author: MR. CHIEF JUSTICE BRANTLY,

text:
    BENNETT BROTHERS CO., Appellant, v. TAM, Dependant, FITCHETT, Intervenor and Respondent.
    [No. 1243.]
    [Submitted July 5, 1900.
    Decided November 19, 1900.]

      Replevin —Sales — Conditional Sales — Liens — Chattel Mortgage — Retahing Property — Demand.
    1. It is a conditional sale, and not an absolute sale with retention oí lien,where the contract provides that the condition of the sale is that title, ownership or right of possession does not pass till the note taken for the articles is paid, and that in case of default, or attempt to dispose of the articles without consent of the sellers, they shall have the right to retake them, and in such ease all money paid on the purchase price shall belong to them as stipulated damages; that they also shall have power to declare the note due and take possession of the articles at any time they deem themselves insecure; and that the full, absolute, and complete title to the articles shall pass to the purchaser on full payment of the purchase money.
    2. ] Under the laws of Montana, a conditional sale (i. e. not an absolute sale with retention of lien), is not in effect a mortgage and is not void as to innocent third parties, though never acknowledged and recorded with an affidavit.
    3. Even if a contract of conditional sale be void, it does not avail the purchaser, or one claiming under him, in an action by the seller for the chattels, as title remains in the seller.
    4. One making a conditional sale of chattels does not lose his right to retake them for non-payment of purchase price by failing to act immediately on learning of a resale to another, and by thereafter collecting part of the purchase money from the original purchaser.
    5. There is a sufficient demand to sustain an action of claim and delivery; the demand being for payment of the balance of the purchase money, or that the article purchased be delivered up, and the reply being that it could be obtained only “at the end of two law suits.”

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

    Action by the Bennett Bros. Company against K. D. Tam. tí. F. Fitchett intervened. Judgment against plaintiff, and it appeals.
    Reversed.
    Statement oe the Case.
    Action in claim and delivery. On April 8, 1896, the plaintiff was the owner and in possession of the property involved in this suit, and on that day sold and delivered the same to John I. Pittman under the following written contract, signed by the said Pittman and one J. V. Lemon:
    “§1515.00.
    Butte, Montana, Apr. 8th, 1896.
    On or before the 8th day of July, 1896, for value received, we or either of us promise to pay Bennett Brothers Company, or order, one hundred and twenty-five and — dollars, payable in currency funds, with interest at the rate of no per cent, per mo. from date, 189 — , to maturity, 189 — ; and, if not paid when due, interest to be at the rate of 14 per cent, per mo. from maturity until paid, both before and after judgment, and twenty per cent, of full amount for attorney’s fees if suit shall be instituted on this note for collection. ’ ’
    £ ‘The express condition of the sale, purchase, and delivery of the articles described on the back of this instrument is such that the title, ownership, or right of possession does not pass from the said Bennett Brothers Co. until this note and interest and all other notes and interest taken for the said articles are paid in full; and in case of default in the payment of any part of said note, principal or interest, when due, or of any judgment rendered thereon, or in case of any attempt to incumber, dispose of, or to remove said articles from the county of S. Bow, in the state of Montana, without the written consent of Bennett Brothers Co., its agents or assigns, the maker or purchaser shall, on demand, deliver said articles to the said Bennett Brothers Co/, its agents or assigns, in as good condition as when received, reasonable use and wear thereof excepted, and the said Bennett Brothers Co., its agents or assigns, shall have the right to enter upon any premises where the said articles may be found, using such force as may be necessary to enter and take the same; and in case said Bennett Brothers Co., its agents or assigns, shall retake possession of the said articles, all moneys paid on the purchase price thereof shall belong to the said Bennett Brothers Co., or its assigns, as stipulated damages for the non-fulfillment of this contract for depreciation of the value of said articles, and for use or rental of said articles while the same remained in the possession of the purchaser. The said Bennett Brothers Co., or its assigns, have full power to declare this note due and to take possession of the said articles at any time they may deem themselves insecure, — even before the maturity of this note.
    “In the event of the payment of all notes, principal and interest, taken for said articles, and of any judgment or judgments obtained thereon, the full, absolute, and complete title to said articles shall pass to and vest in the purchaser thereof, the maker of this note.
    “Due July 8th, 1896.
    [Signed] John I. Pittman, [Seal.]
    J. Y. Lemon, [Seal.]”
    “The subject of the contract is described upon the back of this instrument as a “Peerless buggy, Jackson springs.”
    The complaint alleges generally ownership and right of possession of the property in the plaintiff, that its value is §100, and that defendant Tam wrongfully detains the same from plaintiff after demand for its return. This defendant, in her answer, puts in issue all the allegations of the complaint, except as to the value, and alleges title in herself by purchase from defendant Fitchett. After the issues were made up between plaintiff and defendant Tam, upon application for that purpose, the plaintiff interposing no objection, Fitchett was allowed to intervene, and to be substituted for the defendant Tam. This substitution was made upon a showing by Fitchett that some time before the suit was brought he had purchased the buggy from Pittman in good faith and for value, without knowledge of any claim thereto by plaintiff; that thereafter he had sold the same to defendant Tam under an agreement that he would protect her against any suit brought to recover it from her; that defendant Tam, as he was informed, did not intend to defend the action in good faith; and that he was therefore interested in having a defense made to the action, to the end that he might protect himself from a suit for damages by defendant Tam upon his agreement with her. In his complaint of intervention, besides denying generally all of plaintiff’s allegations, he states affirmatively the facts touching his purchase from Pittman, and avers that if plaintiff ever had any rights to the possession of the buggy, or any lien thereon, such right had been forfeited by reason of plaintiff’s “fraud, neglect and laches” in permitting Pittman to retain possesion of it under a claim of ownership, and to sell it to the intervenor without notice to him, constructively or otherwise, of its claim.
    To this complaint plaintiff interposed a denial. The contract was not recorded with the clerk of Silver Bow county. At the trial the plaintiff rested its case upon the contract and proof of default in payment according to its terms, and that there was due and still unpaid, of the purchase price named therein, the sum of $65, with accrued interest. It further appeared that Fritchett purchased the buggy from Pittman on July 15, 1896, for $65, without knowledge of plaintiff’s claim, and that some time about the close of the year he sold it to the defendant Tam under an agreement to protect her against any suit by the plaintiff. All payments upon the purchase price were made by Pittman at different times after the sale to Fitchett, and at least one of them, amounting to $25, was made after the agents of plaintiff were informed that Fitchett had purchased the buggy. In the early part of December, 1896, one of the agents of plaintiff demanded of Fitchett that he either pay the balance due under the contract, or deliver up the buggy to plaintiff. Fitchett replied that he would do neither; that he had purchased the buggy honestly, that it was his, and that the only way that plaintiff could get it ‘ ‘was at the end of two lawsuits.’ There was no proof showing what, if any, interest Lemon had under the contract. Pittman was in possession of the buggy until it was sold to Fitchett. Defendant Tam took no part in the trial of the cause. It was assumed by the Court and both parties that Fitchett was the defendant in interest, and he was so treated. After the evidence was heard, counsel for defendant Fitchett moved the Court to direct a verdict in his favor upon the following grounds: (1) That the contract upon which plaintiff relies for recovery is a contract for a lien only, and that no recovery can be had upon it under an allegation of ownership; (2) that, though binding as between the parties, it is void as to innocent purchasers; (3) that it is void because it provides for a forfeiture, upon default in the payment of the purchase price named therein, of all payments already made, and deprives the makers of the right of redemption; and (4) that plaintiff lost any right it had to enforce the contract by reason of its neglect to do so promptly after default, and by accepting payments from Pittman with knowledge of bis sale to Fitchett. This motion was sustained generally, and the jury were instructed to find upon the question of value and damages only, and to render a verdict accordingly. The jury found the value to be $65, and the damages $1. Judgment was thereupon entered. The plaintiff has appealed from this judgment, and an order denying it a new trial.

      Mr. Robert McBride, for Appellant.

