author: MR. JUSTICE HOLLOWAY

text:
    COOMBE et al., Appellants, v. KNOX et al., Respondents.
    (No. 1,572.)
    (Submitted May 13, 1903.
    Decided May 18, 1903.)

      Attorney s Lien — Foreclosure—Pleading
    In an action against McDonald, Knox, Maloney and Cobban to establish and enforce an attorney’s lien the complaint alleged: that plaintiffs were employed by McDonald, as her -attorneys, to prosecute an action on 'her -behalf against Knox in the district court; that they performed the services required of them, and obtained a judgment in tbeir client’s favor for $331.65; that such action had been tried in a justice’s court, and from a judgment rendered therein in favor of their client an appeal had been taken to the district court by the losing party; that the ordinary undertaking had been given with the defendants Maloney and Cobban as sureties thereon; that for the services rendered by plaintiffs, $300 was a reasonable attorney’s fee; that no part thereof had been paid; and that no part of the judgment obtained by McDonald in the district court had ever been paid. To this complaint separate demurrers were interposed by the defendants, the grounds of which were: (1) Misjoinder of parties; (2) mis-joinder of causes of action; and (3) failure to state facts sufficient to constitute a cause of action. Held, that the demurrers were not well taken.

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

    ActioN by R Coombe and O. ,M. Hall against Mary McDonald, Jessie C. Knox, J. H. Maloney and R. M. Cobban. Tbe defendant McDonald made default. From a judgment for costs entered in favor of defendants Knox, Maloney and Cob-ban, plaintiffs appeal.
    Reversed.

      Mr. O. M. Hall, for Appellants.

      Mr. C. D. Tillinghast, and Mr. John N. Kirie, for Respondents.
   MR. JUSTICE HOLLOWAY

delivered tbe opinion of tbe court.

Tbis action was brought by tbe appellants, wbo were plaintiffs below, to establish and enforce an attorney’s Ten. Tbe complaint alleges that tbe plaintiffs were employed by one Mary McDonald as her attorneys to prosecute a cause of action on her behalf against Jessie C. Knox, in tbe district court of Silver Bow county; that they performed tbe services required of them and obtained a judgment in tbeir client’s favor for $331.65; that such action bad been commenced and tried in a justice of tbe peace court, and from a judgment rendered therer-in in favor of McDonald an appeal bad been taken to tbe district court by tbe losing party; and that tbe ordinary undertaking on appeal bad been given,’with tbe defendants Maloney and Cobban as sureties thereon. A copy of sucb undertaking is attached to and made a part of tbe complaint, to only one paragraph of wbicb it is necessary to make reference: “We do further, in consideration thereof and tbe premises, jointly and severally undertake and promise * * * that she (appellant) will pay any judgment and costs that may be recovered against her in said action in tbe district court, not exceeding the sum of $300, to wbicb amount we acknowledge ourselves jointly and severally bound.

“J. H. Maloney,

“E. M. Cobban.”

Tbe complaint then alleges that for tbe services rendered by these plaintiffs, $300 is a reasonable attorney’s fee; that no part of it has been paid; and that no part of tbe judgment obtained by McDonald against Knox in tbe district court has ever been paid. Tbe defendant McDonald made default. To tbe complaint a separate ■ demurrer was interposed by the defendant Knox, and a like separate demurrer by tbe defendants Maloney and Cobban. Tbe grounds of tbe demurrers are: (1) Misjoin-der of parties defendant; (2) misjoinder of causes of action; and (3) that tbe complaint does not state facts sufficient to constitute a cause of action. These demurrers were by tbe court sustained and judgment for costs entered in favor of tbe defendants Knox, Maloney and Cobban, from which judgment this appeal is prosecuted.

Section 430 of tbe Code of Civil Procedure provides: “Tbe compensation of an attorney and counselor for his services is governed by agreement, express or implied, which is not restrained by law. Krom tbe commencement of an action or tbe service of an answer containing a counterclaim, tbe attorney who appears for a party has a lien upon bis client’s cause of action or counterclaim, wbicb attaches to a verdict, report, decision or judgment in his client’s favor and the proceeds thereof in whose ever bands they may come; and cannot be affected by any settlement between tbe parties before or after judgment” Tbe complaint, then, in so far at least as any criticism is made upon it .by respondents, does allege facts sufficient to show that the plaintiffs herein had a lien upon their client’s cause of action in McDonald v. Knox, which lien attached to-tin judgment recovered by McDonald as soon as it was rendered.

The complaint also alleges that no part of the judgment has ever been paid and that its payment is secured by the appeal bond upon which Maloney and Gobban are sureties. It is not essential to the existence of the lien that the amount of the attorney fee should be definitely fixed. The amount due must be alleged either by stating a fixed sumí or by averring the reasonable value of the services rendered, as is done in this instance. (4 Cyc. Law & Pro., 1022.) This is. an equitable action, brought to foreclose a lien, and ever person interested in the subject-matter of the controversy is a proper party to the 'proceedings. Mrs. Knox, the- judgment debtor, was properly made a party and is in no position to complain, for the payment of money into court by her, sufficient to satisfy this lien would operate to discharge, pro tamio, her obligation to McDonald. The attorney seeking to enforce his lien may bring an independent action against his client or the adverse party, or both. (4 Cyc. law & Pro., 1021, and cases cited.)

Are Maloney and Cobban proper parties defendant? The lien granted by the statute operates as an equitable assignment of so- much of-the judgment as will satisfy the lien, and, for the purpose of securing payment, subrogates the attorney to the right of his client to that extent. (4 Cyc. Law & Pro-., 1005.) Any security, therefore, which the client has for the payment of his judgment, may be availed of for the benefit of the attorney. The appeal bond given by Knox, upon which Maloney and Cobban are sureties^ was for the benefit of McDonald to secure the payment of her judgment; and to- the extent which that judgment is by operation of law equitably assigned to her attorneys, is the security for its payment liable io enforcement by such attorneys. In Clark v. Sullivan, 3 N. D. 280, 55 N. W. 733, the same question was before the supreme court of North Dakota, and! it was there decided that the attorney’s lien extends not only to the judgment recovered by his client, but attaches to any bond or undertaking given to secure the payment of that judgment. T'o the same effect are the decisions in Leighton v. Serveson, 8 S. D. 350, 66 N. W. 938; Stoddard v. Lord, 36 Oregon, 412, 59 Pac. 710; Davidson v. Board of Com’rs, 26 Colo. 549, 59 Pac. 46; Newbert v. Cunningham, 50 Me. 231, 79 Am. Dec. 612. There was; then, no misjoinder of parities defendant. Neither was there any misjoinder of , causes of action. In fact, there is but one cause of action stated in the complaint: a cause of action upon the foreclosure of an attorney’s lien, in every sense analogous to the foreclosure of a mechanic’s lien or mortgage. In Elliott v. Leopard Mng. Co., 52 Cal. 355, the supreme court of California had before it a like cause of action, where the sanie relief was sought and where a demurrer specifying the same grounds as those in the case at bar was interposed, and held that there was no misjoinder of causes of action or of parties defendant.

Por the reasons stated the judgment is reversed and the cause remanded to the lower court with directions to overrule the demurrer.

