author: ME. JUSTICE MILBUEN

text:
    COOK et al., Respondents, v. GALLATIN RAILROAD COMPANY et al., Appellants; WALTZ et al., Interveners.
    (No. 1,556.)
    (Submitted April 30, 1903.
    Decided June 6, 1903.)

      Mechanics’ Liens — Foreclosure — Amended Complaint — Refusal to Permit Demurrer — Fngineer’s Estimate — Impeachment — Admissibility of Evidence — Instructions m Chancery Case — Review of Error — Intervention — Notice of Lien— Owner’s Name — Claim for Money — Rules of Supreme Court —Briefs—Assignments of Error.

    1. The refusal to permit defendants to demur to a complaint amended after the jury is sworn is not ground for reversal, where no ground for the demurrer was stated, nor any written demurrer offered, and the complaint seems to have stated a cause of action.

      2: Though, in a mechanic’s lien foreclosure, plaintiffs declare on a contract under which a settlement was to be had on a final estimate of defendants’ superintendent of construction, and defendants deny that plaintiffs have complied with the contract, yet, where both parties on the trial seek to impeach the superintendent’s estimate, the defendants cannot complain that the admission of plaintiffs’ evidence of its inaccuracy, was error.
    3. where defendants in a mechanic’s lien foreclosure themselves seek to impeach their superintendent’s estimate of the work, the admission of hearsay evidence of his statements that his estimate was erroneous is ■harmless error.
    4. In a mechanic’s lien foreclosure, a witness’ testimony that a certain person made calculations as to the amount of work done, and dictated them to him, is insufficient to warrant the introduction of such estimates.
    5. Since a suit to foreclose a mechanic’s lien is a proceeding in chancery, the jury’s findings are only advisory, and error in instructing them is not reviewable.
    6 under Code ol Civil Procedure, Section 2131, requiring notice of a mechanic’s lien to be filed in the county clerk’s office, and Section 2132, requiring that the clerk’s abstract shall contain the name of the person against whose property the lien is filed, the filing of notice of a lien upon the property of the Yellowstone Park Railway Company and the Yellowstone Park Railroad Company will not warrant intervention in a mechanic’s lien foreclosure against the Gallatin Railroad Company, though the complaint in intervention alleges, on information and belief, that the corporations are substantially the same.
    7. Merely a money demand against a defendant in a mechanic’s lien foreclosure will not warrant intervention therein, though plaintiffs consent thereto.
    8 Assignments of error in appellants’ brief which fail to comply with the rules of the supreme court, will not be considered.
    9. Where the overruling of a motion is assigned as error, and the language of the motion as it appears in the transcript is not the language of the assignment and does not convey the same idea, the assignment will not be considered.
    10. Where the record fails to show that the court ruled upon an offer of testimony, an assignment based upon the exclusion of such testimony will not be considered.

      Appeal from. District Court, Gallatin County; F. K. Armstrong, Judge.