      Messrs. Shropshire da Gilchrist, for Respondent.
    In view of the facts we claim: (1) That in any event the plaintiff had only a lien upon the buggy for the purchase price, for which this action of replevin will not lie. (2) That even if the plaintiffs had any rights under the conditional sale note as against this intervenor, they waived them by their fraud, laches and conduct. (3) That such a transaction as is evidenced by the note in question is not countenanced nor permitted by the Code as against purchasers in good faith without notice.
    We are aware of the several decisions of this Court adhering to the early rule of the common law and the decisions of several states, but none, as we contend, of the decisions of this Court, and but few of the numerous authorities in other states, involve the precise questions raised here. (Heinboohle v. Zugbatim, 5 Mont. 344; Sam,ford v. Gates, Townsend db Co., 21 Mont. 277, 53 Pac. 749; Goodhind v. Gilliam, 19 Mont. 385, 48 Pac. 548.)
    Our research has disclosed a very decided conflict of authorities on the question of the validity of conditional sales, and notwithstanding the unguarded dicta of some of the courts, the authorities are not “overwhelming” on either side. It has been held: “The general doctrine of the American cases is not universally conceded, and there are many cases holding that, where chattels are sold and delivered conditionally, that the vendor’s right to the property will remain good as against the vendee and his voluntary assignee, but not as against a bona fide purchaser without notice. ” (3 Ency. of Law, 436.)
    Following the above citation is a long list of authorities showing that they are very nearly equally divided on the question. Notwithstanding this, however, and the tendency of the later decisions, the question here is what are the rights of third parties in cases of this kind under the statutes? It will be conceded that, if our code requires such transactions to be recorded, they are void as to third parties if they are not; and if the terms of the conditional sale are in any respect repugnant to the statute, they are equally void. It will be seen that in most of the states heretofore holding to the common law, the rule has been changed by statute, so that the authorities which are and might be further cited by appellant, are of no binding force, if our statute has changed the rule, as we contend it has. In the 21 Ency. of Law is cited 18 states which have thus changed the rule. (21 Ency. of Law, 654, n.) In addition to these 18 states can be cited Connecticut, Washington, Idaho, Wyoming, Colorado and Missouri, which have changed the rule. If, as we contend the plaintiff’s only had a lien,on the property, this action cannot be maintained.
    This is a replevin action in which the plaintiff alleges ownership. They must prove ownership, or fail; they cannot fall back on a mere lien. If a lien only, the statute prescribes the manner -in which it must be foreclosed. (Cobby on Replevin, See. 601; Hudson v. Swan, 83 N. Y. 552\ Parry Mfg. Co. v. Myton, 54 Fac. 291.) Are the plaintiff’s estopped to enforce the condition of this note by their laches? Considering the circumstances, of accepting payments, with knowledge of the disposition of the buggy, extending the time, and delaying to assert their claim is evidence of an intent to waive the condition and to hold Fitman. There is sufficient also in the record to raise a suspicion of fraud and collusion between Tam and the plaintiff’s to defeat Fitchett. [Bobbins v. Phillips, 68 Mo. 100; Hutchings v. Munger, 41 N Y. 155.)
    It is a well established principle of law that where a party has the right to exercise an option in a certain event, he waives his right to insist upon the option, if, after the happening of the event, he recognizes the changed condition of affairs. This is certainly what the plaintiffs did by accepting payments, extending the time, and delaying to assert their claim. [Nagel v. League, 70 Mo. App. 487.) In a Massachusetts case, while the Court held to the validity of conditional sales, a party having the right to enforce an option might waive it by laches. This was a case where a party having the right to require security, waited only eight days after delivery without demanding the security, and it was held that the right to demand the property was waived as to the attaching creditors. [Smithr. Devine, 17 Am. D. 368.) But we contend the plaintiff cannot enforce the condition of this contract under the statute as against the intervenor. This is the principal question, and it involves the validity of the contract, so far, at least, as its principal conditions are concerned.
    ■ The first question is whether or not the contract comes within the recording acts. If it does, then it is plain that the plaintiffs have only a lien, the same as if it was a mortgage. (Civil Code, Sec. 3871.) It is conceded that there are authorities which hold that these conditional sale contracts do not come within the recording acts; but it is also held that where it is not clear whether the instrument evidences a conditional sale or mortgage, the preference will be given to the latter construction, thus bringing them within the acts. (20 Eney. of Law, Secs. 537-8.) But the courts are now beginning to hold that these reservations of title operate as mortgages. (44 S. W. 124; 3 Eney. of Law, 437 n.; Kintle v. Cushing, 44 Am.' R. 598; Lugus v. Campbell, 31 Am. R. 81 n.) Sec. 3871 of our Code is the same in principle as°the Illinois Code, and in substance as the Iowa Code, and under these the courts of these states have held'that such contracts should be recorded. {IIervey\. Logo. Works, 93 U. S. 664-,Fosdick v. Schall, 99 U. S. 235; Myer v. Gar Co. 102 U. S. 1.) The statute of Missouri is also similar, and the Supreme Court of the United States, construing it, says: ‘ ‘The plain purpose of this statute was to render secret liens upon personal property ineffectual as against purchasers and creditors.” (Ilerryford.v. Davis, 102 U. S. 235.) The Kentucky statute has been held by the Federal Court to include conditional sales, as to recording. (Hart v. Barney Smith da Co. 7 Fed. 543.) '
    In view of these authorities, it would seem that the foregoing provision of the Code should be construed to include conditional sale contracts, but there is another provision bearing* somewhat on the question as well. (Civil Code, Secs. 3813-14.) This question has been thus far presented on the supposition that the contract in question was a valid one in other respects. We now come to the question of its invalidity in ■ respect to certain of its terms. In these respects we contend that it was a contract that Pitman had no right to make and the plaintiffs no power to enforce. It was not good as between the parties, and void as to the intervenor who purchased without notice. In the first place the Code seems to-discountenance, if not directly prohibit, conditional sales with the usual conditions of such instruments, and the only direct reference to them is in respect to railroad equipment, and they may be made valid under certain conditions. (Civil Code, Sec. 930.) An owner may lose his property by placing it in possession of another with power to sell. (Civil Code, Sec. 1542.) "A contract providing for the forfeiture of property and restraining the right to redeem is void. (Civil Code, Sec. 3751.) The whole policy of our law, expressed and otherwise, is opposed to secret liens and forfeitures, and it must be conceded that after Pitman had made the payments he did, he acquired an interest in the property subject only to the lien of the plaintiffs. (Civil Code, Sec. 3780.) The statute does not permit parties to make unconscionable contracts, and where a party agrees to pay damages in anticipation of the amount that will be sustained, the contract to that extent is void. (Civil Code, Sec. 2243; 13 Pac. 858; 44 Pac. 566.)
   MR. CHIEF JUSTICE BRANTLY,

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

The record does not disclose upon which one of the grounds the motion was sustained. It is therefore incumbent upon us to examine them all, and, if any one of them justifies such action, the judgment and order must be affirmed; for, though several other errors are assigned in plaintiff’s brief, the questions presented by the motion are the only ones pressed upon our attention.

We shall most conveniently consider the first and second grounds together. Our attention is thus invited to the nature of the written contract set forth in the statement. The plaintiff insists that it evidences a conditional sale; defendant insists that the sale was absolute, vesting title to the buggy in the purchaser, subject only to a lien in favor of the plaintiff, and that this lien was lost when the property passed into the hands of Fitohett. We think plaintiff’s'construction the correct one. Taking the instrument by its four corners, and deducing from the terms used therein by the parties themselves their intention at the time the contract was entered into, it is manifest that it was the intention of all the parties that the title should not pass to Pittman and Lemon, or either of them, until the purchase price should be fully paid. The payment is a condition precedent to the vesting of the title, the purchaser obtaining no right whatever to, or interest in, the subject of the contract, except to be vested with the title upon the full performance of this condition, and the possession and use of the property until default, or until the vendor exercises its option, upon deeming itself insecure, to declare the purchase price due, and to resume possession. Contracts of this character have been constantly upheld in this state, whether they have assumed the form of conditional sales, as in this instance, or that of a lease with the right to purchase; and it is well settled under our decisions that bona fide purchasers from the person who has possession of property under such a contract obtain no title to it as against the original vendor. This is upon the theory that the purchaser under the contract can convey no better right or title than he himself has. The vendor under such a contract remains the owner, and does not become a mere lienor, and his right to the possession after default, or upon the exercise of his option, is absolute. The case of Heinbockle v. Zugbaum, 5 Mont. 344, 5 Pac. 897, is determinative of the question here involved. It is there held, in substance, that a sale of chattels on condition that the title shall not pass until payment of the purchase price, though possession be delivered, confers no title on the vendee, or a bona fide purchaser from him, until the precedent condition be fully performed. The decision of this case was made after an examination of the decided cases, and by subsequent approval the rule therein stated has become the rule of decision in this Court. (Silver Bow Mining & Milling Co. v. Lowry, 6 Mont. 288, 12 Pac. 652; Miles v. Edsall, 7 Mont. 185, 14 Pac. 701; Goodkind v. Gilliam, 19 Mont. 385, 48 Pac. 548; Sanford v. Gates, Townsend & Co. et al., 21 Mont. 277, 53 Pac. 749.)

It is argued by the defendant that, notwithstanding the rule laid down by these cases, the contract in question is void as to the defendant, because it was never acknowledged and recorded with an affidavit of all the parties attached, as required by the provisions of Article III of Chapter II of Title XIY of the Civil Code, pertaining to mortgages of personal property. Sections 3861 — 3865 of that Code prescribe the requirements necessary to be observed in executing a mortgage, and Section 3861 provides that the omission of these requirements renders the contract void as to the creditors of the mortgagor and subsequent purchasers and incumbrancers of the property in good faith for value. Section 3871 also further provides: “The provisions of the foregoing sections of this article shall extend to all such bills of sale, deeds of trust, and other conveyances of goods, chattels, or personal property, as shall have the effect of a mortgage or lien upon such property. ’ ’ A mortgage, under our Code, is a mere lien (Civil Code, Sec. 3815), and a lien is defined as “a charge imposed in some mode other than by a transfer in trust upon specific property, by which it is made security for the performance of an act’ ’ (Civil Code, Sec. 3730). Examining Section 3871 with this definition in mind, we see at once that it has no reference to conditional sales like the one in question. Such contracts do not have the effect of a mortgage, nor is the situation of the parties with reference to the subject of the contract the same in case of the former as in case of the latter. In case of a conditional sale the absolute ownership remains in the vendor, while the vendee holds possession as a bailee or lessee, as the case may be, determinable by the vendor upon default or abuse of the property by the vendee before that contingency occurs. Under a mortgage contract such as is contemplated by the provisions of the statute referred to, a specific charge is fixed upon the property in favor of the mortgagee as security for the performance of the other stipulations of the contract by the mortgagor, he retaining both the title and possession until default. In the former case the rights of the vendee to the possession of the property are terminated by a resumption of possession by the vendor. Under the mortgage contract, though the mortgagee may take possession, the rights of the mortgagor can be terminated only by foreclosure, or by stipulation of the parties. In each case it is a matter of intention of the parties, and this Court, in laying down the rule of decision in the cases cited, has been guided ,by this intention as expressed by the parties, notwithstanding the provisions of Section 3871, which was among our statutes at the times these various decisions were rendered. (Revised Statutes 1879, Fifth Division, Sec. 905; Compiled Statutes 1887, Fifth Division, Sec. 1549.) The contract under consideration is not, in effect, a mortgage, nor is it void as to innocent third parties; and-it was error in the trial court to so hold.