Reversed and remanded.


source: Caselaw Access Project

author: MB. JUSTICE’ HOLLOWAY, Mr. Chief Justice Braetly: Mr. Justice MilburN:

license: Public Domain

text:
    In re WESTON. RYAN, Contestant, v. WESTON, Contestee.
    (No. 1,927.)
    (Submitted March 19, 1903.
    Decided May 18, 1903.

      Constitution — Súbeme Cowi> ■ — • Jurisdiction — Original — Appellate ■ — ■ Supervisory Control — District Judges ■ — ■ Disqualification — Bias or Prejudice — Order Substituting One District Judge for Another.

    1. The Act of tie Eighth legislative assembly, entitled “An Act to provide for the designation and appointment of a district judge to temporarily hold court in another district than his own, and to perform the official duties of the district judge of such district, where such judge is biased or prejudiced or for any cause disqualified from performing the same” (Laws of 1903, Chapter 42), held to be unconstitutional.
    2. Constitution, Article III, Section 29, providing that “the provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise,” is conclusive upon the legislature, and prevents the enactment of any law which has for its purpose the extension or limitation of the powers conferred by the constitution.
    3. The power to issue, hear, and determine the six original writs enumerated tConstitution, Art. VIII, Sec. 3), marks the limit of the original jurisdiction of the supreme court.
    4. under Constitution, Article VIII, the ordinary appellate power of the supreme court is limited to a review of the decision of the lower court, and a judgment affirming, modifying or reversing such decision, — -with the strictly ancillary power to issue, hear and determine such original and remedial writs as may be necessary or proper to the complete exercise of this appellate jurisdiction.
    5. under Constitution, Article VIII, Section 2, the power of supervisory control is lodged in the supreme court sitting as an organized judicial body, and such power operates only upon inferior courts; it cannot extend to or affect any other body or any individual or individuals.
    6. In the absence of a statute declaring bias or prejudice on the part of a judge to be a disqualification, bias or prejudice does not constitute a disqualification.
    7. under Constitution, Article IV, Section 1, the legislature cannot impose upon the supreme court, or its justices, the performance of an act not judicial in its character but purely ministerial or executive.
    8. Quaere: Has the supreme court, under its power of supervisory control, power to control a lower court, by prohibiting the judge thereof from proceeding with the trial of a cause, if it were made manifest that he was for any reason’incapable of giving either of the parties a fair trial?
    Election contest by Patrick V. Pyanj against Jolin Weston, in which, contestant instituted an original proceeding in the supreme court under Chapter 42, Laws of 1903, for the appointment of a district judge to temporarily bold court in the district in which the contest was commenced.
    Proceedings dismissed.
    STATEMENT OE THE CASE.
    This is an original ¡proceeding instituted in this court by Patrick V. Ryan for the purpose of securing an order designating a judge of some district other' than the Second judicial district, to try and determine the contested election case of Byan v. Weston. The proceeding is taken under the provisions of an Act of the Eighth legislative assembly'of Montana, designated as “Substitute for Senate Pill No. 71,” entitled “An Act to provide for the designation and appointment of a district judge to temporarily hold court in another district than his own, and to perform the official duties of the district judge of such district where such judge is biased or prejudiced or for any cause disqualified from performing the same,” which is as follows :
    “Be it enacted by the Legislative Assembly of the state of Montana:
    “Section 1. "When a party to a civil action or proceeding pending in any district court of the state has reason or cause to believe that such party cannot obtain a fair and impartial trial or determination of such action or proceeding, or of any motion, or application therein made, by reason of the bias or prejudice arising from any cause, of the district judge presiding in the court, or any department thereof where such action, proceeding, motion or application is pending, or where such judge so presiding is, from, any other cause, disqualified from acting therein, such party or his .attorney may first request the judge of the district court wherein, such action, proceeding, motion or application is pending, to sign a petition addressed to, and asking, the supreme court, without stating grounds therefor, to designate and appoint a judge of some other judicial district of this state to hear, try and determine such action, proceeding, motion or application, and if such petition be signed by the district judge to whom the same is presented the supreme court shall on presentation thereof make an .order designating and appointing the judge of some judicial district of this state to hear, try and determine such action, proceeding, motion or application as in this Act provided; but if the district judge to whom such petition is presented refuses, or for the period of three days fails, to sign said petition, the party on whose behalf the same is presented may, by a petition verified by the affidavit of petitioner or his. agent or attorney setting forth such bias or prejudice or other grounds, of disqualification and the facts upon which the same is based', and the failure or refusal of the judge of the district court or department thereof wherein such, action, proceeding, motion or application is pending, to sign a petition for the appointment of another judge as hereinabove provided, petition the supreme court, or the justices thereof, to designate and appoint a district judge of some other judicial district of this state, to act in such cause; and the supreme court, or any two. justices thereof, may upon a summary hearing of such petition in court or chambers, with any further showing which may be by the court or justices deemed proper, make an order designating and appointing the judge of any judicial district of the state other than that in, which such action, proceeding motion or application is pending’, to appear in the district in which such action, proceeding, motion or application is pending, at some proper and convenient time and preside at the trial of such action, or other matter mentioned in the order, and' to determine the same, and to do any and all judicial acts necessary, ,proper and lawful in and about the adjudication and determination thereof, and in and about administering proper relief therein with the same force and effect as if done or ordered by the judge of the district wherein such matter is pending.
    “Sec. 2. Upon such order being made and filed in the action or proceeding therein mentioned the judge or judges of the district court wberein sueb action or proceeding is pending shall not proceed further in such action or proceeding or try or decide the same, nor do any other judicial'act therein except upon consent of the parties theretó or their attorneys in writing.'
    “Sec. 3. The district judge designated and appointed in the order of the supreme court in the cases in this Act provided shall have full power and authority to¡ preside at the trial of and to try and decide such action, proceeding, motion or application mentioned in such order and to do all acts and things lawful and proper to be done, in court or at chambers, in and about the trial, adjudication, decision and granting and administering all proper and lawful remedies and relief and enforcing the same in said action, proceeding, motion or application mentioned in such order of the supreme court as could be done by a judge of the judicial district wherein such action, proceeding, motion or application is pending; and upon receiving a' copy of such order of the supreme court it shall be the duty of the district judge therein designated and appointed, to appear at the county seat of the county in which such action, proceeding, motion or application is pending, at some proper and convenient time and try the same, but if from any cause he should fail so to do, the supreme court may by its order designate another district judge to do the same, who shall be vested with like powers in such action, proceeding, motion or application: provided, that neither party shall petition the supreme court more than once in the same action or proceeding to designate and appoint another judge to act therein under the provisions of this Act, except in eases where the district judge previously appointed to act therein has failed from' any cause so to do-.
    “Sec. 4. A district judge designated and appointed to hold court in another district pursuant to the provisions of this Act shall be paid his actual expenses, to be allowed by the state board of examiners, and paid in the same manner as his. regular salary.
    “Sec. 5. This Act shall be in full force and effect from and after its passage and approval.” (Chapter 42, Laws of 1903.)

