author: MR. JUSTICE PIGOTT

text:
    BROPHY, Respondent, v. DOWNEY et ux., Appellants.
    (No. 1,381.)
    (Submitted November 20, 1901.
    Decided January 13, 1902.)

      Action on Note Secured by Mortgage — Pleading—Unenforced Security — Defense—Loss of Security — Foreclosure.
    1. Where, in an action on a note, the answer alleges that the note was secured by a real estate mortgage executed at the same time, which has not been foreclosed, such allegation is a defense, and not a counterclaim, and hence a reply is not necessary, under Code of Civil Procedure, Secs. 720-723, 754, requiring a reply to a counterclaim.
    2. Where, in an action on a note, defendants allege that the note is secured by a mortgage which has not been foreclosed, the fact that at the commencement of the action plaintiff made an affidavit for attachment, in which he stated that without his fault such security had become worthless, could not affect the action of the court on a motion for nonsuit, where such affidavit was not offered in evidence, n’or was its contents proved.
    3. Where, in an action on a note, defendants allege that the note is secured by an unforeclosed mortgage, it is irregular to show such defense by cross-examination of plaintiff’s witness.
    4. Where, in an action on a note, the court had admitted evidence that the note was secured by a mortgage, it was error to refuse to receive evidence that the mortgage was second to another, which had been foreclosed, that the property had been sold, and the time of redemption from such sale had expired.
    5. Where a note was secured by a second mortgage, which has become of no value because of foreclosure of the first mortgage and expiration of the time of redemption, the complaint in an action on such note need not refer to such mortgage or loss of security, the action not being ,to enforce such security under Code of Civil Procedure, Sec. 1290, providing that there shall be but one action to recover a debt secured by mortgage or to enforce such security, which action must be in accord with the provisions of that chapter relating to mortgage foreclosures.
    d. Under Code of Civil Procedure, Sec. 1290, regulating actions to foreclose mortgages, and providing for a deficiency judgment after sale of the property, the holder of a note secured by a second mortgage is not required to foreclose during the period of redemption after the first mortgage has been foreclosed and the property sold thereunder, but he may wait till such period has expired and his lien is determined, and then sue on the note.
    7. Where, in an action to foreclose a first mortgage, the mortgagee in a second mortgage is made a defendant -and defaults, such action does not defeat the right of his assignee of the note to recover thereon after the time to redeem the premises from the foreclosure sale has expired.

      S. Where parties are made defendants in a suit to foreclose a mortgage, the complaint alleging that they “havef or claim to have some interest in cr claim upon said premises, * * * which interest or claims are subsequent to and subject to the lien of the plaintiff’s mortgage,” and the defendants make default, the effect of a sale of the mortgaged lands under a decree rendered therein, must be confined to liens acquired subsequent to the mortgage.

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

    ActioN by Patrick J. Brophy against Patrick Downey and wife. From an order granting a new: trial after a nonsuit,, defendants appeal.
    Affirmed.

      Mr. Dan Yancey, for Appellants.

      Mr. M. D. Leehey and Messrs. McBride & McBride, for Respondcnt-
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Action by the plaintiff, as assignee, upon a promissory note-made by the defendants to J. H. Smith & Co. on December 16,. 1891. The complaint states the execution, assignment and non-payment of the note, and judgment is demanded for the-amount thereof. The only defense pleaded which need be-mentioned is to the effect that the defendants at the time they made the note executed a mortgage on land to: secure its payment, and that the mortgage has not been foreclosed. The plaintiff treats the plea as stating facts sufficient to- constitute, a defense, and we shall assume that it does. No reply was. filed. Upon the evidence in behalf of the plaintiff a nonsuit was ordered on the ground that the defense referred to- had been established. The court granted a new tidal, and the defendants have appealed.

1. The new matter pleaded, was in defense and did not-constitute a counterclaim. Under the provisions of Sections: 120, 121, 722, 723, and 754 of the Code of Civil Procedure,, an allegation in the answer of new matter to which a reply was not required was deemed controverted. A reply was required only to allegations constituting a, counterclaim; all other new matter was deemed controverted, and hence a reply* was not necessary tp frame an issue upon a plea setting up> an affirmative defense. (Babcock v. Maxwell, 21 Mont. 507, 54 Pac. 943.) In this respect the pleadings in the case at bar must be tested by 'these sections. In Arthur v. Homestead Fire Insurance Company, 78 New York Reports, 462, 34 Am. Rep. 550 (cited in Babcock v. Maxwell, supra.), the rule deduced from similar statutes was said “to be so broad that it secures to the plaintiff the benefit of every possible answer to the defense made by way of new matter, not constituting a counterclaim, as fully as though it were alleged in the most perfect manner.' For that purpose, evidence admissible under the principles of either law or equity, takes the place of pleading.” Of the correctness of this declaration we think there can be no reasonable doubt. It is to' be observed that Senate Bill No. 31, entitled “An Act to Amend Sections 720' and 722, Chapter VI, Title VI, Part II, of the Code of Civil Procedure of Montana, relating to pleadings in civil actions,’’ approved February 22, 1899, and found at page 142 of the Session Laws of that year, which amended Sections 720 and 722, supra, so that all new matter in an answer must be taken as true unless traversed or confessed and avoided by reply, was passed after the issues in this action were made up and hence is without pertinency.

The plaintiff was therefore entitled to introduce, at the proper time, evidence tending to rebut or avoid any new matter, alleged in the answer.

'2! At the’ commencement of the action the plaintiff asserts he sought an attachment under Sections 890 and 891 of the Code of Civil Procedure, and made and .filed an affidavit rtating, among other things, that the payment of the note had not been secured by any mortgage or lien upon real or personal property, except originally by a certain mortgage upon real estate, which security had, without any act of the plaintiff or any person to whom the security was given, become valueless. He argues that this affidavit tended to prove the worthlessnenss of’ the security, and that the nonsuit was therefore erroneous, and the order granting a new trial correct. To dispose of this argument it is enough to say, that the affidavit was not put in evidence, nor was it offered. There was no evidence with respect to it. Whether it should have been excluded if offered, and what effect, if any, it would have had if received, are matters not here involved.

3. Bor the sole purpose of establishing the defense referred to, the defendants, on their cross-examination of a witness for the plaintiff, elicited evidence to prove that at the time they made the note they also made a mortgage on land to secure its payment, and that it had not been foreclosed. To the reception of this evidence the plaintiff objected as not proper to be introduced upon cross-examination, and took an exception. 'The plaintiff then offered evidence to show that the defendants on July 21, 1891, made to one McMonigle a prior mortgage-upon the same land to secure payment of a debt owing by them to McMonigle, that the mortgage had been foreclosed by suit to which J. H. Smith & Co., as subsequent lienors, were parties defendant, and that at the decretal sale, which took place some two years before the complaint in the present action was filed, the land was struck off to persons other than the defendants at a price not greater than sufficed to satisfy the McMonigle mortgage. The defendants objected that the evidence offered v. as incompetent, irrelevant, immaterial, and not warranted by the issues. The objection was sustained upon the ground that the pleadings did not “justify the introduction of the testimony sought to be introduced,’’ the plaintiff excepting.