Defendant argues that, though the trial court erred in sustaining the motion on the grounds just noticed, its action, can still be justified upon the third ground stated, and insists that the contract is void because it is in conflict with Section 2243 of the Civil Code, which provides: “Every contract by which the amount of damage to be paid, or other compensation to be made, for a breach of an obligation, is determined in anticipation thereof, is to that extent void, except as expressly provided in the next section.” Whether the stipulation mentioned comes within this provision or not is a question not necessary to be decided in this case. In any event, the "denunciation is directed at the particular agreement designated by the statute, and leaves the contract otherwise intact, to be enforced according to the intention of the parties, just the same as if this clause had been omitted. If, however, it be conceded that the contract is wholly void, this would not aid the defendant. The plaintiff’s title does not depend upon the contract. It had full title when the contract was made. The title could not pass to Pittman under a void contract. Therefore Pittman acquired no title, and could confer none upon Fitchett. The plaintiff would still be entitled to recover. The statutes regulating the right of redemption have no application to this case, because the plaintiff has never parted with its title. (Sanford v. Gates, Townsend & Co. et al., supra.) Under no view of the question presented by this ground of the motion can the action of the district court be sustained.

Nor can its action be sustained upon the last ground stated in the motion. There is nothing in the proof which tends to show that the plaintiff did anything to deceive or mislead Fitchett and Tam, or either of them, to their injury, or that either made purchase of the buggy upon an inducement, real or apparent, held out by any of plaintiff’s agents. True, Fitchett purchased without actual knowledge of the condition of the title, but he got no better right than Pittman had, and Tam obtained no better right than did Fitchett. If plaintiff chose to defer action against Fitchett, and endeavored to induce Pittman to fulfill his agreement, accepting payments from him, after knowledge of the sale to Fitchett, this was an act of grace on its part to the advantage of Fitchett, and he stands in no attitude to complain. (Van Allen v. Francis, 123 Cal. 474, 56 Pac. 339; Hegler v. Eddy, 53 Cal. 597; Quinn v. Parks & Lacy Machinery Co. 5 Wash. 276, 31 Pac. 866.)

Finally, defendant insists that the judgment and order of the district court should be affirmed because the proof fails to disclose a formal demand made upon him before this action was begun. There is no merit in this contention. The proof shows that the agent of plaintiff demanded of Fitchett in December, 1896, that he either pay the balance of the purchase price or deliver up the buggy, and that Fitchett then stated that he would do neither, that the buggy was his, and that the only way plaintiff could get it ‘was at the end of two law suits. ’ ’ Under the circumstances this shows sufficient demand. After the statement thus made by Fitchett, any further demand was entirely unnecessary. (Cobbey on Replevin (2d Ed.), Secs. 450, 474; Shinn on Replevin, Secs. 304, 305.)

The judgment and ordér appealed from are reversed, and the cause is remanded for a new trial.

Reversed and remanded.

Mr. Justice Word, being absent, takes no part in this decision.


source: Caselaw Access Project

author: MR. JUSTICE PIGOTT

license: Public Domain

text:
    KING, Respondent, v. PONY GOLD MINING CO. et al., Defendants, ELLING et al., Appellants.
    [No. 1514.]

      On Motion to Dismiss Appeals.

    [Submitted October 4, 1900.
    Decided November 19, 1900.]

      Appeals — Second Motion to Dismiss — Constitutional Law— Special Legislation — Amending Statutes — Surety Companies — Powers — Undertaking on Appeal — Sureties — Justification.

    1. Though a second motion to dismiss an appeal on grounds existing at the time of the first motion should ordinarily not be heard, it will be where the first motion was denied, with leave to move anew, on grounds not stated in the first motion, without restriction as to presentation of matters occurring after the filing of the first motion.
    2. Act March 9, 1893, which by Sections l, 2 (Code of Civil Procedure, Sections 1900, 1901), authorizes any corporation incorporated in the state for guarantying or becoming a surety on bonds to become a sole surety, without an affidavit showing qualifications, is not a special law regulating the practice in courts of justice, in violation of Const. Art. Y, Sec. 26, or a special law granting to a corporation a special or exclusive privilege, though it is not enjoyed by other corporations, and individual sureties must be at least two in number, and must accompany the bond with an affidavit of qualifications.
    3. Const. Art. V, Sec. 25, providing that no law shall be revised or amended, or the provisions thereof extended, “by reference to its title only, but so much thereof as is revised, amended or extended shall be reenacted and published at length,” has no application to an act which does not purport to be an amendment to or a revision of a prior act, but is an additional and independent piece of legislation, impliedly amending, and hence repealing, so much of the prior act as is in conflict with it.
    4. An “undertaking” on appeal is within Civil Code 1895, See. 604, subd. 3, authorizing the creation of corporations to execute or guaranty any “bond” required by law to be given in any proceeding in court.
    5. Under the statutes of Montana an “undertaking” on appeal is technically a “bond” within the common law definition, save that it need not be under seal.
    6. The fact that a surety company is insolvent does not deprive it of its power to execute an undertaking on appeal, so as to render the appeal ineffectual, in the absence of the action for making up deficiency in its assets, required by Code Civil Procedure, See. 1900, to be taken by the state auditor when its liabilities exceed its assets, pending payment of which deficiency said section provides said company shall not be accepted on a bond.
    7. The failure of a surety to an undertaking on appeal to justify upon exceptions to his sufficiency, or even his insolvency, of itself, furnishes no ground for the dismissal of the appeal.
    8. An approval by a justice of the Supreme Court of an undertaking on appeal, in accordance with section 1740 of the Code of Civil Procedure, is a determination that the surety is financially good and sufficient.

      Action by Rockwell King against the Pony Gold-Mining Company and others. Judgment for plaintiff. Defendants Henry Elling and another appeal. Plaintiff moves to dismiss appeals.
    Denied.

      Mr. Robert B. Smith, Mr. W. A. Clark, and Messrs. Cullen, Day, dt Cullen, for Appellants.

      Mr. T. J. Walsh, and Mr. F. P. Sterling, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

Elling and Morris, who were impleaded as co-defendants with the Pony Gold-Mining Company and Hauser, have appealed from a judgment against them and an order denying their motion for a new trial. In July last the respondent moved that the appeals be dismissed. Upon the denial of the motion, leave was granted to renew it upon grounds other than those contained in the first motion, and thereupon the respondent filed the motion now before the court. The grounds of the present motion existed and were known to the respondent when he filed the original motion to dismiss, and no reason is suggested why the matters now urged were omitted from the former motion. The general rule is that successive motions will not lie to dismiss an appeal where the grounds of the second motion existed at the time the first motion was interposed. It is not pretended that this Court is without power to entertain appeals in the class of cases to which the one at bar belongs; it is not said that this Court is without appellate jurisdiction of the subject-matter of actions of the class within which the one at bar falls; the sole contention is that this court is without jurisdiction of the appeals for the reason that the undertaking on appeal is void.

By failing to incorporate into the first motion to dismiss an appeal all the grounds which then existed, the respondent must, ordinarily, be deemed to have waived the grounds not therein specified. In the present instance, however, the Court granted to the respondent leave to move anew for the dismissal of the appeals upon grounds not stated in the former motion, and the motion now made sets out only additional grounds assailing the undertaking as void. Such a practice, is, as was held in Succession of Edwards, 34 La. Ann. 216, and Stevens v. Higginbotham, 6 Utah, 341, 23 Pac. 757, irregular, may lead to interminable delay, and should not be permitted. In granting leave to the respondent to renew his motion without restricting him to the presentation of matters occurring since the filing of the first motion, the court acted without due consideration, and it may perhaps be said that the order was improvidently made; but, since leave was granted, and the new motion filed in pursuance thereof, we feel indisposed to strike it from the files. We proceed, therefore, to consider the several grounds of the new motion.

To effectuate the appeals, an undertaking in the sum of $300 was filed. 'The Union Bank & Trust Company was the sole surety, and the undertaking is not accompanied by an affidavit of financial responsibility. The Union Bank & Trust Company was' and is a domestic corporation organized and doing business under and by virtue of the provisions of Chapter I, entitled “Trust Deposit and Security Corporations,” of Title III of Part IV of Division I of the Civil Code of 1895', being sections 590 to 611 of that Code. Subdivision 3 of. Section 604 provides, among other things, that corporations may be created under Chapter 1 for the purpose of executing or guarantying “any bond or bonds required by law to be given in any proceedings' in law or equity in any of the courts of this state or other state, or of the United States,” and Subdivision 10 provides that such corporations may be created for the purpose of becoming “indorser and surety * ' * * for a compensation upon such terms and conditions as shall be agreed upon by the trustees of such corporation. ’ ’ The amount of the capital stock actually subscribed by such a corporation shall not be less than $100,000. (Section 605.) If its directors shall knowingly declare and pay dividends when the corporation is insolvent, or pay any dividends which would render it insolvent, .“they shall be jointly and severally liable for all debts of the corporation then existing and for all that shall thereafter be contracted while they shall respectively continue in office. ” (Section 606.) Correct accounts of the transactions of the corporation shall be kept by the directors, and they must have full statements of the condition of affairs made out and exhibited to the stockholders as often as once in each year; at least 10 days before the day of election. The books and all records of the proceedings of the corporation shall at all times during their hours of business be open for inspection and examination to all stockholders, and to the auditor of the state, or to such person or persons as thp legislative assembly or the state auditor shall designate or appoint for that purpose. (Section 607.) Section 607 further provides that every such corporation shall make a report of its condition to the state auditor on the first Monday of each J anuary, April, July, and October, and at such other times as the auditor may call for it, under the oath of its president or treasurer, attested by a majority of the directors, showing in detail its liabilities and assets, and specifying its investments under heads of loans on mortgages, loans on collateral security, bonds and stocks, deposits in bank, and cash on hand; and that any officer or clerk of the corporation willfully making a wrong or false affidavit relative to the financial condition of the corporation shall be deemed guilty of perjury, and, upon conviction thereof, shall be punished accordingly. The sections referred to are parts of an act of the Third Legislative Assembly approved on the 8th day of March, 1893. (Laws of 1893, p. 105.) The articles of agreement and association set out the purposes for which the comp'any was formed, among which are those herinbefore mentioned.