      Upon tbe filing of tbe petition this court, on its own motion, directed an order to be issued to tbe district judge in whose' department tbe case of By an v. Weston is pending, and to tbe con-testes, to sbow cause, if any tbey bad, why the relief prayed for should not be granted, and directed a bearing upon tbe return thereof. At tbe bearing counsel for the district judge and for tbe contestes filed a motion to> dismiss tbe proceedings, upon tbe ground that substitute for Senate Bill No. 71 is unconstitutional, and that this court has no- jurisdiction to entertain tbe petition or to grant tbe relief prayed for. Upon this motion tbe questions involved were argued and submitted, for determination.

      Mr. W. E. Carroll, and Mr. E. N. Harwood> for Contestant.

      Mr. Lewis P. Forestell, Messrs. Toole <& Bach> ar.d Messrs. Carpenter & Carpenter, for Contestee.
   MB. JUSTICE’ HOLLOWAY,

after stating tbe case, de< livered tbe opinion of tbe court.

“Tbe source of all power vested in tbe supreme court is tbe constitution of tbe state, and in it must be found the measure of jurisdiction.” Tbe foregoing succinct statement taken from the brief of tbe petitioner in tbe proceedings No. 1,928 (In re Application of the Boston & Montana, Consol. Copper & Silver Min. Co., 28 Mont. 221, 72 Pac. 1103), correctly lays tbe foundation for determination of tbe question involved in this controversy. Tbe general rule, repeatedly affirmed and now well understood, that tbe constitution of tbe United States represents a grant of ppwer by tbe several states and tbe inhabitants thereof to tbe general government, while tbe constitutions of tbe sev? eral states operate upon the lawmaking branches' of those governments as limitations of authority, must be understood and considered in this connection with tbe qualification which our own state constitution has attached, that “the provisions of this constitution are mandatory and prohibitory, unless by express words they are declared to be otherwise.” (Section 29, Article III, Constitution of Montana.) This declaration can have but one meaning — 'that, with reference to these subjects upon which the constitution assumes to speak, its declarations shall be conclusive upon the legislature, and shall prevent the enactment of any law which has for its purpose the extension or limitation of the powers which they confer. An examination of our constitution discloses an attempt on the part of its framers to de*-fine the jurisdiction of this court, and such definition must be accepted as a- final declaration upon that subject: (1) The supreme court shall have appellate jurisdiction only, except as otherwise provided by this constitution (Section 2, Article YIII), and shall have power to issue, hear, and determine such original and remedial writs as may be necessary or proper to the complete exercise of its appellate jurisdiction (Section 3, Article YIII). (2) It shall have general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law. (Section 2, Article YIII.) (3) It shall have discretionary power to issue, hear and determine writs of habeas corpus, mandamus, quo1 warranto, certiorari, prohibition, and injunction. (Section 3, Article YIII.)

For the purpose of this discussion, these are 'transposed, and) will be considered in this order: (1) original jurisdiction; (2) appellate jurisdiction; and (3) supervisory jurisdiction.

1. ORIGINAL JuEISDIOTION.

The power to issue, hear, and determine the six original writs enumerated above marks the limit of the original jurisdiction of this court. The scope and purpose of these writs are too well defined and understood to require particular attention. They are essentially prerogative writs'. They were so denominated at common law, and issued only on behalf of the state; and, if used for private remedy, it was only upon leave granted, and then in the name of the state. They were never presumed to be ordinary writs applicable to private controversies, and issuable as a matter of course. (Attorney General v. Railroad Companies, 35 Wis. 425; State ex rel. Clarke v. Moran, 24 Mont. 433, 63 Pac. 390; State ex rel. Anaconda Copper Mining Co. et al. v. Dist. Court, 25 Mont. 521, 65 Pac. 1020.) It can hardly be seriously contended that the exercise of the appointing p,ower sought to be conferred by the Act under consideration would fall within the purview) of any one1 of these writs, or within the original jurisdiction of this court. Indeed, a direction of this court designating a nonresident judge to sit in lieu of the one complained of would not be a writ at all, but simply an order which might be sighed by the justices themselves, and which would not even require the seal of the court to authenticate it. It may be true that, upon the failure of the re ident judge to sign a petition for his own displacement, the original jurisdiction of this court is sought to be invoked, or, in other words, in that instance the proceedings instituted in the supreme court.partake of the nature of original proceedings ; but, if so, the power of this court to act would have to be lodged somewhere, and be capable of definite determination. We must decline -to employ any one of the original writs mentioned above for the purposes of this Act. The fact that the federal courts and certain state courts of last resort do make use of the writ of mandamus or certiorari for the purpose of general supervision of inferior courts will not justify us in deflecting the pjurpose of those writs from well-defined channels, especially in view of the express grant of supervisory control to this court in plain and unmistakable terms., which, in the absence of legislative enactment defining the mode- of proceeding, may be exercised by means of such writ or process as for that purpose may be invented.

2. Appellate JurisuxctioN.

Upon appeal to this court in the ordinary course of litigation, the full measure of relief which may be granted is a review of the decision of the lower court and a judgment of this court affirming, modifying, or reversing the decision. Further than this we cannot go. (State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395.) The Act in question, however, does not purport to invoke the appellate' power of the supreme court. Under its provisions every litigant is given two opportunities to secure a nonresident j udga to try his cause: First, upon the petition of the resident judge himself; or, second, upon the petition of the litigant, addressed directly to this court, in case the) resident judge refuses to sign 'the petition. In the first instance the supreme court has nothing to do —no discretion to exercise, no* deliberation-to indulge, no judgment to form — huti must make the appointment. In so doing we are not reviewing the action of the district judge, but merely acting on his suggestion or at his dictation. In the event the resident judge refuses or neglects to sigp, the petition, the only remedy sought by resort to this court is to have the appointment made without reference to his wishes.' The Act does not assume to require the resident judge to sign the petition. He may do so or not, but upon his refusal no' error can be predicated; and, if no error is charged, no review1 can be had. Then, can, be no affirmance, modification, or reversal of the order of the resident judge, when none has been made. If the Act required him to do something, his refusal might be overcome by appropriate action,' but a matter which is left purely to his discretion may not-bq controlled by1 the ordinary appellate power of this court. As an incident of and ancillary to the ordinary appellate jurisdiction of the supreme court, the power has been conferred to issue, hear, and determine such original and remedial writs as may be necessary or proippr to the complete exercise of this' appellate jurisdiction. But this power is only auxiliary. An action must be in this court on appeal, or an appeal sought to> be perfected, before this ancillary or subsidiary jurisdiction can be moved into activity for any purpose whatever, and then only in aid of such appellate jurisdiction. The very grant of this power implies, first, that an appeal has been or is sought to be perfected in this court; second, that the ordinary processes of a,p,peal are inadequate; and, third, that; some wait known to the common law, or such as this court may invent, will complete or fully supplement the appellate power.

3. Supervisory JurisdictioN.

(a) “The supremas court shall have a general supervisory control. * * *” (Constitution, Sec. 2, Art. VIII.) By express terms the constitution has lodged this jurisdiction in the supreme court, sitting as an organized judicial body; and, those terms being both mandatory and prohibitory, that power of general supervision cannot be conferred: upon any other body or upon any individual or individuals. It cannot be added to, subtracted from, or taken away altogether. Tested by this rule; the invalidity of the Act is too apparent for comment. It assumes to vest ih two' of the justices of this court, sitting in chambers, full power and authority to carry its provisions into effect, and to do any1 and all things which this court could do in the premises. The distinction between a court and the judge or justices thereof is so well defined and so distinctly marked in the jurisprudence of this country that it calls for no further comment here. If the objection now under consideration was the only one urged against the measure, we might eliminate the provisions conferring the appointing power upon the justices at chambers, and permit the remainder of the Act to stand.