The chief contentions of the defendants are, that in an action to recover a personal judgment for a debt, the payment of which was at any time secured by mortgage, the complaint must state that fact and then avoid its effect by appropriate averments showing that the security has become lost or valued-less by no act of the plaintiff or those through whom he traces title; that the evidence offered and excluded in this case did not tend to show such loss of security, nor that it had been exhausted; and that the omission of the plaintiff’s assignors to enforce their lien in the suit brought to foreclose the Mc-Monigle mortgage, bars the present action. These contentions are based upon Section 1290 of tbe Code of Civil Procedure, wbicb reads as follows: “Section 1290. There' is but one action for tbe recovery of debt, or tbe enforcement of any right secured by mortgage upon real estate or personal property, wbicb action must be in accordance with tbe provisions of this, chapter. In such action tbe court may, by its judgment, direct a sale of tbe encumbered property (or so much thereof as may be necessary), and tbe application of tbe proceeds of tbe sale' to tbe payment of tbe costs of tbe court and tira expenses of tbe sale, and tbe amount due tbe plaintiff; and if it appear from tbe sheriff’s return that tbe proceeds arej insufficient, and a balance still remains due, judgment can then be docketed for such balance against tbe defendant or defendants personally liable for tbe debt, and it becomes a lien upon tbe real estate of such -judgment debtor, as in other cases on wbicb execution may be issued. No person bolding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance .or lien does not appear of record in tbe proper office at tbe timei of the commencement of the. action, need be made a party to such action; and tbe judgment therein rendered, and tbe proceedings therein bad, are as conclusive against tbe party bolding such unrecorded conveyance or lien as if be bad been made a party to. tbe action.” The plaintiff’s position is that tbe existence of mortgage security is not part of tbe statement of bis cause of action, but is affirmative matter to be pleaded and proved in defense; and that, by tbe sala under decree in tbe foreclosure suit, bis security was lost without act or fault of himself or of bis assignors.

No obligation rested upon tbe plaintiff to state whether or-not there was a mortgage. Tbe fact that there was a mortgage in nowise contradicted or disproved any allegation of tbe complaint; such fact, wbicb was sought to be established as an affirmative defense and not as bearing upon any other issue, was new matter to' be proved by tbe defendants in making out their case, and not (under tbe practice prevailing in Montana) by cross-examination of tbe plaintiff’s witnesses who bad re:-mained silent upon tbe subject’. We do not bold tbat tbe admission of tbe evidence on cross-examination was prejudicial, or an error of sufficient magnitude to warrant an affirmance of tbe order awarding a new trial; upon tbis question we express no opinion. But tbe count, after admitting evidence tbat payment of tbe note bad been secured by a mortgage wbicb bad not been foreclosed, should bave received tbe evidence offered by tbe plaintiff to show tbat tbe land bad been sold under a decree foreclosing tbe prior mortgage to McMonigle, and tbat tbe sale exhausted tbe security.

Tbe evidence offered wias both relevant and material If payment pf tbe debt bad been secured by mortgage, and tbe security bad been lost or rendered valueless by tbe negligent act or other fault of the plaintiff or bis assignors, be could not, 'these facts appearing, maintain the present action. If, however, there bad been such a mortgage given, and tbe security wbicb it afforded bad been lost without fault on the part of tbe plaintiff or bis assignors, tbe action can be maintained. It lies unless payment of tbe debt was secured by mortgage at tbe time of its commencement (perhaps it could not be maintained if so secured pendente lite) or tbe security wbicb the mortgage once gave has been lost or rendered nugatory by tbe act of tbe plaintiff or bis predecessors in interest. Now, tbe period prescribed by statute for redemption from the foreclosure sale bad expired long before tbis action was begun; and unless redemption was made within tbe time fixed, tbe purchaser would, as against tbe plaintiff, be invested with tbe title, possessed by tbe mortgagors at tbe time tbe prior mortgage was made, and thereby tbe lien of tbe plaintiff’s subsequent mortgage would be extinguished. In tbe absence of a redemption, tbe purchaser was clothed with such title on tbe day when be could successfully demand a deed from tbe sheriff. In tbat event there could be nothing subject to tbe purported lien of tbe subsequent mortgage and consequently no' equity to foreclosure. Of course, if it should appear tbat tbe plaintiff or bis assignors bad redeemed tbe property from tbe sale under tbe decree foreclosing the McMonigle mortgage, or that the , defendants had either redeemed or acquired title to the property after the sale, a different question would be presented; it does not arise on this appeal. A subsequent mortgagee,, as such, has no security within the meaning of Section .1290, supra> after the property has been sold under decree foreclosing a superior mortgage and the purchaser has become entitled to a deed, no matter what the actual value of the property may have been or may be. The evidence excluded would tend to establish that the mortgage no longer secured payment of the note.

The next question is, would the evidence offered have proved that the security afforded by the subsequent mortgage had been lost through -the fault of the plaintiff or his assignors ? We are satisfied it would nofy but on the contrary would have shown, prima, facie, that such loss was without his or their fault:

(a) The subsequent mortgage remained a subsisting lien during the period of redemption, and it may be that the plaintiff could not have, maintained an action on the debt alone until the time for redemption expired. But however that may be, he could, within the period, have sued to foreclose his mortgage. Did the law impose upon him the obligation to bring such a suit within the time allowed for redemption, under penalty of losing his right of action for a personal judgment upon the debt ? Many reasons might be suggested why the duty did not rest upon him; one is, that in such a suit he would have encountered the previous sale from- which a redemption was necessary in order to make his lien of any value. Suffice it to say that he owed no such duty to- the mortgagors. He was not bound to redeem, or to sue for the foreclosure of his.mortgage within the six months allowed by statute for redemption. We, are not aware of any rule which. required the plaintiff, as a subsequent mortgagee, to sue whenever the prior mortgagee might choose to do so. (Savings Bank v. Central Market Co., 122 Cal. 28, 54 Pac. 273.) We cannot hold that he was so bound without reading into Section 1290, supra, a provision to that effect or construing the mortgage so as to include such a stipulation. We may not do either. The plaintiff’s omission to sue did not occasion the loss of the security. The plaintiff was not in fault; he violated no duty which he owed to the mortgagors. The defendants, by failing to pay the McMonigle mortgage so that the plaintiff’s mortgage might be enforced against the land, permitted and occasioned the loss. Their fault made the security valueless. The law does not prohibit a personal action when it is rendered necessary by such fault of the mortgagors. Section 1290, supra, was adopted from the Code of Civil Procedure of California, and in Merced Bomb v. Casaccia, 103 California Reports, 641, 37 Pacific Reporter, 648, the supreme court of that state says of the enactment: “The obvious purpose of the statute is to1 compel one who hasi taken a special lien [by mortgage] to secure his debt to exhaust his security before having recourse to the general assets of the debtor. When he has done this, or when, without his fault, the security has been lost, the policy of the law does not prohibit a personal action.” To the same effect are Savings Bank v. Central Market Company, supra; Otto v. Long, 127 California Reports, 471, 59 Pacific Reporter, 895; Toby v. Oregon Pacific Railroad Company, 98 California Reports, 490, 33 Pacific Reporter, 550; and Blumberg v. Birch, 99 California Reports, 416, 34 Pacific Reporter, 102, 37 American State Reports, 67.