By section 1725 of the Code of Civil Procedure it is provided that an undertaking to secure an appeal must be in a sum not less than §5300, and must be executed by at least two sureties, and by Sections 1731 and 1899 of the same Code the clerk with whom the undertaking is filed must require the sureties to accompany it with an affidavit that they are residents and householders or freeholders within the state, and are each worth the sum specified in the undertaking over and above all their just debts and liabilities, exclusive of property-exempt from executipn. Sections 1900 and 1901 of the Code of Civil Procedure, being Sections 1 and 2 of “An act relative to sureties on undertakings and bonds, ” approved March 9, 1893 (Laws of 1893, p. 70), are as follows:

“Sec. 1900. In all cases where an undertaking or bond with any number of sureties is authorized or required by any provision of- the Code, or any law of this state, any corporation with a paid up capital of not less than one hundred thousand dollars, incorporated under the laws of this state for the purpose of making, guarantying or becoming a surety upon bonds or undertakings required or authorized by law, may become and shall be accepted as security or as sole and sufficient security upon such undertaking or bond, and such corporate surety shall be subject to all liabilities and entitled to all the rights of natural persons as such sureties; provided: that whenever the liabilities of any such corporation shall exceed its assets the state auditor shall require the deficiency to be paid up in sixty days, and if it is not so paid up then he shall issue a certificate, showing the extent of such deficiency, and he shall publish the same once a week for three weeks in a daily paper published in the town or city wherein the principal office of such corporation is, and until such deficiency is paid up such company shall not be accepted on any bond; in estimating the condition of any such company, the state auditor shall allow as assets only such as are allowed under existing laws at the time, and shall charge as liabilities in addition to eighty per cent of the capital stock all outstanding indebtedness of the company, and the premium reserved equal to fifty per centum of the premiums charged by said company on all risks then in force.

“Sec. 1901. In all cases where an undertaking or bond is authorized or required by any law of this state, the officer taking the same must, except in the case of such corporation as is mentioned in the next preceding section, require the sureties to accompany it with an affidavit that they are each responsible and householders or freeholders within the state and are each worth the sum specified in the undertaking or bond over and above all their just debts and liabilities, exclusive of property exempt from execution. But when the amount specified in the undertaking or bond exceeds three thousand dollars, and there are more than two sureties thereon, they may state in their affidavits that they are severally worth amounts less than the amount specified in the undertaking or bond, if the whole amount be equivalent to that of two sufficient sureties. Any corporation such as is mentioned in the next preceding section may become one of such sureties. No such corporation shall be accepted in any case as a surety whenever its liability exceeds its assets, as ascertained in the manner provided in the preceding section. ’ ’

The first ground of the motion is that Sections 1 and 2 of the Act of March 9, 1893, being Sections 1900 and 1901, quoted, are repugnant to the part of Section 26 of Article Y of the Constitution of Montana, which ordains that “the legislative assembly shall not pass local or special laws in any of the following enumerated cases, that is to say: * * * Regulating the practice in courts of justice. ” Although counsel for the respondent, in his reply brief, asserts that he does not urge the invalidity of the act upon the ground' that it is a special law granting to a corporation a special or exclusive privilege in contravention of the constitutional prohibition contained in Section 26 against such a law, yet much of his argument has been devoted to the maintenance of the position that the act in question is unconstitutional, because it confers such special privilege upon certain corporations, to the exclusion of a similar privilege to other corporations and persons; and it may be observed that this seems to be the most important objection made to the validity of the act, — in short, the position which he assumes in the argument is that the act is void because it is a special law regulating the practice in courts of justice, and because it is a special law granting to corporations falling within the class to which the Union Bank & Trust Company belongs special and exclusive privileges.

The Act of March 9, 1893, is.obnoxious' to neither of the objections urged- against its constitutionality. .It is a general law regulating, among other things, certain matters of practice in all courts in the state; its provisions are applicable to, and may be taken advantage of by, all persons who give bonds or undertakings, or in whose behalf bonds or undertakings are given in actions or legal proceedings, or wherever a bond or undertaking with sureties is authorized or required by any law of the state. Every corporation of the class mentioned in the act possesses the same privilege or right to become the sole surety,' and this without the affidavit required of natural persons.' True, it operates upon a class of corporations, and not generally upon all corporations and persons, but a substantial reason exists for the discrimination. As to the discrimination between corporations organized for the purpose of becoming sureties, and other corporations, it is obvious that all corporations may not be granted the same privileges and powers, because of the diverse purposes for which they are created. The fact that one corporation is clothed with the power of exercising certain privileges while the same power is not granted to others furnishes no ground for objection that the law is violative of the Constitution in that it is a special statute granting a special privilege. With respect -to the discrimination between a class of corporations and natural persons, the objection to the act, as was said in In re Clark's Estate (Pa. Sup., not yet officially reported), 46 Atl. 127, overlooks the fundamental distinction between corporations and natural persons. “All corporate franchises are special and exclusive privileges or immunities, discriminative against individuals. The act of incorporation itself is a discrimination as to privileges, powers and liabilities against the natural person. * * * The objection is chiefly based on the assumption that the suretyship of a corporation and that of an individual are identical, and that the act, therefore; makes a discrimination between equally qualified sureties for the same service. ’ ’ This is the precise contention here urged. ‘But this assumption is not sustained by the facts, and overlooks the material distinctions between the qualities of the security afforded. These distinctions are obvious.” The Supreme Court of Pennsylvania then points out that the individual surety, however honest and well qualified at the time he became surety, is liable to the contingencies of business, the change of value in property, and the inexorable chance of death, which brings his estate into the administration of the law under wholly changed circumstances, and says that: “On the happening of any of these contingencies, the only person in position to keep close watch is the principal, and his interest is adverse to making known any doubt as to the sufficiency of his friend, or to assuming the burden of finding a new surety; * * * while the surety company must have a capital, the amount, nature of investment and management of which are known and within constant sight of the court and the parties interested. ’ ’ Similar reasons justified the legislative assembly in discriminating by the Act of March 9, 1893, between the corporations therein referred to and individual persons, permitting the corporations to become sole sureties without affidavit of qualification, while individual sureties must be at least two in number, and are required to accompany the bond or undertaking - with an affidavit showing their qualifications. These corporations are at all times subject to the visitorial powers of the state auditor and the legislative assembly, and must make regular reports showing in detail their liabilities, their assets and their investments. Severe penalties are denounced against the officers and clerks who shall willfully make false oaths touching the financial condition of their corporations. These and other reasons which are apparent suffice to show the constitutional basis for the legislative discretion. The act is neither a special law regulating the practice in courts of justice ( Cramer v. Tittle, 72 Cal. 12, 12 Pac. 869), nor a special law granting to a corporation a special or exclusive privilege (In re Clark’s Estate, supra).

Some argument has been expended upon the latter part of Section 1900, providing that the state auditor, in estimating the condition of a surety company, shall include in the liabilities ‘ the premium reserved equal to fifty per centum of the premiums charged by said company on all risks then in force. ’ ’ This provision seems to have been taken from the statutes of New York (Earle v. Earle, 49 N. Y. Super. Ct. 57), whence California also adopted it. Inquiry into its meaning is not necessary upon the present motion; had the provision been wholly omitted, the act would nevertheless be valid as against the objections thus far urged.

The next objection to the Act of March 9, 1893, is that it is an amendment of Section 540 of the First Division of the Compiled Statutes of 1887, and no intimation of such purpose is given in the title, nor is the section or its contents referred to in the body of the act, and that, therefore, it is violative of Section 25 of Article Y of the Constitution of Montana, ordaining that no law shall be revised or amended, or the provisions thereof extended, ££by reference to its title only, but so much thereof as is revised, amended or extended shall be re-enacted and published at length. . At the time the act was passed Section 540 of the First Division of the Compiled Statutes of 1887 was in force. Its provisions were substantially carried into the Code of 1895, where they appear as Section 1899, cited supra. The act of 1893 was, by Section 5186 of the Political Code, — being an act approved March 13, 1895,- — declared to be in force. It is unnecessary to inquire whether, under Sections 5181 to 5185, inclusive, of the Political Code, the Act of 1893 was re-enacted, — suffice it to say that the constitutional inhibition against revision or amendment of a law by reference to its title only has no application to amendments by implication. The Act of 1893 does not purport to be an amendment to or a revision of Section 540, sufra; it is an additional and independent piece of legislation, which impliedly amended, and hence repealed, so much of Section 540 as is in conflict with it, leaving Section 540 otherwise operative. The object sought to be attained by the prohibition of the Constitution against amendments by reference to the title only of the act to be amended was to remedy a well-known evil. Many statutes were amended by merely striking out or adding words or phrases, the amendatory statute giving-no intimation of the language of the statute so amended. To obviate the confusion and uncertainty consequent upon that mode of amendment, Section 25 of Article Y of the Constitution requires that the statute as amended shall be re-enacted and published at length, neither the letter nor the spirit of which is applicable to the act of 1893.