(b) “The supreme court shall have general supervisory control over all inferior courts. * * *” (Constitution, Sec. ‘2, Art. VIII.) The supervisory power of this court operates only upon inferior courts, not upon persons; and, under the rule of interpretation provided by the constitution Itself, it cannot extend to or affect any other body or any individual or individuals. It is manifest from the terms employed that the Act does not purport to affect the district court — does not intend to disarrange the judicial machinery or change the place of trial, which can only be effected by a change of venue — but seeks merely to change the personnel of the presiding officer. The Act is aimed at tbe individual, not at tbe constituent! part of tbe lower court; for a change of judge would not change tbe court. Nor all judicial purposes it would remain tbe sáme after tbe change as before. (Hedrick v. Hedrick, 28 Ind. 291.)

(c) Tbe supervisory power granted to this court is a co-ordinate power, and, as with' its original and appellate jurisdiction, so with this. Tbe powter thus conferred will only be exercised after consideration, deliberation, and a judicial determination of tbe merits of tbe controversy with reference to which it is sought to be invoked. It cannot be appealed toi and a remedy bad under it as a matter of course. Commenting upon tbe sweeps of this power, this court, in State ex rel. Whiteside v. District Court, 24 Mont. 562, 63 Pac. 400, said: “As the' appellate jurisdiction was granted for tbe purpose of revision and correction, and tbe original jurisdiction under these writs was granted to enable us fi> render such relief as is appropriate under them, so tbe supervisory power was granted to meet emergencies to which those other powers and instrumentalities are not commensurate. It is independent of both, and was designed to infringe upon tbe functions of neither. It has its own appropriate functions, and, without undertaking to' define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where those courts are proceeding within their jurisdiction, but by a mistake of law, or wilful disregard of it, are doing a gross injustice, and there is no appeal^ or the remedy by appeal is inadequate. Under such circumstances, the case being exigent, no relief could be granted under the other powers of this court, and a denial of a speedy remedy would be tantamount to a denial of justice. Cases may arise also where seme relief could be granted under some one of the other original units named, but such relief would not be complete and adequate because of some error which could not be corrected by means of the limited functions of the particular wait, while the supervisory power is unlimited in the means at our disposal for its appropriate exercise.”

The terms “supervisory control” imply something to supervise as well as something to control, and the exercise of judicial discretion or judgment on the part of this court, while the Act under consideration does not provide for the one_ nor permit the other. If the resident judge signs the petition to' this court without stating any ground whatever, this court must appoint another judge to take his place, whether he -be disqualified or not. No discretion is left to this court, and no judicial action, is called for. The appointment must be made. If the resident judge refuses or neglects to. sign the petition, the litigant himself may apply to this court upon a petition setting forth the allegations of bias or prejudice on the part of the resident judges and upon a summary hearing this court may appoint another judge to take his place; and that, too, without notice to the accused judge or opposing, party litigant, and without any hearing having been granted to either of them. The effect of such an appointment, though made summarily, is to' declare the resident judge guilty of entertaining bias or prejudice to such an extent as to render the complaining litigant unable to secure a fair trial, and to' make such bias or prejudice ope-rate as a disqualification- of the resident judge. This we may not do, for this is not a legislative body. Nowhere in this Act, by express terms or by any fair implication, can it be said that bias or prejudice on the part of the resident'judge is declared to1 be a disqualification, and we know of noi other statute to that effect; and, in the absence of such statutory declaration, bias or prejudice does, not constitute a disqualification in this iurisdiction. This question was settled by this court in the early history of this state. (In re Davis' Estate, 11 Mont. 1, 27 Pac. 342.) In our judgment, the constitutional authority to entertain the petition or grant the relief prayed for must be apparent, and in the absence of such, authority we cannot act.

In addition to there being no constitutional authority under which this court can proceed, the Act is in violation and directly contravenes the provisions of Section 12 of Article VIII of the Constitution, which are that “any judge of the district court may bold court for any other district judge. * * *” This section of the constitution makes provision for the substitution of one judge for another, and must be held to be exclusive, at least until the authority vested in it has been exhausted. By analysis, we reach the result:

(1) The framers of our organic law. saw fit to repose the power of substituting one district judge for another in the district judge himself, and upon his invitation any other district judge in the state may be called to' take his place; and, if the invitation be accepted and acted upon, no authority can be found to deny such invited judge authority to proceed, and that, too, though he may reside in the same district as the; one extending the invitation.

(2) It cannot be seriously contended that the purpose of tire Act was to provide a mode of substitution in addition to the one prescribed by the constitution. This, clearly, cannot be cione; but, if it could, such a result would lead to endless confusion. If, under the provisions of this legislation, the supreme court should assume to act, and should by order designate the judge of the Fifth judicial district of this state to proceed “at some proper and convenient time” to1 Silver Bow county and try the contested election case of Ryan v. Weston, and, immediately before this court made such order, the district judge in whose department that cause is now pending should invite one of the other judges of the Second judicial district to try the same, and his invitation should be accepted and acted upon, and the case tried and determined by such invited judge under express authority conferred by1 the constitution, which clothes such invited judge with all the power and authority of the: one whom he supplants, the anomalous, not to say ridiculous, position of this court and the judge designated by it under' this legislative enactment would be too palpable for discussion. The resulting confusion would be intolerable.

(3) Section 1 of the Act provides that, upon the failure or refusal of the'district judge to sign the petition asking for his-own displacement, the supreme court or any two justices at chambers shall designate and apppint a judge “or any judicial district of this state other than that in which such action, proceeding, motion or application is pending, to appear * * * and preside at the trial of such action or other matter mentioned in the order and to determine the same.” This provision emphasizes the fact that the judge appointed by this court must come from some district other than the one, in which the cause is pending, and in that respect contravenes the provisions of Section 12, above, which provides that any district judge may hold court for any other district judge, and shall do so- when required by law; and that, too, whether he come from another or from the same district. When the constitution uses the terms “any district judge may hold court for any other district judge,” it means what it says, and cannot be, tortured into excluding one of the judges of the First judicial district or two of the judges of the Second.

Finally, the power sought to be conferred upon this court or two of its justices is not judicial in its character, but purely ministerial or executive, and invades another department of our state government, which may not be done. Section 1, Article IV, of the Constitution, provides: “The powers of the government of this state are divided into' three distinct departments: The legislative, executive and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these departments shall exercise any powers properly belonging to either of tire others, except- as in this constitution expressly directed or permitted.” The orderly disposition of the business of the state requires the faithful observance of this constitutional mandate-. “This court is placed by the constitution at the head of the judicial system of the state; from its judgments there is no appeal to any other state tribunal, and its determinations are binding upon the rest of the state judiciary. The legislature cannot interfere with its existence or supremacy; nor can that body alter the m ture of its jurisdiction and duties.” (People v. Richmond, 16 Colo. 274, 26 Pac. 929.)