The decision in Barbieri v. Ramalli, 84 California Reports, 154, 23 Pacific Reporter, 1086, does not necessarily conflict with the rule which we announce, for, as pointed out in Otto W. Long, supra, the plaintiff in that case held a third mortgage and brought a personal action to recover the debt, asserting the right to disregard the mortgage because the amount due on the prior mortgages exceeded the value of the securitiy. The prior mortgages had neither been foreclosed nor otherwise satisfied, and the court held, in effect, that so' long as the plaintiff had a mortgage lien on real property his action must be the one pro1-vided for; in a section of the Code of Civil Procedure which corresponds with Section 1290, supra. This was saying, in substance, that a foreclosure and sale is the special mode provided for ascertaining whether the property subject to the lien of a particular mortgage is of value as, security, — in other words, whether the mortgage is really a security for the debt. We do not understand, however, that the-only mode of ascertaining whether a particular mortgage is of value is by its foreclosure. The statute must receive an interpretation in keeping with its design and spirit, and, being a special restriction of the general right to enforce contracts by means of the usual actions, should never be so construed as to* forbid an action not plainly prohibited by its provisions. The view which 'the defendants would have us take of the section is extremely technical and does violence to its intent. Surely the exhausr tion of the security by sale under a prior mortgage or other lien upon the same property, would suffice to show that the subsequent mortgage is without value as security.

Nor is Largey v. Chapman, 18 Montana Reports, 563, 46 Pacific Reporter, 808, to the contrary of anything decided in this opinion. Largey sued Astle & Chapman to recover judgment for a debt; the defendants by answer alleged that their indebtedness to the plaintiff was secured by a chattel mortgage which had never been foreclosed, and this allegation the plaintiff admitted but contended that, notwithstanding the debt was secured, he could maintain his action upon the debt without seeking to foreclose the chattel mortgage. This court held that Largey could not thus waive the mortgage and consider* it as naught, but that, under the pleadings, his only remedy was by an action to foreclose the mortgage.

(b) At the time this action was commenced the mortgage of December 16, 1891, stood upon the records in the name of plaintiff’s assignors) who were made parties defendant in the suit to foreclose the McMonigle mortgage, the complaint alleging that they “have or claim to have some interest in or claim upon said premises or some, part thereof, as purchasers, mortgagees, judgment creditors or otherwise, which interest or claims are subsequent to and subject to the lien of the plaintiff’s> mortgage.” They did not appear, and the decree declared tbe averments of the complaint to be true. The defendants now insist 'that the plaintiff’s assignors should hare set up* their mortgage and sought its foreclosure in the former suit and that,, having failed to do so, they cannot maintain the present action. This .position is manifestly untenable. The mortgage to the plaintiff’s assignors was of record and they were made parties for the purpose of foreclosing their equitable (as distinguished from statutory) right, as subsequent lienors; to redeem. By making default they admitted the allegation; but if, for example, they had held liens superior to the McMonigle mortgage, the admission of the allegation quoted could not have affected the priority of their liens* for the effect of a sale of mortgaged lands under a decree rendered by default must, under such an allegation as the one quoted, which was not designed to tender an issue as to priority, be confined to liens acquired, subsequently to the mortgage. (Foval v. Benton, 48 Ill. App. 638; Frost v. Koon, 30 N. Y. 428; Brown v. Volkening, 64 N. Y. 76; Emigrant Industrial Savings Bank v. Goldman, 75 N. Y. 127; Smith v. Roberts, 91 N. Y. 470; Sichler v. Look, 93 Cal. 600, 29 Pac. 220.) In such a suit the inferior lienors may, if they see fit to do so, appear and obtain a decree of foreclosure, and so the plaintiff’s assignors might, as subsequent mortgagees, have sought a foreclosure in the suit upon the McMoni-gle mortgage, — but they were not bound to do so* and the omission has not deprived the plaintiff of the right to maintain this action. (Savings Bank v. Central Market Co., supra.) We cannot approve the course of reasoning or the result in Brown v. Willis, 67 California Reports, 255, 7 Pacific Reporter, 682, as we think both, are demonstrably erroneous.

As the order granting a new trial must be affirmed for the reasons stated, we deem it unnecessary td express an opinion with respect to the force or effect upon Section 1290, supra, of Section 3754 of the Civil Code, providing that “the existence of a lien, as security for the performance of an obligation, does not affect the right of the creditor to enforce the obligation without regard, to the lien.” Whether this section modifies Section 1290 is a question reserved.

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

Affirmed.


source: Caselaw Access Project

author: MR, JUSTICE PIGOTT

license: Public Domain

text:
    TAIT et al., Respondents, v. BUTTE BUTCHERING CO. et al., Appellants.
    (No. 1,366.)

      Appeal — Review—Affirmance.
    In this case, the judgment appealed from being affirmed, the supreme court refrained from encumbering the reports with the discussion and decision of questions raised by the specifications of error finally relied upon which present no new or doubtful points of law.

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

    Action by A. Tait, George Haltenhoff and William Hail;, oo-partners, against Butte Butchering Company, a corporation; Montana Dressed Meat Company, a corporation; Beaverhead Meat Company, a corporation; Silver Bow Meat Company, a corporation; and Butte Dressed Meat Company, a co-partnership ; and Samuel Binder and Drank Hamberger, individually. From a judgment in favor of plaintiffs and from an order denying a new trial, the defendants appeal.
    Affirmed.

      Messrs. Campbell & Parr, for Appellants.

      Mr. H. N. Harwood and Mr. J. M. Hinkle for Respondents.
   MR, JUSTICE PIGOTT

delivered the opinion of the court.

In 'this action the plaintiffs, who were engaged in the business of butchering and selling meats and butchers’ supplies, sought to recover of the defendants, who were carrying on the same business, a judgment fo® $10,000, claiming that amount as damages proximately caused to their business by unlawful acts committed by the defendants as members of the Montana Retail -Butchers’ Protective Association in pursuance of an alleged conspiracy entered into- by them and others for the purpose of preventing the plaintiffs from selling meats to retail tradesmen and also of preventing them from selling at a less price than that established by the association named. Trial was had by jury, who returned a verdict for $1,000. Prom the judgment entered thereon and frornl an order denying, their motion for a new trial the defendants; have appealed.