The respondent contends that neither the statutes nor the articles of association of the Union Bank & Trust Company authorize it to become a surety on an undertaking on appeal; and, if this contention be sustained, the appeals must be dismissed for want of jurisdiction. It is conceded that a statute granting powers, privileges or franchises to a private corporation must, if ambiguous or uncertain in its terms, be construed as against the grantee and in favor of the general public; but, m our opinion, the grant to the Union Bank & Trust Company is not ambiguous nor uncertain with reference to the power to execute undertakings on appeal. Section 1900, supra, provides that companies incorporated under the laws o Montana for the purpose of becoming sureties upon bonds or undertakings required or authorized by law may become and shall be accepted as security, or as sole and sufficient security, upon such undertakings or bonds, and shall thereupon be subject to all liabilities and entitled to all the rights of natural persons as such sureties. By Subdivision 3 of Section 604 of Chapter I, supra, under which chapter the corporation was organized, power is given to execute any bond or bonds required by law to be given in any proceeding in law or equity in any of the courts of this state, or other state, or of the United States; and the articles of association declare this to be one of the purposes for which the company was organized. By Subdivision 10 the power to become surety for a compensation is granted, and the articles of association declare this also to be one of the purposes. We deem it unnecessary to decide whether the Union Bank & Trust Company has authority, under the terms of Subdivision 10, to execute an undertaking on appeal, for we believe that power is granted by Subdivision 3. There, is, it is true, a distinction in some respects between a statutory bond and a statutory undertaking, as was decided in Pierse v. Miles, 5 Mont. 549, 6 Pac. 347, and in Ney v. Orr, 2 Mont. 559, consisting chiefly in the requirement that the principal must be a party to the former, while the person in whose behalf the latter is executed need not be a party to it. An undertaking need not be signed by the person in whose behalf it is executed, or by the person for whose act or default the sureties promise to be answerable. There may possibly be some undertakings which the Union Bank & Trust Company has no power to execute under the grant contained in Subdivision 3 of Section 604, supra, but an undertaking to effectuate an appeal is not one of them. The undertaking was given in behalf of the appellants, upon whom the law imposes the obligation of doing that which the sureties promise in the undertaking that the appellants shall do; and they are' liable for a breach of the obligation thus imposed by law to- the same extent as if they had been named in and had executed the undertaking. An undertaking to secure an appeal to the supreme court is technically a bond within the common-law definition, save that it is not under seal; there is however, no difference in this state between sealed and unsealed private writings. It is not necessary at the common law that an instrument, to be a bond, must be executed by the person for whose default the obligors bind themselves to respond in damages, when he is not named as a party; nor is it essential that there be both principal and sureties. Under our statutes an undertaking on appeal is a species of bond, and the two words are by judges, text writers, lawyers, and laymen comfnonly used interchangeably. The legislative assembly, in providing that corporations of the class to which the Union Bank & Trust Company belongs may execute any bond or bonds required by law to be given in any proceedings in any court, intended not only to confer the power to execute bonds made by both principals and sureties, but also to clothe such corporations with power to execute that species of bonds which the statutes designate as “undertakings.” No reason has been suggested, nor do we think any reason exists, why the power should be given in the one case and withheld in the other, and certainly there is nothing in the statute indicating the design to withhold authority to execute undertakings which are included within the definition of the generic word “bonds.” The statutory undertaking is, as we have said, a species of statutory bond,— an undertaking, but none the less a bond. The two terms are used in the statutes to describe succinctly and conveniently the different forms of the same instrument, “bond” to describe the one, and “undertaking” to describe the other kind of bond. In Hurd v. Hannibal & St. Joseph Railroad Co., 67 How. Prac. 516, the guaranty of the Fidelity & Casualty Company of New York was accepted as bail upon an undertaking given on an appeal from the supreme "court to the court of appeals. The guaranty was accepted under the authority of a statute providing that a judge might accept a bond or undertaking whenever its conditions were guarantied by a company duly authorized to do business in New York, and guaranty the fidelity of persons holding positions of public or priyate trust, and which vested such corporation with full power to guaranty such bonds or undertakings. The act was objected to because its title was not broad enough to justify its enactment, the title being “An act to facilitate the giving of bonds required by law. ” The contention was that the title of the act made no specific reference to undertakings. Summary disposition of the objection was made, the court saying: “But, as ‘bonds’ and ‘undertakings’ are to a very great extent understood to be convertible terms, the title of the act was not materially deficient. ” In employing the expression “bonds or undertakings” in Section 1900, supra, the probable intent was to remove any doubt that might possibly arise had the word “bonds” only been used.

Section 4660 of the Civil Code and Section 3462 of the Code of Civil Procedure, which provide that ‘ ‘words and phrases are construed according to the context and the approved usage of the language; but technical words and phrases, and such others as may have acquired a peculiar and appropriate meaning in law, * * * are to be construed according to such peculiar and appropriate meaning,”- but declare the common-law canon of construction, and do not require that the species of bond called an undertaking must be held to be not a bond within the meaning of Subdivision 3, of Section 604:, supra. “Undertaking” on appeal, as contradistinguished from “bond” on appeal, is not such a technical word, nor has it, as so distinguished, such a peculiar and appropriate meaning in law as to demand a construction by which the use of the word ‘ ‘bonds’ ’ in Subdivision 3 excludes ‘ ‘undertakings. ’ ’

The final attack upon the undertaking is that the liabilities of the Union Bank & Trust Company exceed the assets, by reason of which it had no power or right to become a surety. Such a condition is not shown by the evidence which we are asked to consider. Again: at the time the undertaking was given the Union Bank & Trust Company was a competent and qualified surety. In the absence of the action required by Section 1900, supra, to be taken by the state auditor when the liabilities of the corporation shall exceed its assets, the fact that it may have been insolvent could not deprive it of the power to execute the undertaking on appeal. The failure of a surety to justify upon exceptions to his sufficiency, or even his insolvency, of itself furnishes no ground for the dismissal of the appeal. Section 1732 of the Code of Civil Procedure provides, in effect, that, unless the sureties justify when excepted to, execution of the judgment or order appealed from is no longer stayed; but this provision does not render the appeal ineffectual because of the failure to justify, but only destroys the effect of the undertaking in so far as it may operate as a supersedas, — the appeal remains though execution is no longer stayed. The question whether the corporation may be required to justify when its sufficiency as surety upon an undertaking to stay execution pending appeal is challenged does not arise in this case, and is reserved.

Another answer to the last reason urged in support of the motion is that a new undertaking on appeal in the same form as the original, except an immaterial variation in verbiage, executed by the same corporation as sole surety, has been approved by the Chief Justice of this Court and filed before the hearing of the motion to dismiss the appeal, all in accordance with the provisions of Section 1740 of the Code of Civil Procedure. The approval by the justice was a determination that the surety is financially good and sufficient. (Stevenson v. Steinberg, 32 Cal. 374.)

The motion is denied. Denied.

Mr. Justice Word, being absent, takes ño part in this decision. .


author: MR. CHIEF JUSTICE BRANTLY

text:
    CHARLES SCHATZLEIN PAINT CO., Appellant, v. GODIN et al., Respondents.
    [No. 1254.]
    [Submitted October 31, 1900.
    Decided November 26, 1900.]

      Appeals—Rules of the Supreme Court—Briefs—Specification of Errors.

    1. Where appellant’s brief does not comply with Supreme Court Rule 10, Subdivision '3, providing that the brief must contain a specification of the errors relied on, set out separately and particularly, and properly numbered, the judgment of the lower court will not be reviewed.
    2. A substantial compliance with the rules of the Supreme Court, touching appellants’ briefs is a condition precedent to a determination of an appeal upon the merits.

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

    Action by the Charles Schatzlein Paint Company against Henry Godin and others. From a judgment of nonsuit and an order overruling its motion for a new trial, plaintiff appeals.
    Affirmed.

      Mr. W. E. Carroll, for Appellant.

      Mr. J. L. Wines, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the Court.

Action to foreclose a mechanic’s lien. The trial was by the court without a jury, and resulted in a judgment of nonsuit. Plaintiff' has appealed from the judgment, and an order overruling its motion for a new trial.

The appeal cannot be considered, for the reason that appellant’s brief does not meet the requirements of Subdivision 3, of Rule X of this Court (22 Mont, xxxiv., 57 Pac. vii.) in that it contains no specification of errors relied upon, set out “separately and particularly,” and properly numbered. Indeed, counsel for appellant has made no attempt whatever to comply with the rule, but has left it to this Court to gather from a somewhat extended argument the questions which he desires to have considered. This task we must decline to undertake. The requirements of the rule are clear and explicit, and have been so often called to the attention of counsel during the past few months that it should not be necessary for us to state again that a substantial compliance with this, as well as the other rules of this Court, is a condition precedent to a determination of an appeal upon the merits. (Babcock v. Caldwell, 22 Mont. 460, 56 Pac. 1081, and cases cited; Missoula Mercantile Co. v. O'Donnell, 24 Mont. 65, 60 Pac. 594; Cole et al. v. Ryan, 24 Mont. 122, 60 Pac. 991.)