However reluctant this court may be to declare unconstitutional oany measure which has received the sanction of the legislative department of our state government, we have ro> right to hesitate to do so when -the invalidity of the Act is apparent, when direct attack is made upon it, and we are called upon to determine the question.

Numerous other objections are urged against the validity or policy of the measure, but, under the views herein expressed, we deem it unnecessary tot consider them.

The motion to dismiss the proceedings is sustained, and the proceedings are dismissed.

Dismissed.

Mr. Chief Justice Braetly:

I concur in the result reached by Mr. Justice Holloway, but, speaking for myself, do not wish to authorize the inference from anything said in the opinion that this court might not, under its power of supervisory control, and independently of legislative action, upon proper application, prohibit a district judge from proceeding with the trial of a cause if it were made manifest that he was for any reason incapable of giving, either of the parties a fair trial. Whether or not this court has such power is a question which is not presented upon this application. I do' not wish to be understood as expressing any opinion as to whether this power does or does not exist, but do> not think consideration of the question should be regarded as foreclosed.

Mr. Justice MilburN:

I concur in the opinion of Mr. Justice Holloway, and in the conclusion reached by him; but I wish to add that there should not be any inference drawn from, the language of the opinion that, independently of the Act now declared invalid, this court has not any power to control a lower court, the judge of which is sitting in a cause, in which he is biased and prejudiced. This question is still an open one, and as to it I do not express any opinion.


author: MR. JBSTICE HOLLOWAY

text:
    IN THE MATTER OF THE APPLICATION OF THE BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO.
    (No. 1,928.)
    (Submitted March 27, 1903.
    Decided May 18, 1903.)
    For Syllabus, see In re Weston, anie, page 207.
    O'Riginal pp.’oceediing in the supreme court, under Chapter 42, Laws of 1903.
    Proceedings dismissed.

      Mr. A. J. Shores, Mr. C. F. Kelley, and Messrs. Forbis & Evans, for Applicant. ■

      Messrs. Mc-Hatton & Goiter, and Mr. Gharles Ii. Leonard, for Respondents.
   MR. JBSTICE HOLLOWAY

delivered the opinion of the court.

This is an original application to this court for an order designating a judge of soma district other than the Second judicial district, to try and determine a certain- cause pending therein, entitled John McGiwniss, Plaintiff v. Boston & Montana Consolidated Copper & Silver Mining Company, A. S. Bigelow, W. J. Ladd, Ed. C. Perkins, Edwin S. Grew, Joseph S. Bige-low, Leonard Lewisohn, Frank Klepetko, Amalgamated Copper Company, William Scallon and C. S. Batterman. Defendants. The proceeding is tahen under the provisions of an- A.ct of the Eighth legislative assembly, designated as “Substitute for Senate Bill No. 71” [Chapter 42, Laws of 1903]. Upon the filing of the petition this court, on its own motion, ordered the plaintiff in the court below and the district judge in whose department the above cause is pending, to appear and show cause, if any they had, why the prayer of the petitioners should not be granted. Hpon retuim of that order, counsel for the plaintiff and for the district judge appeared and filed a motion to> dismiss tbe proceedings upon tbe ground that tbe Act entitled “Substitute for Senate Bill No. 71” is unconstitutional, and that this court bas no jurisdiction to entertain tbe petition or to' grant tbe relief prayed for.

Tbe facts in this case and tbe principle involved aro identical with those in No. 1,927, entitled Ryan v. Weston, this day decided by this court, ante, 207, 72 Pac. 512, and upon tbe authority of that case tbe motion to dismiss is sustained and the proceeding dismissed.

Dismissed.


author: ME. COMMISSIONER CLAYBEBD

text:
    BAKER, Respondent, v. BUTTE CITY WATER CO., Appellant.
    (No. 1,568.)
    (Submitted May 11,1903.
    Decided May 20, 1903.)

      Appeal — Review — Exceptions — Sufficiency —• General Verdict — ■ Special Bindings — Inconsistency — Miming Glaim ■ — Location Notice — Evidence.
    1. The supreme court cannot review tbe action of tbe court below in disregarding one of tbe special findings' of tbe jury, where the party complaining does not specifically except thereto, but relies entirely upon an exception to tbe entry of judgment in favor of tbe other party.
    2. A motion for judgment on the special . findings is necessary; otherwise judgment will be entered on the general verdict as of course. In tbe absence of such motion in tbe trial court, no question concerning tbe right to such judgment can be raised on appeal.
    3. Since tbe legislature bas tbe right to provide rules for tbe marking of tbe boundaries of mining ■ claims; for a record of such location; and wbaf tbe recorded paper must contain, — the court may rightly exclude a location notice which fails to conform to tbe statute.

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

      AotioN by Ben Baker against the Butte City Water Company. Judgment for plaintiff. Defendant appeals.
    Affirmed.

      Messrs. Forbis & Fvans, and Mr. T. Bailey1. Lee, for Appellant.

      Mr. J. E. Mealy, for Respondent.
   ME. COMMISSIONER CLAYBEBD

prepared the opinion for the court.

This was an action in ejectment. Plaintiff alleged ownership of the premises in question, an illegal ouster therefrom by defendant, and an- unlawful withholding of the possession thus acquired. The defendant denied plaintiff’s ownership and that the ouster was illegal. It then affirmatively alleged “that at all times mentioned in plaintiff’s complaint it was,- and now is, the owner of, in possession of, and entitled to the possession of, the premises described in plaintiff’s complaint.” The question of the possession of the premises, was not, therefore, an issue in the case.

Plaintiff testified without objection that defendant was in possession of the property, and the court instructed the jury as follows: “You are instructed in this case that tbe defendant is in possession of the premises in dispute, and it devolves upon the plaintiff to establish by a preponderance of the testimony his right to the possession of said premises by showing a valid location; and, if he fails in this respect, your verdict must be for the defendant.”

At the close of the case the defendant requested four special interrogatories to be submitted for findings by the jury, of which that marked “No1. 1” was as follows: “Was the defendant in this action, the Butte Gity Water Company, at the date of the commencement of this action, in possession of the ground in controversy ?” The court complied with defendant’s request in this regard. The record does, not disclose whether plaintiff objected to the submission of this questipn, but the statement and bill of exceptions were prepared and presented by defendant, and settled in bis bebalf, and could not ,p¡roperly contain plaintiff’s objections or exceptions. (Westheimer v. Coodkind, 24 Mont. 90, 60 Pac. 813.) So that no presumption can be indulged as to whether plaintiff objected or consented to its submission. It is very clear* that the court ought not to have submitted this question to' the jury, because it was upon no issue involved in the case. The jury answered the question in, the negative, and at the same time returned a general verdict for plaintiff, reciting therein “that the defendant withholds 'the possession of the same (the premises in dispute) from him.” The record, therefore, discloses that the general verdict is inconsistent with this special finding. After the rendition of the verdict, plaintiff’s attorney moved the court to enter judgment for plaintiff in accordance with the verdict of the jury, which motion, after a hearing, was sustained by the court. Defendant gave notice of intention to1 move for a new trial to be based upon “affidavits to be filed and upon a statement of the case to be prepared and settled.” A statement on motion for a new trial and bill of exceptions was then settled. The recoi d does not disclose whether a motion for a new trial was ever made or passed uppn by the court. The appeal is taken from the judgment only.