Por many days our undivided attention was given to- the voluminous transcript and the printed arguments of counsel. Repeated examinations and thorough discussions have satisfied us that the record does not disclose any error, now relied upon, which was prejudicial to the defendants*. Disregarding the objection interposed (and seemingly well taken) by the plaintiffs to the mode in which the question touching the sufficiency of the evidence is attempted to be presented in the defendants’ brief, we are of the opinion that the verdict was justified by the proofs. The questions raised by the specifications of error present no new, or doubtful points* of law. To state, discuss-, and decide them would not serve any useful purpose in the case at bar, nor be of sufficient value as a precedent to warrant an extended opinion. We therefore refrain from encumbering the records and reports with comparatively useless matter. (Bandmann v. Davis, 23 Mont. 382, 59 Pac. 856.)

The judgment and the order are affirmed. Remittitur may issue forthwith.

Affirmed.


author: MR. JUSTICE MILBURN

text:
    LARGEY, Appellant, v. MANTLE, Respondent. OWSLEY, Intervenor and Appellant.
    (No. 1,063.)
    (Submitted November 14, 1901.
    Decided January 13, 1902.)

      Trial — Instructions—General Charge.

    where requested instructions are sufficiently covered by the general charge, it is not error to refuse them.

      Appeal from, District Court, Silver Bow• County; J. J. Melt aitón, Judge.

    ; Action by P. A. Largey against Lee Mantle, defendant, and William Owsley, intervenor. Erom a judgment for defendant, and from orders denying a new trial, plaintiff and intervenor appeal.
    Affirmed.

      Mr. John W. Cotter, for Intervenor and Appellant.

      Mr. F. T. McBride, for Plaintiff and Appellant.

      Messrs. Boote & Clark, for Respondent.
   MR. JUSTICE MILBURN

delivered the opinion of the court.

This action was commenced by the plaintiff against the defendant to recover the sum of $15,000, alleged to have been received by defendant for the use and benefit of plaintiff, for that a certain mining claim, called “Britannia,” and held in the name of the defendant, was the common property of the plaintiff and the defendant, and was sold by defendant for the sum of $30,000, the plaintiff having fully paid all charges and expenses owing by him for developing the claim, etc. By. leave of court one Owsley intervened, and claimed for himself the said sum, of $15,000, for that ba was the owner of the undivided one-half interest in the said Britannia lode claim-. Defendant denied that either owned any interest in the property, or had any interest in the proceeds of the sale. The jury found all the issues' in favor of the defendant, and judgment was entered accordingly. The plaintiff and the intervemor severally appealed from the judgment, and from an order denying their motions for a new¡ trial.

The plaintiff argues his appeal upon the alleged error of the court in giving certain instructions and in refusing’; others1. The intervenor does the like, adding that the court erred in overruling his objection to a certain question asked by defendant of a witness named Allpo-rt.

We find nothing prejudicial to either the plaintiff or the in-tervenor in these matter’s. The instructions given and complained of are not all very clear, but were snch as could be easily understood when read in connection with the rest of the charge; and those refused,’ so far as they stated the law, were sufficiently covered by those given.

We find no substantial error to; the prejudice of either the plaintiff or the interevenor.

The order denying the motion for a new trial and the judgment are affirmed.

Affirmed.


text:
    HEINZE et al., Respondents, v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., Appellant.
    (No. 1,680.)
    (Submitted October 9, 1901.
    Decided February 3, 1902.)

      Mines and Mining — Injunction Pendente Lite — Appeal — Review.

      .1. Where there is no substantial evidence tending to support an injunction order, the same will, on appeal, be reversed.
    2 On appeal from an order granting an injunction pendente lite, the supreme court will not reverse the order, although the evidence tending to prove the identity and continuity of veins would be insufficient upon a trial of the issues on the merits.

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

    ActioN by F. Augustus Heinze, and the Johnstown Mining Company, a corporation, against the Boston & Montana Consolidated Copper & Silver Mining Company, a corporation. From an order granting an injunction pendente, lite, the defendant appeals.
    Reversed in part.

      Messrs. Forbis <& Fvans, for Appellant.

      Messrs. McHatton & Cotter, Messrs. Toole & Bach, and Mr. James M. Denny, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

The plaintiffs, asserting title in themselves to the Minnie Healy lode claim and to a certain vein alleged to bave its apex therein and to' dip to the north beneath the Piccolo' and Gam-betta lode claims owned by the defendant, brought an action against the defendant to quiet their title and to enjoin the der fendant from trespassing thereon. Upon the complaint and an affidavit in support thereof, the judge below issued a restraining order' against the defendant, and also an order to show cause why an injunction pending the action should not be granted. After a hearing the order to show cause whs made absolute on April 25, 1901, and an injunction pendente Hie granted as prayed for in the complaint. From this order the defendant has appealed.

We have devoted much time to the study of the transcript and ¿brief s, consisting of 310 printed pages and eight maps of the property in dispute. No useful purpose would be served by a statement or discussion of the evidence. The sole question raised is whether the evidence was sufficient to justify the order of injunction. As to the “Leonard” vein, the apex of which is in ground belonging to the defendant north of the Gambetta lode claim, and which dips to the south, there was no substantial evidence whatever .tending to support the order. With the order in soi far as it affects the Gambetta vein we do not feel disposed to interfere upon this appeal, although the evidence tending to prove the identity and continuity of that vein with the vein having its apex in the Minnie Healy would be insufficient upon a trial of the issues on the merits.

The injunction order should be modified so as to exclude from its operation the “Leonard” vein throughout its length and depth, leaving in force the order so far as it enjoins the defendant from entering upon the Gambetta vein and extracting ore therefrom. To accomplish this purpose we think the order should, in the present state of development and under the evidence adduced, go no further than to’ enjoin the defendant from entering upon (except for the purpose of passing to and from ground to which the injunction order of the district court does not apply, and for the purpose of keeping the openings in repair) or mining, or extracting ore from, any of the ore bodies ■embraced and described in the injunction order of the district court, lying towards the south of a plane descending vertically into the ear th on a line par allel with the south side line of the Piccolo lode claim and passing through the point at which the north side line of the Gambetta lode claim intersects the third, or 300 foot, level south of the “Leonard shaft.”

The cause is therefore remanded with direction to' the district court forthwith to vacate so much of the order as enjoins the defendant from entering upon or working, or extracting ore from the Leonard vein, or from any vein or veins lying to'wards the north of the plane indicated, and also from entering upon or using any levels or openings in the possession of the defendant and passing to the south of the plane or lying on either side thereof, as the means of access to' other openings and workings of the defendant not described and embraced in the injunction order appealed from. In the event the plaintiffs shall, within thirty days after the remittitur be lodged with the clerk, apply for a new hearing of the order to show cause, the court below is directed to set aside and vacate the order of April 25, 1901, in its entirety and to grant a new hearing; if such application be not made within the prescribed period, then the order of this court modifying the order of April 25, 1901, shall become absolute and the court below will, upon motion, cause to be entered a formal order in conformity with the views herein expressed. The defendant will recover the’ costs of appeal.