Let the judgment and order be affirmed.

Affirmed.

Mr. Justice Word, being absent, takes no part in this decision.


text:
    PARROT SILVER & COPPER CO., Respondent, v. HEINZE et al., Appellants.
    [No. 1569.]
    [Submitted October 4, 1900.
    Decided November 26, 1900.]

      Mines and Mining — Suit to Establish Title — Injunction Pendente Lite — Judicial Discretion — Appeal—Review.
    1. On a hearing to show cause why defendants should not be enjoined pendente Ute from working a certain vein of ore, there was substantial evidence to show that the vein belonged to plaintiff’s claim, though the statements of witnesses both as to matters of fact gained from actual observation of the workings of the claims and in matters of expert opinion based on these facts were in conflict. Held, that it was not an abuse of discretion to grant the injunction.
    2. Where errors are assigned in appellant’s brief touching the admissibility of certain evidence, the failure of counsel to point out in the argument wherein the rulings of tlie trial court upon said evidence resulted in any prejudice to appellant will relieve the appellate court from the necessity of examining such errors.

      Appeal from District Court, Silver Bow County, Henry C. Smith, Judge.

    Application for injunction by the Parrot Silver & Copper Company, a corporation, against A. P. Heinze and others. From an order granting the same, defendants appeal.
    Affirmed.

      Messrs. McLLatton db Cotter, for Appellants.

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

delivered the opinion of the Court.

This is an appeal from an order granting an injunction pendente lite. The plaintiff is the owner of the Little Mina lode claim, situate in the county of Silver Bow. This claim lies in a northwesterly and southeasterly direction. Immediately south of the easterly half of the claim lies the Nipper lode claim, which at the time this action was begun, was occupied and worked by defendant A. P. Heinze as lessee of defendant F. A Heinze, the owner. This latter claim lies nearly due east and west. As ground for the injunction plaintiff alleges that within the boundaries of the Little Mina claim are two veins, the apex of one of which, known as the ‘ ‘discovery vein,” extends throughout the entire length of the claim, while that of the other, or more southerly one, extends from the westerly end line of the claim approximately parallel with the south side line thereof to a point 205 feet west of the easterly end line of the claim, where it passes into the Nipper claim; that the part of this latter vein which is within the boundaries of the Little Mina claim’ in its downward course dips to the south, and so far departs from the perpendicular as to extend outside of the vertical plane of the southerly side line, and to enter the ground lying south of the little Mina claim; and that the defendants, by means of underground workings, have entered upon the portions of said vein west of the point at which it crosses the southerly side line of the Little Mina claim, and through these workings are engaged in mining, removing, and converting to their own use large quantities of ore which belong to the plaintiff.

The defendants deny that they are trespassing upon the vein, or any part of the vein, or any vein, which has its apex in the Little Mina claim, and allege that the vein upon which A. P. Heinze is engaged in mining has its apex in the Nipper claim.

At the hearing-evidence was submitted, both oral and written as to the identity of the vein in dispute with that having its apex within the boundaries of the Little Mina claim. The district court was of the opinion that this evidence was sufficient to warrant the issuance of the injunction as to A. P Heinze, his agents and employes. The question submitted to us is whether the court’s discretionary power was properly exercised.

After a careful examination of the record and the briefs of counsel, we have concluded that there was no abuse of discretion. -The transcript reveals a sharp conflict in the statements.of the witnesses, both as to matters of fact gained from actual observation of the workings in the properties and in matters of expert opinion based upon these facts. But, inasmuch as there was substantial evidence tending to establish the identity of the vein in the Nipper claim upon which the defendant A. P. Heinze was engaged in mining, with that owned by the plaintiff, we think it proper that the order should stand pending the final determination of the controversy. (Boyd v. Desrozier, 20 Mont. 444, 52 Pac. 53; Anaconda Copper Mining Co. v. Butte & Boston Mining Co. 17 Mont. 519, 43 Pac. 924; Heinze v. Boston & Montana Consol. Copper & Silver Mining Co. 20 Mont. 528, 52 Pac. 273.)

Several errors are assigned in appellants’ brief touching the admissibility of certain evidence. Counsel fail, however, to point out in the argument wherein the rulings made by the court upon this evidence resulted in any prejudice to the appellants. Under the circumstances we do not feel that it is incumbent upon us to examine them.

Let the order be affirmed.

Affirmed.

Mr. Justice Word, being absent, takes no part in this decision.


author: MR. JUSTICE PIGOTT MR. JUSTICE PIGOTT

text:
    REHBERG, Respondent v. GREISER, Appellant.
    [No. 1255.]
    [Submitted November l, 1900.
    Decided November 26, 1900.]

      Appeal — Rules of the Supreme Court — Briefs—Specification of Errors.

    Where appellant’s brief does not contain a specification of the errors relied on, numbered and set out separately and particularly, as provided by Sup. Ct. Rule 10, See. 3, Subd. “b” the judgment of the lower court will be affirmed.

      ON MOTION EOR REHEARING.
    1. The rules of the Supreme Court demaDd that any error intended to be urged by appellant must be particularly specified, and all the errors specified must be grouped together and must constitute a division of appellant’s brief separate and distinct from the statement of the case and from the argument, and without such proper specification the appellant is in no position to demand that any supposed error be considered by the appellate court.
    2. The distinctions which the statutes draw, and the cases recognize between “exceptions” to verdicts or decisions on the ground of the insufficiency of the evidence to justify the same, and to errors in law occurring at the trial, pertain to the procedure in the district courts uponmotions for new trials and in no wise aftect the rule of the supreme court requiring the errors relied upon in the latter court to be specified in appellant’s brief.
    3. The fact, that failure to comply with the requirements of its rules has been occasionally overlooked or disregarded by the supreme court, furnishes no reason why the practice should be continued.
    4. The supreme court has inherent power to affirm or dismiss orders or judgments appealed from when not presented in substantial compliance with its rules.

      Appeal from District Court, Lewis and Cla/rhe County; Henry C. Smith, Judge.

    Action by Edward Rehberg against Gus Greiser. Eroin a judgment for plaintiff, and from an order denying defendant’s motion for a new trial, defendant appeals.
    Affirmed

      Messrs. Shober efi Rasch, for Appellant.

      Mr. T. J. Walsh, for Respondent.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

The plaintiff brought this action to recover a judgment against the defendant for damages, and for an injunction perpetually restraining him from preventing the one-half of the water flowing through a certain ditch from passing into the ditch of plaintiff. A trial was had by the court sitting with a jury. From the judgment, and from an order denying his motion for a new trial, the defendant has appealed.

After hearing the oral arguments of counsel, we were clearly of the opinion that the judgment and order refusing a new trial were correct, and that they should be affirmed upon the merits; but we find upon examination of the brief filed in behalf of the appellant that it wholly fails to comply with Subdivision “b” of Section 3 of Rule X of the Rules of this Court, in that it does not contain such a specification of errors as is thereby required. There is no attempt to make the brief conformable to the subdivision, which requires that the appellant’s brief “shall contain, in the order here stated: * * (b) A specification of errors relied upon, which shall be numdered and shall set out separately and particularly each error intended to be urged. * * * ” Under the now settled and uniform practice of this court, the only disposition which we can make of the appeals is to affirm the judgment and order without discussion of the merits; which is accordingly done. (Charles Schatzlein Paint Co. v. Godin, this day decided, ante p. 483, 62 Pac. 819, and the authorities therein cited.)

[Submitted December 15, 1900. Decided December 17, 1900.]

Affirmed

Mr. Justice Word, being absent, takes no part in this decision.

ON MOTION FOR REHEARING.

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Since the opinion in this case was handed down the death of the appellant has been suggested, and the executrix of his will has been substituted as the appellant. The executrix appears and moves for a rehearing upon the ground that in the opinion (24 Mont. 62 Pac. Rep. 820) we applied to the brief of the appellant a rule which was not published until long after the brief was deposited in the office of the clerk. The copies of the brief before us bore no filing marks and we assumed that it had been filed after the adoption of the present rules. It is true that the rule quoted in the former opinion differs somewhat from the rule in existence at the time the brief was filed. Section 3 of Rule Y, which went into effect January 1, 1896, provides that the brief shall contain “in the order here stated: 1. A concise abstract or statement of the case, presenting succinctly, the questions involved, and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, orders and judgment may be easily found. 2. A specification of errors relied upon which shall set out separately and particularly each error asserted and intended to be 'Urged. * ” In the motion for a rehearing counsel for the appellant say that a reversal of the judgment and order denying a new trial was asked for because of the insufficiency of the evidence to sustain the findings of the court, and because the decision is against law. The abstract or statement, of the case contained in the brief recites that the action is for a permanent injunction against the defendant, enjoining him from diverting waters of the Prickly Pear creek, to which the plaintiff and defendant claim to be entitled, from a certain ditch tapping the creek, jointly constructed and owned by the parties. After reciting the contents of the pleadings, it proceeds:

“A jury trial was had, and nineteen special findings were returned. (Tr. pp. 139 — 142.) The court reserved its decision on said findings, and thereafter set aside certain of the findings returned by the jury, substituted in their places findings of its own, and rendered a judgment and decree in favor of plaintiff and respondent. (Tr. pp. 142-144.) Thereafter defendant Greiser moved for a new trial. The motion was by the court overruled. The defendant appeals from said judgment and decree and the order of the court overruling defendant’s motion for a new trial. ’ ’