The first error assigned is: “The court erred in setting aside finding No. 1.” We cannot consider this alleged error for the. following reasons:

First. The record does not disclose either a specific objection or exception to the action of the court iu that regard. The question arose upon the hearing of plaintiff’s motion for judgment upon the verdict. The court, in its ruling, stated: “This day motion to adopt findings and for judgment is argued by counsel, and by the court sustained, with the exception of finding No. 1, and judgment is' ordered entered herein in accordance' with said verdict.” No objection to this action of the court in regard to the special finding is disclosed by the record. The only exception wo find, which, by any possible construction, uould be beld to refer to this action of the court, is stated as follows: “The court ordered judgment entered in favor of plaintiff and against defendant, to which action of the court, and the whole thereof, the defendant then and there duly excepted.” In other words, counsel did not specifically object to' the action of the court below. in disregarding finding No. 1, and did not specifically except thereto, but relied entirely upon an exception to the entry of judgment. We do not think that this exception is sufficient to’ warrant consideration of the error assigned.

Second. The record does not disclose that the defendant sought in any w<ay or manner to take advantage of the inconsistency of this finding- Na 1 with- the general verdict by motion for judgment upon such finding notwithstanding the general verdict. We do not believe that the court m, bound, in the absence of any action on the part of defendant indicating any reliance upon this finding, to give the defendant any benefit arising from its existence. How can wei say that, if defendant had made a motion for judgment upon this finding disregarding the general verdict, it would- not have been granted ? The following authorities hold directly, under statutes almost identical with ours, that,, in order to have the question of inconsistency between a special finding and general verdict considered or passed upon by -the appellate court, the party claiming such inconsistency must move the court below for judgment in his favor upon the special finding. (Tritlipo v. Lacy, 55 Ind. 287; Toledo W. & W. R. W. Co. v. Craft, 62 Ind. 395; Bartlett v. P. C. & St. L. Ry. Co., 94 Ind. 281; North Western Mut. Fire Ins. C. v. Blankenship, 94 Ind. 535, 18 Am. Rep. 185; Carter & Bro. v. Mo. M. & L. Co., 6 Okla. 11, 41 Pac. 356.) The rule is stated by the text-writers as follows: “In order to obtain the advantage of special findings, a motion fop a judgment upon them is necessary.” (Thompson on Trials, Sec. 2696. “A motion for judgment on the special findings is necessary, as otherwise the judgment will be enforced as a matter of course upon the general verdict. In the absence of such a motion in the trial court, n¡o question concerning the right to such judgment can be raised on appeal.” (20 Enc. Pl. & Pr. 375.) We agree witb tibe doctrine bere announced.

Tbe nest error specified is tbaí¡ “tbe court erred in admitting tbe plaintiffs location notice of tbe Key Note.” We bare examined tbe notice .of location referred to, and tbe same seems to be regular in every respect, and in accordance with tbe provisions of tbe statute of this, state. We, therefore, are of the opinion that, tbe court correctly admitted it in evidence.

The next error alleged is that “the court erred in excluding the location of defendant’s Keyno claim.” We have examined this notice of location, and are satisfied that it does not conform to the statute of the state of Montana, or with the construction thereof by this court in the case of Purdum v. Laddin, 23 Mont. 387, 59 Pac. 153. The question as to the right of the legislature to provide rules for the marking of the boundaries of mining claims, and providing for a record of such location, and what the recorded paper must contain, has so> long been recognized in this state, and has so many times been approved by this court, that it would be useless to enter again! into any consideration of the questions so decided. We are satisfied, therefore, that the court did not err in excluding the location notice of the Keyno claim.

All other errors specified in the brief have been waived, either in the brief itself or by counsel for the appellant in his argument before the court.

Binding no, error in the record, we advise that the judgment appealed from be affirmed.

Pee Cueiam. — Por the reasons stated in the foregoing opinion, the judgment appealed from is affirmed.


author: MR. CHIEF JUSTICE BRANTLY,

text:
    STATE ex rel HEINZE, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,940.)
    (Submitted April 23, 1903.
    Decided May 25, 1903.)

      Appeal — Orders Appealable ■ — Time for Appeal — Special Proceedings — Application for Receiver — Bill of Exceptions— Motions — New Trials.

    1. Tending an action to settle a controversy as to the ownership of a mining claim, a receiver was appointed. On appeal the order of appointment was reversed. Thereafter, on January 17th, a hearing was had on the final report of the receiver, and at the conclusion thereof the court made an order fixing his compensation at a certain sum, and allowing him certain further sums for counsel and stenographer’s fees. The order contained no . provision as to who should be charged with these allowances. Two days later the receiver.moved for an order requiring the plaintiff in the action to pay the allowances, and on January 31st the motion was granted, and an order entered in the form of a final judgment against the plaintiff for the amount thereof, Held, that the order of January 31st, and not that of January 17th, was the appealable order.
    2. ~Ah application for the appointment of a receiver to work a mining claim pending a suit to settle a controversy as to the title thereto is not a “special proceeding,” within the meaning of the Code of Civil Procedure, Section 1722, which, as amended by Acts 1899, page 146, provides that an appeal may be taken from a final judgment in an action or special proceeding within one year after the entry of judgment, but is a provisional remedy, which may only be had in an action, and cannot be made except as ancillary to and a step in the action itself.
    3. Code of Civil Procedure, Section 1723, as amended by the Act of 1899, provides that an appeal may be taken from a final judgment in an action or special proceeding within one year after the entry of judgment; from an order appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver, within sixty days after entry thereof. Pending , an action to settle a controversy as to the ownership of a mining claim, a receiver was appointed to work the property. On appeal the order of appointment was reversed. Afterwards an order was entered in the nature of a final judgment against the plaintiff in the action for the amount allowed the receiver for compensation, counsel fees, etc. Held to be a “final order in an action,” and appealable within one year, and not an order “with respect to a receivership,” appealable only for sixty days.
    4. It is improper for the court to refuse to settle a bill of exceptions tendered in due time, for, while the appeal will lie whether the bill is made a part of the record or not, the papers and other evidence used on the hearing and the rulings on the objections cannot be of avail unless incorporated in a bill.