Reversed in part, with directions.

Rehearing denied February 6, 1902.


author: MR OHIE.F JUSTICE BRANTLT

text:
    MURRAY, Respondent, v. NORTHERN PACIFIC RAILWAY COMPANY, Appellant.
    (No. 1,710.)
    On Motion to Dismiss Appeal.
    (Submitted January 28, 1902.
    Decided February 6, 1902.)

      Appealable Order.

    An appeal from an order by tbe district court taxing costs will not lie.

      Appeal from District Court, Lewis and Clarice County; J. M. Clements, Judge.

    Suit by Patrick M.' Murray against the Northern Pacific Railway Company. From an order taxing, costs, defendant appeals.
    Dismissed.

      Mr. William Wallace, Jr., for Appellant.

      Mr. R. R. Purcell, for Respondent.
   MR OHIE.F JUSTICE BRANTLT

delivered tbe opinion of tbe court.

Tbis is an attempted appeal from an order made by tbe district court taxing costs. Plaintiff bas moved to dismiss tbe same on tbe ground tbat tbe order is not appealable. Tbe mo tion is sustained upon tbe authority of State ex rel. Pierson v. Millis, 19 Mont. 444, 48 Pac. 773, and tbe oases therein: cited. We see no reason wby tbe rule long followed in tbis jurisdiction, as appears from these cases, should now be changed.

Dismissed.


text:
    HURLEY, Appellant, v. O’NEILL, Respondent.
    (No. 1,485.)
    (Submitted January 24, 1902.
    Decided February 10, 1902.)

      Tenancy in Common — Oral Partition — Bona, Fide PurcJiaser —Notice—Evidence—Burden of Proof.

    1. where the title under which tenants in common have held possession is of record and is consistent with the occupancy, the possession must be referred to the record title, and it will not be constructive notice of any other title, legal or equitable.
    2. Plaintiff, purchasing the undivided half interest of S. in a lot, as shown by the record, has not constructive notice of an oral partition of the lot by S. and O., his co-tenant, from the fact that 0. had for years paid the taxes on a certain half of the lot.
    3. Plaintiff, at the time she took a deed for the undivided half interest of S. in a lot, is not shown to have had actual notice of an oral partition by S. and O., his co-tenant, by the fact that she thereafter paid the taxes on the part S. had occupied, and when O. forbade her sweeping her dirt onto the part occupied by him, she said that O.’s deed was not fixed right, and that she could do what she felt like till there was a division.
    4. Held, that, under the circumstances of the case, the burden of proving actual notice of an oral partition between tenants in common rested upon the party a.leging such notice.
    5. The supreme court upon reversing a judgment will not order the court below to render judgment for the appellant as prayed for, where such order might work injustice to the respondent.

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

    ActioN by Mary Ann Hurley against Patrick O’Neill. Judgment for defendant. Plaintiff appeals.
    Reversed.

      Messrs. Sinclair & Dygert, for Appellant.

      Mr. John N. Kirk and Mr. N. W. McConnell, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of tbe court.

Tbis is an action to partition a lot 100 feet in length by 30 feet in width, situate in the -city of Butte. The complaint states, in substance, that the plaintiff and the defendant are owners (except as to the minerals therein) as tenants in common of the property, each owning an undivided half interest. The defendant by answer denies the ownership in common alleged in the complaint, 'and sets up> that he and one Sullivan purchased the lot in 1889, and that at the time of the purchase it was agreed between them that Sullivan was purchasing and acquiring title to the east 50 feet of the lot and the defendant was purchasing and acquiring title to the west 50 feet thereof; that in pursuance of the agreement the defendant built a house upon the west half and ever since has occupied the same as his home, and that Sullivan built a house upon the east half and occupied it as his home until some time in 1894 when, for a valuable consideration, he sold and conveyed his interest in the lot to plaintiff; that the plaintiff at the time of purchasing the interest well knew that the interest of Sullivan was only the east 50 feet of the lot and that Sullivan had and claimed to have no interest whatever in the west 50 feet; and that since the purchase by the plaintiff she has lived upon and occupied the east 50 feet, claiming no interest whatever in the west 50 feet occupied by the defendant. A trial was had by the court sitting with a jury. A general verdict and special findings for the defendant were returned; these the court adopted and rendered judgment in favor of the defendant decreeing, title in him to the west 50 feet of the lot. The plaintiff has appealed.

The following facts were established by the evidence and the findings: On the 17th day of July, 1889, the persons who were then the owners of the lot in question conveyed it by deed (reserving the mining rights and minerals) to the defendant and Sullivan as tenants in common. This deed was duly recorded in September of the same year. The defendant and Sullivan had orally agreed between themselves that each was. to own in severalty one-half of the lot, and shortly after the purchase it was orally understood between them that the defendant was the owner of the west half and Sullivan the owner of the east half of the lot. Soon after’ the purchase O’Neill built a three-room frame house costing $437 on the west half, and Sullivan built a house costing $425 on both sides of an imaginary line dividing the lot into halves, a part of the Sullivan house being on the west end and a part on the east end. The west end of the lot faces on Montana street, but there is no means of ingress to or egress from the east half of the lot except through the west half, unless by'the consent of those owning the property adjoining the east half of the lot. The defendant and Sullivan with their families occupied the lot, each living in the house built by him, until the 26th day of March, 1895, when Sullivan granted his undivided onedialf interest in the lot to the plaintiff, who immediately entered into possession of the house previously occupied by Sullivan, and has lived there ever since with her family. The deed to the plaintiff was duly recorded on the 3d day of April, 1895. As shown by the records of Silver Bow counly, the .plaintiff is the owner of an undivided one-half interest in the lot. At the time Sullivan sold and conveyed to' the plaintiff, the records, showed that Sullivan and the defendant were tenants in common. There was nothing to indicate ownership in severalty. There was a fence on the west end of the lot along the line of Montana street, but there was no fence or other evidence of a division between the east and west parts. The defendant had paid taxes on the west half of the lot since 1889, bnt it does not appear that' the plaintiff had notice or knowledge thereof when she purchased from Sullivan.

1. So far as) appearances went, all that had been done by O’Neill and Sullivan was consistent with their rights as tenants in common, and their occupancy did not serve to charge the appellant with constructive notice of the rights of O’Neill and Sullivan as between themselves. The title under which they might have held possession being of record and being consistent with the occupancy, the possession must be referred to the record title and will not be constructive notice of any other title, legal or equitable. (Mullins v. Butte Hardware Company, 25 Mont. 525, 65 Pac. Rep. 1004.) It is true that the defendant paid the taxes assessed to him on the west half of the lot from 1889 down to the date of the trial; this fact was not constructive notice of the defendant’s equitable title arising by virtue of the supposed oral partition; moreover, it was consistent with the title appearing of record. (Mullins v. Butte Hardware Co., supra.) Upon this branch of the case suffice it to say that there was no evidence whatever tending to charge the plaintiff with constructive notice of the equitable rights of the defendant.