This statement or abstract of the case, at least in so far as the question whether the evidence justified the finding is involved, does not conform to the requirements of the rule. It does not appear from .the statement, or from any reference therein made, what the evidence was or what it proved or tended to proved. There is not a suggestion with respect to evidence, nor that any was received. Immediately following the so-called “Statement of the Case” is the argument. Neither in its proper place nor elsewhere in the brief is there set out in accordance with the command of the rule a specification of errors relied upon. Here and there in the argument may be gleaned the reasons urged for reversal; but the rule requires that the errors" specified must be grouped together and must constitute a division of the brief separate and distinct from the abstract and from the argument. In the respect just mentioned the brief violates the rule as seriously as did the one condemned in Babcock v. Caldwell, 22 Mont. 460. In that case it was said that the specification of errors required by the rule is designed to serve the purpose which an assignment of errors accomplished at the common law; this was perhaps not entirely accurate. The assignment is the pleading filed by the plaintiff in error in the court to which the cause has been transferred by the writ of error, and is jurisdictional; its function in the higher court may be likened to the function of the declaration in the lower court, and the joinder-in-error, which makes the issue, is akin to a plea in general denial. The assignment performs the further office of calling attention to the errors relied on. The specification required by the rule of this Court may not be indispensable to jurisdiction; it is, however, essential for the purpose of pointing out with particularity the errors relied upon for reversal, and hence it performs the second office at least of the common law assignment. For convenience and as an aid to the Court in the consideration and determination of appeals-the rule requires that the errors relied upon shall be specified and grouped together after the statement of the case.

Counsel assert that the rule requires only a specification of the errors in law relied upon, and does not require a specification of the insufficiency of the evidence to justify a finding or other decision of the court, nor that the decision is against law. Their position is, that when the only points relied upon for reversal are that the evidence was insufficient and the decision was against law, the rule does not contemplate a specification of errors. To support the position they instance, Section 1171 of the Code of Civil Procedure, which among other grounds for a new trial enumerates the following: (1) Insufficiency of the evidence to justify the verdict or other decision; (2) that the decision is against law; (3) errors in law occurring at the trial and excepted to. They invoke also Section 1173 of the same Code, which provides that when the notice of motion for a new trial ‘designates as the ground of the motion the insufficiency of the evidence to justify the verdict or other decision, the statement shall specify the particulars in which such evidence is alleged to be insufficient. When the notice designates as the ground of the motion errors in law, occurring at the trial and excepted to by the moving party, the statement shall specify the particular errors upon which the party will rely. ’ ’ They cite also Bardwell et al. v. Anderson et al., 18 Mont. 528, where it was held that specifications of error in law in a new-trial statement are not to be confounded with specifications therein of the insufficiency of the evidence, and that insufficiency of the evidence to justify a particular finding of fact may not be presented by means of a specification of errors in law. These distinctions which the statutes draw and the cases recognize pertain to the procedure in the district courts upon motions for new trials and in nowise affect the rule of the Supreme Court requiring the errors relied upon in the latter court to be specified in the briefs. This Court, when exercising its appellate jurisdiction, is a court for the correction of errors committed in or by the court or. judge a quo. Whether a “decision against law” includes anything but a verdict or special finding of a jury returned contrary to the law as declared in the charge of the court, we do not pause to inquire, for the appellant uses the term as meaning that the findings do not sustain the judgment and that the judgment is therefore erroneous. Such supposed error, to be considered here, must be specified in the brief; it is plainly an error of law. The denial of a proper motion to vacate a finding, verdict or decision which was not supported by any evidence is also manifestly an error of law. What the 'evidence tends to prove is a question of law, and hence a finding by a court of a fact which is not supported by any evidence whatever is equivalent to a decision or .ruling that there was some evidence tending to prove what is found when in truth there was none, and this also presents a question of law which, when the finding is excepted to, becomes a proper subject for review on writ of error at the common law and on appeal under the Code of Civil Procedure of Montana. (The “FranaisWright,” 105 U. S. 381; The "E. A. Packer” 140 U. S. 360; Alexandre v. Machan, 147 U. S. 72, 13 S. C. Rep. 211; Bedlow v. New York Floating Dry Dock Co., 112 N. Y. 263; Fernald v. Bush, 131 Mass. 591; and see Styles v. Tyler, 64 Conn. 432.) The three errors referred to are unquestionably errors of law and must be specified; and so must any other error relied upon. What evidence in substantial conflict proves — that is to say, what inference of ultimate fact is to be deduced from disputed evidentiary or probative facts — is a question of fact the final determination of which is confided to the trial court or jury whose decision cannot be overturned by this Court upon the ground that the evidence preponderated against the finding or verdict; but in cases where the desision is so clearly against the weight of the evidence as to require the inference that it was made under the influence of passion, prejudice, bias or corruption, this Court will set aside the decision as error and remand the cause for a new trial; and whether such decision be deemed an error in law or an erroneous inference of fact is immaterial in respect of the necessity for specifying the error in the brief as a condition precedent to its consideration by this Court. Each error asserted and intended to be urged must be particularized as the rule requires. If an error in matter of fact can be reviewed by this Court, it must be specified; if it cannot be reviewed by this Court, then it is not the subject of a specification. The rule demands that the error intended to be urged must be particularly specified, and without the proper specification the appellant is in no position to demand that any supposed error be considered.

It is also said by counsel that this Court has hitherto decided some cases on the merits where the briefs were in the

condition of the one filed by the appellant. If this be true it certainly does not follow that the Supreme Court must or ¡should abrogate the rule for the benefit of the appellant in this case. That a failure to comply with the requirements of the rule has been occasionally overlooked or disregarded furnishes no reason why the practice should be continued. The appellant’ s brief has been on file for more than two years, and during that period this Court has affirmed many judgments and •orders for the reason that the briefs did not meet the demands ■of the rule, and an ample opportunity has been afforded him to apply for leave to file a new brief or for leave to amend,— indeed, at the time the cause was argued and submitted the ■defects were adverted to, — but no effort was made to supply them.

We are told that the only penalty prescribed by Rule Y of tne rules of 1896 is that if the brief does not conform therewith it shall be returned by the clerk without filing. Such penalty is not the only one, for inherent power to affirm or dismiss orders, and judgments appealed from when not presented in substantial compliance with its rules, resides in this 'Court.

The motion for a re-hearing is denied.

Denied.


author: MR. JUSTICE PIGÓTT

text:
    STATE ex rel. KING et el., Plaintiffs, v. SECOND JUDICIAL DISTRICT COURT et al., Defendants.
    [No. 1536]
    [Submitted June 21, 1900.
    Decided November 26, 1900.]

      •Certiorari — Jurisdiction—Statutory Construction — Adequate Remedy — Appeal.
    l. Certiorari cannot be used lor the purpose ot correcting errors committed in the exercise of jurisdiction.
    :2. Where the court had jurisdiction of the subject-matter and of the parties, its action in refusing an injunction and dismissing the action cannot be reviewed by certiorari,
      since tlie remedy can only be emp'oyed to determine whether a tribunal has exceeded its authority. o
    3. Under Code of Civil Procedure, Section 1941, if there is either an appeal, or a plain, speedy and adequate remedy, certiorari does not lie.

      Obiter: Under Code of Civil Procedure, Sections 1962,1981, mandamus and prohibition, respectively, may be granted when neither appeal nor other proceeding in the ordinary course of law affords a plain, speedy and adequate remedy.

      Certiorari by the state, on the relation of Silas F. King and others, to the district court of the Second judicial district and the judges thereof.
    Writ dismissed.

      Messrs. McBride <& McBride, and Mr. E. N. Lfanoood, for Plaintiffs.
    The action of the court was erroneous and in excess of the jurisdiction of the court. (Code of Civil Procedure, Sections 680, 685, 690, 691, 1004, First Ency. PI. & Pr. p. 775, Note 5; Wolsworth v. Johnson, 41 Cal. 61 and 63; Calaveras Co. v. Brochway, 30 Cal. 325; Colliery. Ervin, 3 Mont. 142; Ana. Min. Co. v. B. & B. M. Co. 43 Pac. 924-925, S. C. 17 Mont. 519; Baudry v. Fitch, 47 Cal. 186; Godey v. Godey, 39 Cal. 137; National Bank y. Printep, 63 Ga. 570.) Jurisdiction is the power to hear and determine and to render the particular judgment in the particular case. (12th Enc. of Law, 247; Windsor v. McVeigh, 93 IT. S. 274, 282, 283; Ex parte Lange, 18 Wall. 163; Ex parte Paige, 49 Mo. 290; State ex parte Flynn v. District Court, 60 Pac. 493.)

      Certiorari is the proper remedy. (Code of Civil Procedure, Sections 1940, 1941. State v. Evans, 13 Mont. 239-245; State ex rel. Ind. Pub. Co. v. Smith, 58 Pac. 867-868; State ex rel. Beins v. Judge of Carbon County, 57 Pac. 89-91; State ex rel. Bartlett, v. District Court, 18 Mont. 481; State ex rel. Simpsony. Votau, 18 Mont. 279; People ex rel. Fieldy. Turner, I Cal. 156; M. (&. C. R. Co. v. Brannum, 96 Ala. 461; S. C. II So. Rep. 468. Ency. of PI. & Pr. Yol. 4, page 9. Citing Court v. Marion Machine Works, 24 W. Va. 517; Beasley v. Beckley, 28 W. Ya. 81. Code of Civ. Proc. Part III, Title I, page 447; 14 Mont. 527, 48 Pac. 470; Levy v. Superior Court, 66 Cal. 293; State ex rel. B. & M. Co. v. Second Judicial

      District Court, 22 Mont. 233-236) “Spelling on Extraordinary Relief” (Section 1730) refers to the Cal. decisions in Ilavemeyer v. Superior Court, 84 Cal. 327, 24 Pac. 121, and Bruner v. Superior Court, 28 Pac. 341, as establishing a doctrine that the adequacy of the remedy by appeal in any given case is an open question. The reasoning in State ex rel. B. dh M. Co. v. District Court, above cited, is in line with the cases cited by relators on page 21 of their original brief. (State v. Evans, 13 Mont. 239-245; State ex rel. Heins v. Judge of Carbon County, 57 Pac. 89-91; State ex rel. Bartlett v. District Court, 18 Mont. 481; State ex rel. Simpson v. Yotau, 18 Mont. 279; People ex rel. Field y. Turner, 1 Cal. 156; M c& C. H. Co. v. Brannum, 96 Ala. 461, S. C. 11 So. Rep. 468.