      5. A motion for a new trial does not lie in a proceeding to settle the accounts of a receiver and to fix his compensation.
    6. A motion which does not ask for a decision of an issue of fact arising upon formal pleadings is not the subject of a motion for new trial.
    7. The court has no jurisdiction to settle a statement and bill of exceptions in support of a motion for a new trial in a proceeding where such motion does not lie.
    ORIGINAL application by the state, on, tbe relation of Arthur P. Heinze, for a writ of mandate directed to William Clancy, as judge of tbe Second judicial district court.
    Granted in part.
    STATEMENT OE THE CASE.
    Original application on tbe relation of Arthur P. Heinze for a writ of mandate to compel William Clancy, as judge of tbe Second judicial district court, to settle a bill of exceptions-, and also a- statement and bill of exceptions to- be used on motion for a new trial. Tbe facts out of which tbe controversy arises are tbe following: Tbe relator with others-, on August 12, 1899, brought an action in tbe district court of Silver Bow county against the Parrot Silver & Copper Mining Company. Tbe purpose of tbe action was to' settle a controversy as to tbe ownership of tbe Nipper lode mining claim, and in tbe meantime, and until the action co-uld be determined, to restrain- tbe defendant co-rp|Oratio-n from extracting 'and removing ore from the claim. This action was designated on the conrt calendar as cause No. 8,087. Tbe relator did not allege ownership in tbe claim, but joined in tbe action as lessee of tbe interests owned by tbe other plaintiffs. While tbe action was pending, and on March 5, 1900, the relator, having himself been enjoined from mining the property in an action brought by tbe defendant corporation,made application in cause No. 8,087 for tbe appointment of a receiver to mine tbe property, and to bold tbe proceeds pending tbe action, purposing by this means, if possible, to- protect bis leasehold interest. Upon a bearing of this application tbe court appointed one Thomas. McLaughlin receiver, and on May 16th tbe receiver entered into possession of tbe property, and operated it until, upon appeal to this court, .the order of appoint-menfi was reversed. (Hickey v. Parrot 8. & G. Go., 25 Mont. 164, 64 Pac. 330.) When the cause was remanded to> the district court, the receiver ceased operations under the order of appointment, and returned the possession of the property to the plaintiffs in the action. This he did on March 25, 1901. During his operations, covering a period' of about ten months, he tiled monthly accounts of his receipts and expenditures, with the clerk of the court, but the relator did not at any time make any objection to them in any particular, though it appeared that the operations resulted in loss in the aggregate of $10,342.29. The defendant corporation filed objections to each account. No order was made with reference to them, however, nor were any steps taken to have them settled and á formal discharge of the receiver obtained, until May 28, 1902. On that day, under an order of the court, upon a stipulation by the receiver and the defendant, these accounts were referred to William E. Carroll,, Esq., as referee, for an adjustment of the disputed items. Thereafter the referee filed his report overruling all the objections. In the meantime the receiver filed his final report, in which he made a claim for compensation for himself and an allowance for counsel and stenographer’s fees. On December 30th an order was made adopting the report of the referee. On January 8, 1903, a hearing was had upon the final report of the receiver and objections, made thereto by the relator and his co-plaintiffs. The objections presented a controversy as to the amount of the compensation claimed by the. receiver, as well as to compensation in any amount for the time subsequent to the date of the remittitur from this court, and as to any allowance for counsel and stenographer’s fees covering the same period of time. EViderice as to the value of these services, both of the receiver and his counsel, was admitted over the objections of the relator, and his- exceptions were noted. At the conclusion of the hearing, and on January lYth, the court made an order fixing the compensation of the receiver at $16,000, less a payment already made to> him of $4,569, and allowing him $10,000 for counsel fees covering the time after the annulment of the order of appointment. An' allowance of $125 for stenographer’s fees during the time was also> made; The order contained no provision as to' whether the plaintiffs or the defendant, or any of them, should be charged with these allowances. Thereupon, and within the time granted by the court for that purpose, counsel for relator prepared and served upon the receiver and the defendant his bill of exceptions. The court granted the receiver time within which to! propose amendments, but none were proposed. On April 11, 1903, within the ten days allowed by the statute, and after service and upon due notice to the receiver and the defendant, the bill was presented to the judge for settlement. IJpbn objection by the receiver and the defendant, the judge, William Clancy, refused to settle the till. The refusal was apparently based upon the theory that, if the order was appealable at all, the appeal should have been taken within sixty days from its entry, and, this time having already elapsed without an appeal, the settlement of the bill would be nugatory. On January 19th the receiver, through his counsel, and upon notice to the relator, moved the court for an order directing and requiring the relator to pay- the allowances fixed in the order of January 17th. This motion was granted, and on January 31st the court entered an order in the forms of a final judgment against the relator for the amount of the allowances, aggregating $21,556, and directing, execution to issue therefor*. Within ten days from! this date the relator served upon counsel for the receiver and for the defendant in cause 8,087 and filed with the clerk his notice of intention to move for a new trial, setting forth the statutory grounds of motion. Within the time allowed by the court, he served his bill of exceptions and statement in support of the motion upon the defendant and the receiver. These .latter proposed no amendments. Thereupon, on April 15th, and within the ten days allowed after the time for amendments had expired, the bill and statement were, upon notice;, presented to the judge for settlement. Objection was made to the settlements on the grounds, first, that the notice of intention had not been given in time; second, that a motion for a new tidal was not allowed by the statute; and, third, that, as the sixty days within which an appeal would lie from the order had already expired, and no appeal had been taken, a settlement of the bill and statement would serve no useful purpose. The judge sustained the objection, and declined to make the proper certificate of settlement.
    Upon the filing of an affidavit setting forth these facts, an alternative writ was issued. The defendant judge appeared, and filed a demurrer raising a legal issue upon the sufficiency of the facts to warrant the relief sought. By consent an answer, was also filed, but without vuiving the legal issue presented by the demurrer, and, after argument^ the matter was submitted.

      Mr. James M. Benny, for Belator.

      Messrs. Kirk & Clinton, and Mr. H. L. Mawjj. for Respondents.
   MR. CHIEF JUSTICE BRANTLY,

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

The answer presents no> material issue of fact. We shall therefore consider the questions raised by the demurrer. These are : (1) Does an appeal lie from the order of January 31st as from, a final judgment within one year from, the date of entry, and, incidentally, was it the duty of the judge to settle the bill of exceptions presented on April 11th? (2) Under the provisions of the statute, does- a motion for a new. trial lie in a proceeding to settle the accounts of a receiver and to fix his compensation ?

1. Section 1122 of the Code of Civil Procedure, as amended by the Act of 1899 (page 146, Sess. Laws 1899), provides: “An appeal may be taken to- the supreme court from a district court, in the following eases: (1) Erom a final judgment entered in an action or special proceeding commenced in a district court. * * "" (2) * * From an order appointing or refusing to appoint' a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver.” Section 1723, as amended by the same Act, provides that “an appeal may be taken from a final judgment in an action or special proceeding * * * within one year after the entry of judgment,” and that an appeal may be taken from any of the orders mentioned in Subdivision 2 of Section 1722 within sixty days after the same is entered in the minutes of the court or filed with the clerk.

Counsel for the defendant insist that, if the order for the review of which the bill of exceptions presented on April 11th is intended to furnish the basis is appealable at all, the appeal must be taken within sixty days from the date of it, and that, as this was not donei, the presiding judge may not be compelled to settle the bill, beca,use, the time for appeal having expired, the settlement of the bill would be a useless act. Counsel do not seem to have a clear notion as to whether the order of January 17th or that of January 31st is the one from which the appeal may be taken. The whole proceeding in the court below seems to have been conducted by piecemeal. We are of the opinion that the time within which an appeal may be taken began to run from the date of the final order in thel proceeding, namely, from January 31st. It was only upon the entry of this order that the parties to the controversy could ascertain what their rights were as declared by the court. The proceedings had and orders made up to that time were intermediate, and, like the proceedings and orders upon the trial of an action, were merely the successive steps in the hearing’ which resulted in the final order or judgment determining the rights of the parties. Having reached this conclusion, it is necessary to - decide whether this order is a final judgment within the meaning of the first subdivision of Section 1722, or whether it is an order “giving directions with respect to' a receivership',” and falls in the list of orders enumerated in the second subdivision of that section. If it falls within the first category, an appeal will lie within one year, under the first subdivision of Section 1723; otherwise the second subdivision of the latter section applies, ■ and the time for appeal has long since elapsed.