2. With respect to actual notice, the defendant himself testified that at no time before August, 1897, which was more than two years after the plaintiff purchased from Sullivan, did he intimate to her or assert in her presence any claim in severalty to the west half of the lot, nor was there any evidence tending to show that she had actual notice, either express or implied, -of his supposed rights under the oral partition between himself and Sullivan. The defendant contends that there are two items of evidence which show that the plaintiff had knowledge or actual notice of his title at the time she purchased from Sullivan: Until August, 1897, the plaintiff and the defendant with their families had made common use of the lot for such domestic purposes as they desired without objeo tion, let or hindrance; but the defendant testified that in that month he forbade the plaintiff to “sweep her dirt over into our yard, and I told her one evening that she must not do it, and to keep her own place like the other parties did — Mr. Sullivan — and she told me * * * that I did not fix my deed rig’ht, and that she could do what she felt like until it was divided. I then took a surveyor to the lot and had it surveyed, and stakes were put up and designated the dividing line in the hundred feet, and her house stood a little on my ground. I then built a water closet and a wood shed and put up a fence and left the gate for Mrs. Hurley to go in and out at, and Mrs. Hurley chopped the fence up, I believe.” The other item is the payment by the plaintiff since 1895 of taxes on the house occupied by her and on the east 50 feet of the lot. It is apparent that these two1 items, whether 'considered separately or together, fall short, in themselves, of being sufficient to' justify the inference that the plaintiff when she'purchased the undivided one-half interest from Sullivan in March, 1895, had notice of the equitable rights of the defendant. This was all the evidence upon the question of actual notice. Under the circumstances of the case the burden of proving such notice was upon the defendant. (Hull v. Diehl, 21 Mont. 71, 52 Pac. Rep. 782; Mullins v. Butte Hardware Co., supra.) He failed to discharge the burden, and the plaintiff was entitled to judgment in partition as prayed for in her complaint. Her counsel asks that the court below be instructed to1 render judgment as prayed for; but for the reasons stated in Westheimer v. Goodkind, 24 Montana Reports, at page 108 (60 Pac. Rep. 813), we think the judgment should be reversed and the cause remanded for a new trial.

The judgment is therefore reversed, and the cause is remanded with. direction to grant a new trial.

Reversed and remanded.


author: ME. CHIEF JUSTICE BEANTLY Mr. Justice Pigott: Mn. Justice Mil-burst:

text:
    STATE ex rel. HENNESSY et al., Relators, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, Respondent.
    (No. 1,778.)
    (Submitted February 11, 1902.
    Decided February 11, 1902.)

      Writ of Supervisory Control — Remedy by Appeal — Question of Title.

    On a 'denial of an order permitting a survey and inspection of a mining claim, the supreme court will not grant a writ of supervisory control, there being a remedy by appeal from the judgment finally rendered in the cause, and a question of title involved in the cause being one for the district court in the first instance.
    PetitioN by tbe state, oe Ttbe relation of Patrick J. Hennessy and another, for a writ of supervisory control to the Second judicial district court of the state of Montana for Silver Bow county.
    Writ denied.

      Mr. T. Bailey Lee, for Eelators.
   ME. CHIEF JUSTICE BEANTLY

delivered the opinion of the court.

Application for a writ of supervisory control. Petition was filed in the district court of Silver Bow county by plaintiff in a suit therein pending for an order permitting a survey and inspection of a mining claim. The order was denied for the reason that, in the opinion of the district court, the plaintiff failed to show any interest in himself in the property in controversy.

The writ is denied, for the reason that the question involved, if properly reserved, may be reviewed on appeal from the judgment finally rendered in the cause, and no exigency is shown requiring immediate interference by this court; and also because to grant it would require tbis court prematurely to- pass upon the question of title, and thus adjudicate the ultimate rights of the parties, which must be1 done by the district court-in the first instance.

Writ denied.

Mr. Justice Pigott:

I concur.

Mn. Justice Mil-burst:

I concur in the result.


author: Mil. CHIEF JHSTICE BBANTLY

text:
    STATE ex rel. DONOVAN, Plaintiff, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT, Defendant.
    (No. 1,779.)
    (Submitted February 13, 1902.
    Decided February 14, 1902.)

      Perjury — Preliminary Examination^ — Sufficiency of Evidence —Habeas Corpus — Filing Information — Leave of Court— Writ of Supervisory Control.

    1. On a preliminary examination for perjury before a committing magistrate, where the decree in the cause in which the alleged false testimony was given is offered in evidence, but the judgment roll is not admitted or considered, the evidence fails to show that the alleged false testimony was material to any issue in the cause, and the party cannot be held for trial.
    2. On habeas corpus to secure the discharge of a prisoner held for perjury, where the petition avers that the transcript of the evidence in the case in which the alleged false testimony was given contains all the evidence, and the prosecuting attorney does not controvert such allegation, but the transcript doe^ not show that the judgment roll was admitted or considered, the court will assume that it was not received, and therefore will grant the writ.
    3. Under Penal Code, Secs. 1730-1732, no leave of court is necessary to file an information after commitment on preliminary examination, and a writ of supervisory control will not issue to compel the granting of leave.
    4. Under Penal Code, Sees. 1730-1732, leave to file an information without a preliminary examination may be granted or refused, within the sound discretion of the court, when no statement is made to the court of the evidence upon which the state relies for a conviction, and a writ of supervisory control to revise such discretion will therefore be denied.

      AtplicatioN for a writ of supervisory control by tbe state, on the relation of James Donovan, attorney general, against the Second judicial district court in and for the county of Silver Bow.
    Writ denied.

      Mr. James Donovan, Attorney General, pro se.

   Mil. CHIEF JHSTICE BBANTLY

delivered the opinion of the court.

