by the instrument itself. This rule extends to both ■civil and criminal trials, and is applied by the courts to the constitutions of all our states. (Proffatt on Jury Trial, Sec. 87; Cooley, Const. Lim. 74, 389; State v. Glenn, 54 Md. 572; Flint River Steamboat Co. v. Foster, 5 Ga. 194; Ross v. Irving, 14 Ill. 171; Anderson v. Caldwell, 91 Ind. 454; Allen v. Anderson, 57 Ind. 388; State v. McClear, 11 Nev. 39; Frazee v. Beattie, 26 S. C. 348, 2 S. E. 125; Stilwell v. Kellogg, 14 Wis. 461.) The rule is'elementary,'and so well settled that further comment is unnecessary. Looking into the history of our own Constitution, we find that at the date of its adoption, in 1889, while the right to a trial by jury existed by virtue of the territorial statutes in all cases of felonies and misdemeanors, it did not exist under the provisions of the statutes in force for the prevention of public offenses. Statutes the same in substance as those under which the relator was held in the present instance were enacted by our first territorial legislature in 1864, and have been upon the statute books of the territory and state ever since, as a substantial part of our police regulations. In such cases the right of trial by jury has never existed. There is nothing in the Constitution extending this right to any case in which it did not exist at the date' of its adoption. The provisions of the Codes cited by counsel touching the criminal jurisdiction of justices of the peace are substantially the same as they have been throughout the history of our system of laws, and have no reference to the proceeding in question here. They are applicable only to cases where the justice is clothed with the power to try and punish crimes actually committed.

The justice proceeded under the provisions of the statute, and his action was correct.

The judge of the district court should have entered an order affirming the proceedings of the justice. (Code of Civil Procedure, Sec. 1948.) The order of dismissal, however, was, in effect, the same, and his action will not be reversed for this technical error.

Let the judgment be affirmed.

Affirmed.


author: MR. JUSTICE HUNT,

text:
    COLE MANUFACTURING CO. Appellant, v. MORTON et al., Respondents.
    [No. 1186.]
    [Submitted January 30, 1900.
    Decided March 26, 1900.]

      Principal a/nd Surety — “Suretyship”—“Guaranty”—Bond Parties — Joinder.
    1. Where a part of an agreement creating an agency was a bond executed to plaintiff by the agent and the defendants conditioned that if the agent failed to perform his duties, and pay oyer to the plaintiff such sums as might be due him, the defendants would pay such sum, not exceeding $200, the defendants were sureties, within Civil Code, Section 3070, defining a surety as one who becomes responsible for another to secure a benefit to the other, and hence the agent and defendants, were properly joined in an action on the bond, under Code of Civil Procedure, Section 585, providing that persons severally liable on the same obligation, including sureties on the same or separate instruments, may be included in the same action at the plaintiff’s option.
    2. Under the Codes of 1895, there is preserved the general distinction between surety-ship and guaranty, viz: A surety is bound with the principal as an original promisor on the same contract, while a guarantor makes his own separate contract; in other words, a surety makes his contract primarily for the principal, while a guarantor makes his contract mainly for his own benefit.
    3. The liability of sureties is limited by the amount of their undertaking.

      Appeal from District Court, Missoula cou/nty; F. II. Woody, Judge.