      Mr. C. P. Drennen, and Messrs. McHatton <& Cotter, for Defendants.
   MR. JUSTICE PIGÓTT

delivered the opinion of the Court.

By the writ of certiorari the plaintiffs seek the judgment of this Court annulling orders of the district court of the county of Silver Bow dissolving a restraining order, dismissing an order to show cause why an injunction pendente lite should not issue, and refusing to issue such injunction, and dismissing the action without prejudice. These orders were made on the 14th day of March, 1900, in the case of King et al. against Maloney et al. then pending in the district court, and numbered 8,418. The complaint in the action was filed on the 15th day of February, 1900. With the summons an order temporarily restraining the defendants from committing certain alleged wrongs was issued, and also an order to show cause why an injunction pending the suit should not be granted. On the 19th day of February, 1900, the defendants therein filed in the district court a motion to set that order aside, to vacate the restraining order, and to enter an order refusing to grant the injunction prayed for, upon the grounds, among others, that there was another action, numbered 8,059, pending in the same court, between the same parties, with reference to the same subject matter; and that in an action numbered 8,213 the plaintiffs had been adjudged not to be entitled, as against the defendants, to an injunction with respect to the subject-matter of action No. 8418. The defendants had been ordered to show cause on February 21st why a temporary injunction should not be issued against them, and upon that day the court received evidence, both written and oral, in support of and against the defendants’ motion, but refused to hear evidence in respect of the allegations contained in the complaint. On the 14th day of March, 1900, the court ordered that the restraining order be dissolved, that the order to show cause be dismissed, denied the prayer for an inj unction pendente lite, and dismissed the action without prejudice. In making these orders the court declared that it declined to entertain jurisdiction of the action, the learned judge assigning as the reason therefor that, under the evidence taken, the matters stated in the action should have been presented in action No. 8,059, or in action No. 8,213 which had been brought in the other department, presided over by another judge. These are the orders which the plaintiffs ask to have annulled on certiorari.

Counsel for the plaintiffs contend that in making the orders the district court exceeded its jurisdiction, and that the remedy by appeal is neither speedy nor adequate.

Under the Constitution and Statutes' of Montana, the district court has jurisdiction of the class of actions to which belongs the one wherein the orders assailed were made, — it has jurisdiction of all actions of that kind. It had jurisdiction of the action, — that is to say, it possessed the power to hear and determine (or, it should seem, to hear without deciding, orto decide without a hearing) all questions presented in the cause, —and to make such orders and render such judgments therein as the law authorizes in the class of actions to which King et al. against Maloney el al. belongs; and this power necessarily included the power to decide wrongly as well as rightly, and to make an erroneous order or render an erroneous judgment as well as a correct one. It had jurisdiction of the subjeclmatter of the action and of the parties thereto. Now, the writ of certiorari may be granted only when there has been an excess of jurisdiction, and the review upon the writ cannot extend further than to determine whether the tribunal, board or officer exercising judicial functions has regularly pursued its or his authority. The review must be confined to the inquiry whether the tribunal, board or officer has acted without jurisdiction. Such is the rule of the common law, the declaration of the statute and the doctrine of this Court. (State ex rel. Baker v. Second Judicial Dist. Court, 24 Mont. 330, 61 Pac. 309; State ex rel. Buck v. Board of Com’rs of Ravalli Co., 21 Mont. 469, 64 Pac. 939; State ex rel. B. & M. C. C. & S. Min. Co. v. Second Judicial Dist. Court, 22 Mont. 241, 56 Pac. 281; State ex rel. Murphy v. Judge of Second Judicial Dist. Court, 10 Mont. 401, 25 Pac. 1053; State ex rel. Beall v. Ellis, 15 Mont. 224, 38 Pac. 1079.)

The district court, in an action pending before it of which it had jurisdiction, dissolved a temporary restraining order, dismissed an order to show cause why an injunction pendente lite, should not issue, refused to issue an injunction, and dismissed the action without prejudice. Each order was one which the court had authority to make, notwithstanding it may have been erroneous. It is manifest that the determination of the court with reference to the restraining order, the injunction order and the order to show cause was within the limits of its jurisdiction; and it is equally clear that in making the order dismissing the action the court did not exceed its jurisdiction. (Buckley v. Superior Court, 96 Cal. 119, 31 Pac. 8.) The question is not whether the orders were erroneous; the sole question is whether the court had jurisdiction to make them. Certiorari cannot be used for the purpose of correcting errors committed in the exercise of jurisdiction. Nothing in State ex rel. Allen v. Napton, 24 Mont. 450, 62 Pac. 686, is in conflict with the views here expressed.

Holding, as we do, that the court regularly pursued its authority in making the orders complained of, the question whether ihere is an appeal, or any plain, speedy and adequate remedy, does not arise. For convenience of reference, however, we cite, without comment, the following cases as bearing upon the appealable character of the orders dissolving the temporary restraining order and dismissing the action: Dahler v. Steele, 1 Mont. 206; Murphy v. King et al., 6 Mont. 30, 9 Pac. 585; Holter Lumber Co. v. Fireman's Fund Ins. Co., 18 Mont. 282, 45 Pac. 207; Bennett Bros. Co. v. Congdon et al., 20 Mont. 208, 50 Pac. 556; and for like reference we have collated some of the many cases which hold that, where there is an appeal from the order or judgment, the writ does not lie: Hayes v. First Judicial Dist. Court, 11 Mont. 225, 28 Pac. 259; In re Finkelstein, 13 Mont. 425, 34 Pac. 847; State ex rel. Nixon v. Second Judicial Dist. Court, 14 Mont. 396, 40 Pac. 66; In re Ming, 15 Mont. 87, 38 Pac. 228; State ex rel. Shing v. Lenahan, 17 Mont. 518, 43 Pac. 712; Southern California Ry. Co. v. Superior Court of San Diego Co., 127 Cal. 417, 59 Pac. 789. In State ex rel. Johnson v. Case, 14 Mont. 520, 37 Pac. 95, in State ex rel. Bartlett v. Second Judicial Dist. Court, 18 Mont. 481 — 486, 46 Pac. 259, and in State ex rel. Reins v. Sixth Judicial Dist. Court, 22 Mont. 449, 57 Pac. 89, 145, this Court decided expressly in the first two cases, and impliedly in the last case, that the writ may properly be granted to annul acts in excess of jurisdiction, even where an appeal lies, if the remedy by appeal be not speedy and adequate. These decisions seem to contravene the law as prescribed by Section 1941 of the Code of Civil procedure, by the terms whereof three things are indispensable requisites to the granting of the writ: (1) Excess of jurisdiction; (2) absence of the right to appeal from the act, order or judgment assailed as done or made without jurisdiction; (3) lack of a plain, speedy and adequate remedy other than eertiorari. These must co-exist. If there is either an appeal, or a plain, speedy and adequate remedy, certiorari does not lie; if the order or judgment is not appealable, but there is any plain, speedy, and adequate remedy other than certiorari, the writ does not lie; the remedy by appeal need not be speedy or, adequate. In the three cases last cited this court seems to have understood the provision of Section 1941 that the writ “may be granted * * * when * * * there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy,” as meaning that the remedy by appeal must be speedy and adequate. But there is no such limitation or qualification. The misapprehension was doubtless caused by confusing the provisions of Sections 1962 and 1981 of the Code of Civil Procedure touching mandamus and prohibition, respectively, with the provision of Section 1941, quoted. These Sections prescribe that the writ of mandamus must, and the writ of prohibition may, be issued in all cases where there is not a plain, speedy and adequate remedy in the ordinary course of law,” omitting specific reference to appeal; under these sections the writs therein named may be granted when neither appeal nor other proceeding in the ordinary course of law affords a plain, speedy, and adequate remedy. This is a digression; but since the point discussed was argued by counsel, we deem it not improper to state our views, to the end that Section 1941, supra, may be correctly interpreted, and the erroneous interpretation announced or followed in the three cases last cited disapproved. This opinion is not to be understood as questioning the conclusions reached upon the merits in these cases, nor in State ex rel. Kenyon, v. Laurandeau, 21 Mont. 216, 53 Pac. 536. The decisions are overruled only in so far as they hold that the writ of certiorari lies when there is an appeal, but no plain, speedy, and adequate remedy.

On the hearing the defendants moved that the writ be quashed, and the proceeding dismissed, for the reason that the affidavit does not state facts sufficient to warrant the granting of the writ. The motion and the cause were submitted and taken under advisement at the same time. The motion to quash must be sustained, and the proceeding dismissed, at the cost of the plaintiffs. Judgment will be entered accordingly.

Dismissed.

Mr. Justice Word, being absent, takes no part in this decision.