On January 22, 1902', after a preliminary examination by John Nelson, a'justice of the peace of Silver Bow county, one W. M. Boss was held to answer to the district court upon a charge of perjury. Boss, failing to give bond for his appearance, was committed to jail. On the following day he petitioned the district court of that county, Hon. J. B. McOlernan, judge, presiding, for a writ of habeas corpus, asking for his release from custody on the ground that the evidence taken before the committing magistrate wholly failed to show reasonable or probable cause to believe that the petitioner was guilty of perjury, or any other offense, and therefore that his detention was illegal. The petition was accompanied by a transcript of the evidence taken before the committing magistrate, and alleged that the transcript contained the whole of such evidence. After a hearing by the district court, an order was made discharging the prisoner on the ground that the evidence failed to show probable cause. The attorney general, deeming the county attorney of Silver Bow county disqualified by reason of his previous connection with the litigation in the cause in the district court of Silver Bow county, in which the perjury by Boss is alleged to have been committed, appeared for the state both at the preliminary examination held by the magistrate and at the hearing of the habeas corpus proceedings in the district court. After the prisoner was discharged, the attorney general presented his written application to the district court asking leave to file an information against Boss charging him with the crime of perjury. Such leave was refused by the court, the judge thereof remarking that it was his opinion that before an information should be filed in the district court another preliminary examination should he had before. a committing magistrate. The attorney general thereupon, on February 13, filed in this court his petition setting forth the history of the proceedings in the district and justice’s courts of Silver Bow county, together with a transcript of the evidence submitted to the district court at the hearing on the application for the writ of habeas corpus, and asked this court to issue its writ of supervisory control to the district court, with direction to it to vacate and set aside the order of discharge, and to permit the information to be filed:

Without considering the question whether the extraordinary power of this court may be invoked in every case where the district court has acted erroneously in making an order of discharge upon habeas corpus, we are satisfied upon the showing before us that the/district court committed no error in granting the order discharging the prisoner. There was no1 evidence before that court tending, to show that the crime charged had actually been committed by Boss. The cause in which he is alleged to1 have testified falsely was the cause of Bordeaux against Bordeaux, tried and disposed of in that court during tho month of August of last year. The transcript of the evidence taken before the committing magistrate and submitted co the district court does not show that his testimony was upon any material issue involved in the case of Bordeaux against Bordeaux. Indeed, there is no showing as to what the issues in that cause were. The transcript of the evidence shows distinctly that the decree in the case of Bordeaux against Bordeaux was offered in evidence in the preliminary examination before the committing magistrate, but it fails to set out the judgment roll, or any part thereof, and it does not appear that the judgment roll was admitted or considered by the committing magistrate. The transcript of the proceedings discloses that one of Boss’ attorneys made the following offer: “Now, I offer the entire judgment roll and decree in tbe district court, —not part of it, but all of it, — in- case No. 7,763, 'being contained in four typewritten pages, and indorsed upon tbe back, tbe decree: Tiled September 28, 1901. Samuel M. Roberts, Clerk, by J. F. Davies, Deputy,’ — being tbe original decree, signed by bis honor Judge Clancy. Is there any objection to that,?” To this the first assistant attorney general replied, “No; let it goi” If tbe foregoing statement of what occurred at tbe bearing stood alone, we might possibly infer from it that the whole of the judgment roll was admitted and considered by tbe magistrate. In view of tbe fact, however, that tbe petition for tbe writ of habeas corpus addressed to tbe district court stated that tbe transcript contained tbe whole of tbe evidence beard by tbe magistrate, and that tbe attorney general appeared in that proceeding, and did not controvert tbe allegation of tbe petition, thus admitting its truthfulness, we must conclude that such evidence was not admitted nor considered by tbe committing magistrate. It therefore could not have been considered by the district court, as tbe matter was there presented. Hence tbe conclusion of tbe district court was correct that tbe committing magistrate bad' no- evidence before him.tending to show that tbe alleged false testimony given by Ross in the case of Bordeaux against Bordeaux was material to any issue therein.

Furthermore, if tbe attorney general, in making bis request to tbe district court for leave to file an information, was doing so in order that be might file it after commitment upon preliminary examination -under Sections 1730-1732 of tbe Penal Code, then his request was unnecessary, as no permission of court is required in such ease; and a petition for a writ of supervisory control would not lie to compel tbe court to give tbe prosecuting attorney leave to do what be could do without such leave. If, however, tbe attorney general considered that tbe action of tbe district court in tbe habeas corpus proceedings bad finally disposed of the case under tbe commitment by tbe magistrate, and desired to ask leave to file tbe information under the provisions of the sections cited, as if no commitment proceedings had been had, then his petition for a writ of supervisory control must be denied, for the reason that it lies within the sound discretion of the court to grant or l’efuse such leave to file the information when no statement is made to> the court of the evidence upon which the state would rely for a conviction.

Nothing herein shall be construed, however, to the effect that this court bolds that the writ of supervisory control is the proper remedy in case such a statement had been made to the court and it had refused leave to file the information. This question, not being before us,.'is reserved.

There is a suggestion in the petition of the attorney general that the district judge was moved by prejudice in mating the order of discharge and in refusing leave to file the information, by reason of an alleged former connection with the case of Bordeaux against Bordeaux 'as counsel for the plaintiff. As the reasons stated dispose of this application, we have not deemed it necessary to consider the matter of prejudice.

The application for the writ is denied, and the proceeding dismissed.

Dismissed.


author: ME. CHIEF JUSTICE BKANTLY

text:
    In re BARKER’S ESTATE.
    (No. 1,745.)
    ON MotioN to Dismiss Appeals.
    (Submitted February 8, 1902.
    Decided February 24, 1902.)

      Executors and Administrators — Settlement of Accounts — Rejection of Claims — Appeals—Appealable Orders. .
    1. Code of Civil Procedure, Sec. 1724, declares tliat an appeal is taken from an order by filing a notice stating the appeal from the same, or some specific gart thereof. In a proceeding to settle an estate, the court made an order settling the administrator’s account, and he appealed, complaining of that part of the order disallowing two certain items, and also a portion thereof directing him to deliver certain stock to a special administratrix. Reading a recital in the first paragraph of the notice of appeal, with each ' of the other three paragraphs, which were numbered in consecutive order, there was a separate notice of appeal for each part complained of. Bélü not an appeal from the order as a whole, but separate and distinct appeals from the different parts thereof.
    2. An order settling an administrator’s account, disallowing two certain items, and directing him to deliver certain stock to a special administratrix, though included in one paper, is in effect several distinct and separate orders, and, though embraced in one notice of appeal, will be so treated for the purposes of the appeal.
    3. under Code of Civil Procedure, Sec. 2793, providing that on the day appointed any person interested in an estate may file exceptions to an administrator’s account and contest it, the allowance of an individual claim of an administrator against the estate is not conclusive, but the parties interested may contest it when his account is presented.
    4. Code of Civil Procedure, Sec. 2608, providing that, where a claim against an estate is rejected, the holder must "bring suit within a certain time or be barred, provides an .exclusive remedy, and an order disallowing the claim is not appealable; Code of Civil Procedure, Sec. 1722, and Session Laws 1899, p. 146, enumerating appealable orders, not providing for such appeal,
    5. under Code of Civil Procedure, See. 1721, providing that “a party aggrieved may appeal,” etc., a person, in his capacity as administrator, cannot appeal from an order disallowing his individual claim against the estate, and on such an appeal his individual rights will not be considered.
    6. An appeal will not lie from an order directing an administrator to turn over certain assets to his successor on resignation or removal.