    Action by the Cole Manufacturing Company against Charles Morton and others. From a judgment for defendants, plaintiff appeals.
    Statement oe the Case.
    The plaintiff and appellant brought this action against the defendants and respondents upon a written undertaking. Plaintiff alleges that in the spring of 1895 it entered into an agreement with the defendant Morton to the effect that Morton was to be the sole agent of the plaintiff in Missoula county, Montana, for selling goods manufactured by the plaintiff, and that said Morton was to buy of said plaintiff all goods by him to be bought of the kind manufactured by the plaintiff, and to sell the same in Missoula county, promising to pay plaintiff the prices agreed upon therefor, the defendant Morton to retain as his commission the amount that he should receive over and above the amount that he agreed to pay to plaintiff. It is further alleged that, in order to better secure the faithful performance of said contract, Morton, as principal, and the other defendants, as sureties, made, executed, and delivered to plaintiff their certain bond in writing as follows, to-wit:
    “Missoula, Sept. 12th, 1895.
    “Whereas, the Cole Manufacturing Company, of Council Bluffs, Iowa, have appointed Charles Morton, of Missoula, Montana, its sole and exclusive agent for handling and selling their Cole air-tight heaters in the county of Missoula and state of Montana, and such other supplies as may be required by him, and the said company having required of -the said Morton a bond in the sum of two hundred dollars for the faithful performance of his duties as agent aforesaid: Now, we, Charles Morton, as principal, and R. S. Sommerville and A. P. Tietjen, sureties, do hereby undertake and are bound by these presents unto the Cole Manufacturing Company of Council Bluffs, Iowa, in the penal sum of two hundred dollars, lawful money of the United States, well and truly to be paid to the said Cole Manufacturing Company aforesaid. Cbnditions as follows: That in the handling and sale of the said goods of the said company the said Morton will act faithfully, and that he will account for and pay over any and all money received by him for and on account of the sale and disposition of said goods, less his charges and commissions therefor; and, in the event that he fail to perform these conditions, we will pay the said Cole Manufacturing Company such sum as may be due from said Morton to said company, not exceeding two hundred dollars.
    ‘ ‘Given under our hands this day and date above written.
    “Charles Morton.
    “R. S. Somerville.
    “A. P. Tietjen.”
    It is then alleged that the said bond was to form a part of said agreement, and the said agreement was not to take effect until the bond was executed, signed, and delivered to and accepted by the plaintiff; that, in compliance with the said agreement, and after the bond was executed, and signed by defendants Somerville and Tietjen, and accepted by plaintiff, it sold and delivered to the said Morton certain goods to the amount of $1,138.85, no part of which has been paid except the sum of $897.50, and that the balance of $241.35 remains unpaid by Morton and his bondsmen. It is alleged that demand was made of Morton before the commencment of this action that he pay this sum of $241.35, and that a demand was also made of the bondsmen for the payment of $200, but that each of them failed and neglected to pay any sum at all.
    Somerville and Tietjen demurred generally and upon the special grounds that there was a misjoinder of parties defendant, and upon the further ground that two alleged causes of action were improperly united. The alleged misjoinder of parties defendant was because Somerville and Tietjen were made co-defendants in the same action with Morton, although the complaint showed that the alleged liability of these defendants is not joint, nor equal to the alleged liability of their said co-defendant, Charles Morton, and because the alleged liability of said two defendants does not arise from the same obligation as the alleged liability of their said co-defendant, Morton. The ground of demurrer for the alleged improper union of two causes of action was that an alleged cause of action against the defendant Morton for goods, wares,' and merchandise sold and delivered was united with an alleged cause of action against said two defendants upon a certain instrument in writing whereby they obligated themselves to pay to plaintiff for any failure on the part of said Morton to faithfully perform his duties as agent of said plaintiff as is set forth in the bond. The court sustained the general and special demurrer of the defendants Somerville and Tietjen. The defendant Morton also demurred generally and upon substantially the same two special grounds embraced within the demurrer of his co-defendants. The court overruled Morton’s general demurrer, but sustained the special demurrer. The plaintiff declined to amend, and judgment was thereafter entered in favor of the defendants Somerville and Tietjen for costs. Plaintiff appeals.

      Mr. Marcus I. Grouch, for Appellant.
   MR. JUSTICE HUNT,

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

By the execution of the obligation sued on, Somerville and Tietjen agreed to become liable to the Cole Manufacturing Company to an extent not to exceed §200 if Morton did not act faithfully in the performance of his duties as agent of the plaintiff corporation, and if he failed to account for any and all moneys received by him on account of sales, less his commissions. This contract became one of suretyship — a direct liability was incurred to the Cole Manufacturing Company for the acts to be performed by Morton. The purpose of their suretyship was to secure to Morton certain benefits of the agency created. They did not agree merely that Morton was able to perform the acts required to be performed, or promise collaterally to answer for the debt or default of Morton — which would have been a strict guaranty — but they assumed to pay over to the Cole Company such sum as might be due, not exceeding §200, if Morton himself should not pay over as he was bound to do. The nature of this undertaking was such that when Morton failed to pay over as alleged, Sommerville and Tietjen became directly responsible at once, and it was unnecessary for plaintiff to establish Morton’s failure to carry out his contract to pay over and to establish damages on account of the failure, before their obligation became absolute. (Section 3670, Civil Code; Riddle v. Thompson, 104 Pa. St. 330.)

There is preserved in the Codes the general distinction between suretyship and guaranty, which is that a surety is bound with the principal as an original promisor on the same contract, while the guarantor, makes his own separate contract. (Civil Code, Title XIII., Chapters I. and II.) Section 3610 was enacted with regard to this distinction, as it specially provides that, where a guaranty is entered into at the same time with the original obligation, or with the acceptance of the latter by the guarantee, and forms with that obligation a part of the consideration to him, no other consideration need exist, but in all other cases there must be a consideration distinct from that of the original obligation. Distinction is again observed in Section 3670 of the Civil Code, which defines a surety as one who, at the request of another, and for the purpose of securing for him a benefit, becomes responsible for the performance by the latter of some act in favor of a third person. It appears by these statutes that the surety makes his contract primarily for the principal, while the guarantor makes his contract for his own benefit, benefit to the debtor-seldom forming part of the inducement for him to make the contract.