It will be noticed that the! language of the first subdivision is “from a final judgment in an action or special proceeding,” and not “from the final judgment,” etc. Counsel for the relator argues that the application for a receiver* was. a) special proceeding within the meaning of Sections 3410* and 3472 of the Code of Civil Procedure, and therefore that, the order being a final disposition of the receivership;, the appeal comes within the provision touching special proceedings'. We do not think this the correct view. The appointment -of a receiver is a provisional remedy, which may be had in an action, and cannot be made except as ancillary to and a step in the action, itself. The expression “special proceedings” has no reference to provisional remedies in actions at law or in equity, but to such proceedings as may be commenced independently of a pending action by petition or motion, upon notice/in order to obtain special relief. The provisions touching such proceedings are found in Pai*t III (Sections 1930-3081) of the Code of Civil Procedure1. Provisional remedies by way of injunction, receiverships, etc., are provided for in Part II (Sections. 800-981) of that Code, and are incidental to formal actions brought in the ordinary way. We think, however, that the order falls clearly within the meaning of “a final judgment in an action,” as used in that section, and is not an order “with respect to a receivership.” The expression “with respect to a receivership^’ has reference to an active receiver engaged in the discharge of his duties and the orders made directing him therein. The right of appeal under this provision is granted to' the, parties, and not to the receiver. Nor does it, we thinlc, have reference! to controversies arising between the parties and the receiver" as to his fees and allowances made by the court. The fees' of the receiver may be allowed as costs, and taxed against the losing party upon the entry of final judgment in the action. (State ex rel. Cornue v. Lindsay, 24 Mont. 352, 61 Pac. 883; Hutchinson v. Hampton, 1 Mont. 39 ; Ervin v. Collier, 2 Mont. 605.) But this does not preclude the court upon a discharge of the receiver before the conclusion of the action, as was the case here, from fixing his compensation, and adjudging payment thereof against the party at whose instance he was wrongfully appointed otherwise the receiver, not having funds in his hands out of which his compensation could be paid, would be compelled to wait until the final determination of the action before his compensation could be allowed and paid. This view, we think, is sound npon principle. The order of January 31st was, in effect, a final judgment, making disipp-sition of the branch of tbe case touching the receivership, and as such, we think, an appeal will lie therefrom at any time within one year from the date of its entry. “A final judgment is not necessarily the last, one in an action. A judgment that is conclusive of. any question in a case is final as to that question. The Code provides for an appeal from a final judgment, not from the final judgment in an action.” (Sharon v Sharon, 67 Cal. 185, 7 Pac. 456, 635, 8 Pac. 709.) This case was an action for a divorce. Pending the action an order was made granting the plaintiff alimony and counsel fees. The defendant appealed. On motion to dismiss the appeal the court held the order ap-pealable under the statute granting the right of appeal from a final judgment. The same conclusion was announced by this court, and .the case of Sharon v. Sharon approved, in the case of In re Finkelstein, 13 Mont. 427, 34 Pac. 847, and in State ex rel. Nixon v. District Court, 14 Mont. 396, 40 Pac. 66. The order under consideration, being in form and effect a final judgment, is entirely aualogus to an order awarding alimony and counsel fees in divorce cases.. The following cases involving questions touching the character and appealability of similar orders are in ppint, and, we think, conclusive: Tuttle v. Claflin, 31 C. C. A. 419, 88 Fed. 122; Daniels v. Daniels, 9 Colo. 133, 10 Pac. 657; Chandler v. Cushing-Young Shingle Co., 13 Wash. 89, 42 Pac. 549; Hecht v. Hecht, 28 Ark. 92; Trustees y. Greenough, 105 U. S. 527, 26 L. Ed. 1157; Williams v. Morgan, 111 U. S. 684, 4 Sup. Ct. 638, 28 L. Ed. 559; Patterson v. Ward, 6 N. Dak. 359, 71 N. W. 543; Hovey v McDonald, 109 U. S. 150, 3 Sup. Ct. 136, 27 L. Ed. 888.

On this branch of the case it remains to consider only whether tbe court should have settled the bill of exceptions tendered on April 11th. The relator was present at the hearing, and had interposed objections to the admission of evidence. He had taken exceptions to adverse rulings upon his objections, as well as to other matters presented and determined against him. It appears from the facts stated in the affidavit that he proceeded within the time allowed by Section 1155 of the Code of Civil Procedure to have the bill settled, and made a part of the record, so as to make his exceptions available on appeal. This he had a right to do under the express provisions of this section as to any ruling adverse to him during the trial to which he reserved exceptions. The court should have settled the bill, and a refusal to do so was tantamount toi a denial of the right of appeal, for, though the appeal would lie whether the bill was made a part of the record or not, the papers and other evidence used on the hearing and the rulings of the court upon the objections of the relator could not be of avail unless incorporated in a bill. (Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838.)

2. Does a motion for a new trial lie in the proceeding under consideration ? A new trial is a re-examination of an issue of fact. (Code of Civil Procedure, Sec. 1110.) The expression ‘‘issue of fact,” used in its broader sense, would include every issue of fact, whether arising upon formal pleadings or upon a motion. As used here, however, it refers only to issues of fact raised by formal pleadings, as defined in Section 1033 of the Code of Civil Procedure. The definition here given clearly excludes issues arising upon affidavits or oral evidence used on motions. That this is so is made clear by Sections 1113, 1116, and other provisions touching new trials and appeals, all of which contemplate issues arising in actions. There is, therefore, no authority in the Code for a motion for a new trial of a motion. In such erase, if a rehearing in the same court of the matters involved in the motion is desired, the proper practice is to apply for leave to renew the motion. If the purpose is to have it reviewed on appeal, it is sufficient to present to the supreme court the order, with a bill of exceptions incorporating the rulings of which complaint is made. Therefore a motion which does not ask for a decision of an issue of fact arising upon formal pleadings is not the subject of a motion for a new trial. These are the views of the supreme court of California upon identical provisions touching new trials. (Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103.) We adopt and approve them. It necessarily follows that the court was under no legal duty to settle the statement and bill of exceptions in support of the motion for a new trial. They were not intended to make a part of the record the objections, rulings of the court thereon, and exceptions reserved by the relator during the hearing under’ Section 1152 of the Code of Civil Procedure, as was the bill presented on April 11th, but were intended to* preserve the same matters as the basis of a motion for a new trial under Section 1173. The course of procedure adopted could be pursued only under the provisions of the latter section. Therefore, as the motion did not lie, the proceeding to' settle the statement and bill in support of the motion was a matter without the jurisdiction of the court, and1 the settlement was properly denied.

Rehearing denied June 13, 1903.

In so far as the application seeks a settlement of the statement and bill of exceptions in support of the motion' for a new trial it is denied. The peremptory writ will issue, however, directing and requiring the district judge to settle and.make a part of the record the hill of exceptions presented for settlement on April 11th. ' ' ■