      7. Obiter, upon the settlement of administrators’ accounts the district court has no> power to adjudicate and finally determine questions of title between the estate and third parties.

      Appeal from District Court, Cascade Oountyj J. B. Leshe, -Judge.

    PROCEEDING to settle tbe estate of Edwin J. Barker, deceased. Order settling tbe account of David L. S. Barker as administrator, disallowing certain objected items, and directing tbe administrator to turn over tbe assets to Marcella Barker, appointed special administratrix, and tbe administrator appeals.
    Dismissed.

      Mr. Fletcher Maddox and Mr. H. G. Mclntire, for Appellant.

      Mr. T. E. Brady and Mr. William G. Downing, for Despondent.
   ME. CHIEF JUSTICE BKANTLY

delivered the opinion of the court.

Motion to dismiss appeals. On July 12, 1901, the appellant, David L. S. Barker, as administrator of the estate of Edwin J. Barker, deceased, filed an account of his administration covering the time from his appointment until that date, and asked that it be allowed. At that time there was pending a petition filed by Marcella S. Barker, the widow of the deceased, charging the administrator with mismanagement and fraud in .connection with his trust, and asking that he be removed from his office. This petition had been pending for some time, and some evidence had been heard in support of the charges. Marcella S. Barker also filed written objections to certain items in the account, and asked that they be disallowed. One of these items was a charge of $500 for attorney’s fees claimed ,by the administrator to have been paid for ser-, vices rendered in connection with the estate. Another was an individual claim of David L. S. Barker, the administrator, as creditor of the deceased, which had theretofore been presented to the judge, and had been indorsed “Allowed.” The amount of this claim is $2,098.80. A healing was had upon the account and the petition for removal, upon evidence then and theretofore taken; but before the motion was finally submitted, the petition for removal was withdrawn, and the administrator tendered to the court his resignation, in writing, asking the court to discharge him upon settlement of the account. On August 1, 1901, the court made an order settling the account, after striking out some of the items objected to, including $250 of the first and the whole of the second, mentioned above. The order also directed the administrator to deliver to Marcella Barker, who was at the same time appointed special adminis-tratrix, all the property and assets in his hands belonging to the estate, and to file his receipts therefor for approval and final discharge. The order specifically mentioned 426,120 shares of the stock of the Big Seven Mining Company, which at the hearing the administrator had endeavored to show did mot belong to' ihe estate, but to Jane Barker, the mother of himself and deceased, and were in his hands as her agent. Ben rfore striking out the item of $>2,098.80, the court revoked the previous allowance of it as a claim against the estate. The ■administrator thereupon took his appeals to this court from the parts of the order disallowing the two items mentioned, and also that portion of it requiring him to deliver the mining •stock to the special administratrix. Marcella Barker has filed her motion to dismiss the appeals from those portions of the order disallowing the second item of $2,098.80, and directing the delivery of the stock, on the ground, among others which it is not necessary to notice, that the orders are not appealable.

1. The appellant contends that he has appealed' from the ■order as a whole, and that the motion cannot be entertained. The notice shows that the appellant, in taking the appeals, proceeded upon the assumption, that they are separate and distinct ; for if the recital in the first paragraph of it be read with •each of the three others, which are numbered in consecutive ■order, there is a separate and distinct notice for each appeal. Evidently counsel for appellant had in mind, when giving the notice, Section 1724 of the Code of Civil Procedure, which ■contemplates the taking of appeals from a judgment or order, or a specific part thereof, and proceeded upon the theory that he could take the appeals as he did. The appeals may therer fore, upon this theory, be treated as separate and distinct, and the motion may be entertained as to the two at which it is ■directed. Furthermore, though the action taken by the district court at that time is all included in the same paper, several distinct and separate orders were made, and each of these, for the purposes of appeal, must be so treated, though all are included in the same notice.

The portion of the order disallowing the David L. S. Barker individual claim of $2,098.80 is, in legal effect a rejection of the claim against the estate in the first instance. It was within the power of the court to reconsider its action in allowing the claim upon presentation by Barker, and when this was done it stood in exactly the same condition as if it had been rejected in the first instance. The allowance had the effect only of placing the claim among the acknowledged debts of the estate, to be paid in due course of administration. It was not conclusive upon the heirs or others interested in the estate, but the right was still reserved to them, upon .presentation of the account, to contest and have it rejected. (Code of Civil Procedure, Sec. 2793; In re Mouillerat's Estate, 14 Mont. 245, 36 Pac. 185; In re Sullenbergers Estate, 72 Cal. 549, 14 Pac. 513; In re Swain's Estate, 67 Cal. 637, 8 Pac. 497; Weihe v. Statham, 67 Cal. 84, 7 Pac. 143.) The portion of the order which operated as a rejection of the claim was a separate and distinct act from the order allowing the account. The same may be said of that portion of the order directing the delivery of the stock to the special administratrix. It had nothing to do. with the matters involved in the account.

2. The order rejecting the claim of $2,098.80 is not appeal-able, for the reason that there is no. provision in the statute permitting an appeal. (Code of Civil Procedure, Sec. 1722; Session Laws 1899, p. 146; Estate of James Tuohy, 23 Mont. 305, 58 Pac. 722.) In such case the claim must be enforced against the estate under the provisions of Section 2608 of the Code of Civil Procedure. The remedy there provided is exclusive.

There is another consideration which is also conclusive upon the appellant. An appeal is allowed in any case to those persons only who are aggrieved by the judgment or order complained of. (Code of Civil Procedure, Sec. 1721.) The rejection of the claim of David L. S. Barker in his capacity as a creditor of the deceased in no way affected the rights of David L. S. Barker in his capacity as administrator. In each capacity he is a different person, and has distinct and separate rights. The appeal having been taken by him in his official capacity, his individual rights cannot be considered, because they are not before us, even though it be conceded that he had the right of appeal in bis individual capacity. (In re Phillips' Estate, 18 Mont. 314, 45 Pac. 222.)

3. Nor does the statute permit an appeal from an order directing an administrator to turn over to his successor, upon resignation or removal, the property belonging' to the estate, or which has come into his hands as such. If the particular property belonged to the estate, or came into his bands because of his official position as administrator, it was entirely proper for the order to be made, and, as administrator, he was bound to obey it. If it did not belong to' the estate, and was not held as such, the court had no power to. compel him to part with it. Upon the settlement of accounts the court has. no. power to adjudicate and finally determine questions of title between the estate and third persons. This can be done by action only, in which the parties may be accorded the right of trial in the ordinary way. If, therefore, David L. S. Barker held the stock by any other right than as administrator, the order cannot affect such right. It is simply void. If he obtained its custody by virtue of his appointment as administrator, and not in his individual capacity, the order was proper, and should be obeyed. In any event, no appeal lies from the order, .and this court has no. jurisdiction to entertain it.

The two appeals at. which the motion is directed are dismissed.

Dismissed.