In Bailey Loan Co. v. Seward, 9 S. D. 326, 69 N W. 58, the court considered Sections 4297 and 4273 of the Compiled Laws of Dakota, which are exactly like Sections 3670 and 3600 of the Civil Code of Montana, which in turn are like Sections .2831 and 2787 of the Civil Code of California, and used this language: “But, while the defendants, Buell and Price, used the term ‘guaranty’ in their contract, it would seem they were, under our Code, sureties, assuming, as it is apparently conceded, that they executed the guaranty to give credit to the principal debtor, and not for any benefit to themselves. Under the provisions of our Code, where such -is the case, the party is a surety, and not a guarantor, within the meaning of those terms as used in the Code. The text-books and most of the reports make no very clear distinction between a surety and a guarantor. But in preparing the Civil Code for the state of New York (but which was never adopted in that state) the commissioners, in their notes to Section 1558, of which our Section 4297 is a copy, make a clear and well-defined distinction between a surety and a guarantor. They say: ‘The distinction between a surety and a guarantor is, that the former enters into the contract primarily for the benefit of the debtor, while with the latter the benefit of the principal debtor is no part of the inducement to him to contract. ’ Civ. Code N. Y. p. 467. In other words, a guarantor is one who enters into the contract mainly for his own benefit, and not for the benefit of the principal debtor. The distinction above made was adopted by the commissioners who prepared the California Codes. See note to Section 2831, Civ. Code Cal. The chapter on guaranty and the chapter on suretyship are to be construed with this distinction in view. ’ ’

In Nading v. McGregor, 121 Ind. 465, 23 N. E. 283, 6 L. R. A. 686, the Supreme Court of Indiana said: “It is often a question of very great difficulty to determine whether a particular instrument of writing constitutes a strict guaranty, or whether it constitutes an original undertaking. In a strict guaranty the guarantor does not undertake to do the thing which his principal is bound to do, But his obligation is that the principal shall perform such act as he is bound to perform, or, in the event he fails, that the guarantor will pay such damages as may result from such failure. It is this feature which enables us to distinguish á strict or collateral guaranty from a direct undertaking or promise. So that, when an instrument of writing resolves itself into a promise or undertaking on the part of the person executing it to do a particular thing which another is bound to do in the event such other person does not perform the act himself, it is said to be an original undertaking, and not a strict or collateral guaranty. In the latter class of contracts the undertaking is in the nature of a surety, and the person bound by it must take notice of the default of his principal.5 ’

The facts and the bond in the recent case of Durand & Casper Co. v. Rockwell, (Ind. App.) 54 N. E. 771, were very similar to the case before us. Eockwell executed a bond as principal with Eudolph and Eaasch as sureties. In 1890 Eockwell entered into a contract with Durand and others by which he was to sell goods, and draw certain profits, collect accounts, and conform to any rules his employers might make. In 1894 he and two sureties executed a bond conditioned that whereas Rockwell had been made a salesman, and during his' employment there might come into his hands moneys of his employers, therefore, if the said Rockwell should pay over without loss or delay, and faithfully account for, all such moneys so coming into his possession, then the obligation was to be void; otherwise, to remain in force and effect. It was insisted that the bond was a contract of guaranty, and the lower court so regarded it; but on appeal the bond was held to be an original undertaking on the part of the sureties, and not a collateral guaranty.' The court said the sureties ‘ ‘did not undertake to pay any damages resulting from Rockwell’s default, but they undertook to do the thing Rockwell had promised to do in the event he failed. Thus this court in Wheeler v. Rohrer, 21 Ind. App. 477, 52 N. E. 780, said: ‘In a strict collateral guaranty the guarantor does not undertake to do what the principal is bound to do, but he undertakes, in the event the principal fails to do what he has promised, to pay damages for such failure. A guarantor undertakes to pay such damages as result from the principal’s default. A surety undertakes to do the particular thing if the principal fails.’ ”

Tried by these distinctions (which are really declared by the statutes), -we conclude that Sommerville and Tietjen became sureties, subject to the statutes fixing their liabilities as such. Being sureties, bound, with their principal, as original promisors on the same contract, they may be sued jointly with the principal. (McMillan v. Bank (Ind.), 2 Am. Rep. 323; Code of Civil Procedure, Sec. 585; Heppe v. Johnson, 73 Cal. 265, 14 Pac. 833; Wibaux v. Grinnell Livestock Co., 9 Mont. 154, 22 Pac. 492; Hoskins v. White, 13 Mont. 70, 32 Pac. 163; Cockrill v. Davie, 14 Mont. 131, 35 Pac. 958; Manry v. Waxelboum. Co. (Ga.), 33 S. E. 701.)

The liability: of all arose on the same instrument, at the same time, and from a breach of the same contract. The contract is referred to in the bond, and set forth with some detail in the complaint, and,, plainly, the bond was.made with relation to this contract, and as part of it. It is so averred. By the agreement Morton was to pay over to his employer moneys belonging to it, but be failed to do so; thereupon he became liable as principal, and the sureties became liable also on their contract, which afforded a security for the debt due by Morton. (Burns v. Manufacturing Co., 87 Ind. 541; Morgans. Organ Co., 73 Ind. 179; Durand & Casper Co. v. Rockwell, supra.)

The liability of the sureties is limited by the amount of their undertaking. (City of Butte v. Cohen, 9 Mont. 435, 24 Pac. 206; Hoskins v. White, supra; Wibaux v. Grinnell Livestock Co., supra.)

These views dispose of the several points raised by the demurrers. We conclude that the court erred in entering judgment against plaintiff.

The judgment appealed from is reversed, and cause remanded.

Reversed and remanded.