    ActioN by Andrew B. Coot and Martin Woldson, partners doing business under "the firm name of Coot & Woidson, against the Gallatin Railroad Company and another, in wbicb J. B. Waltz and P. L. Reece, partners under the firm name of Waltz & Reece, intervene. From a decree for plaintiffs and inter-veners, and from an order overruling a motion for a new trial, defendants appeal.
    Modified.
    , Mr. John A. Luce, for Appellants.
    The lien, exhibit “A,” was based upon the contract and not upon a quantum meruit. The plaintiffs could not recover both upon tbe expressed contract and tbe implied contract. Tbe complaint was certainly demurrable for uncertainty, it was demurrable for want of facts and for uncertainty in tbe description of tbe property sought to be foreclosed and 'in other particulars, the defendant has a right to demur and can not be restricted to an answer merely where a complaint is amended. He pleads de novo. (Frick v. Manhattan B. Co., 15 Daly (N. Y.), 479, 24 Abb. N. Cas. 81; Harriott v. Wells, 9 Bosw. (N. 1.), 681; Speake v. Prewitt, 6 Texas, 252; Cleveland v. Cohrs, 13 S. Car. 897; Shaw v. Brown, 42 Miss. 309; State v. Green, 4 Gill & J. (Md.), 381.)
    It was error for tbe court to allow tbe plaintiffs to attempt to discredit tbe final estimate which they themselves bad introduced in evidence over tbe objection of tbe defendants; tbe decision of tbe superintendent of construction was final and binding and conclusive upon both parties to the contract, unless some fraud or collusion was alleged against him. (Z7. S. v. Boheson, 9 Pet. 319; Construction Co. v. Stout, 8 Coho. 61; Butler v. Tucker, 24 Wend. 449; Myer v. Pac. Construction Co., 27 Pac. 584; Bickle v. Irvine, 9 Mont. 251; 9 Ene. PI. & Pr. pages 684-689; Queen v. Hepburn, 7 Craneh, 291; Eice on Evidence (Civil), Vol. I> Secs. 93-95, 211; Varick v. Jackson, 2 Wend. 166, 201; Thompson v. Blanchard, 4 N. Y. 303, 311; Williams v. Sargent, 46 N. Y. 481-483; Pordham v.. Smith, 46 N. Y. 683; Code of Civil Procedure, Secs. 3378-3380; U. S. v. Jones, 3 Wash. C. C., 209; Lawrence v. Barker, 5 Wend. 301-305; Smith v. Briggs, 3 Denio, 74; Loup v. Cal. S. B. B. Co., 63 Cal. 97, 102; Herrick v. Belknap, 27 Yt. 673; Smith v. Brady, 17 N. Y. 173-177; Pres, of D. & H. Canal Co. v. Penn Coal Co., 50 N. Y. 250-271; Denver & N. O. Const. Co. v. Stout, 5 Pac. 627-631; Hudson v. McCartney, 33 Wis. 331.)
    It was necessary to allege and prove tbe performance of tbe contract before any mechanic’s lien could be filed or recovery bad. (Smith v. Brady, 17 N. Y. 173; Loup v. Cal. S. B. B. Co., 63 Cal. 97-102; 13 Eno. PI. & Pr. 978, and cases cited;
      Jacques v. Morris, 2 E. E. Smith, 639; Franklin v. Schultz, (Mont), 57 Pac. 1037; Harmon v. Ashmead, 60 Cal. 439; Jackson v. Cleveland, 19 Wis. 400.)
    The plaintiffs could not abandon tbe contract and sue upon a quantum meruit. (Carroll v. Craine, 9 Ill. 563; Malone v. Nigr PZai Cravel Company, 18 Pac. 772; Wilson v. Hind, 45 Pae. 695; Reed v. Norton, 26 Pae. 767; 15 Enc. PI. & Pr. 1002, 1003, and cases cited.)
    The plaintiffs should have been required to elect upon which cause of action they would stand. (Scofield v. Miltimore, 74 Wis. 194, Opin. 198, 199; Dewey v. Fifield, 2 Wis. 73; Deane et al. v. Wheeler, 2 Wis. 224.)
    The failure of plaintiffs to pay Waltz & Reece was proof of failure on the part of the plaintiffs to complete the contract and to furnish the labor, material, etc., thereunder. (Coderill v. Davie, 14 Mont. 131-135.)
    The plaintiff should not have been allowed to recover any more than the amount shown by Mr. Wiswell’s estimate which was made conclusive by the contract. (Story, Equity Jurisprudence, Sec. 1457.) ,
    There is a variance between the contract alleged by plaintiffs in the lien and in the body of the complaint and that which was proved on the trial. Furthermore the contract was not pleaded in the complaint or in the lien either according to its legal effect, or in haec verba. (Sec. 747-748, C. C. P.; Quick v. Clark, 7 Mont. 731; Jones v. Shuey, 40 Pac. 17; Eaton v. Malabeta, 92 Cal. 75.)
    The lien filed does not contain a correct description of tho property to be charged. It does not show in what township, section, range or subdivision any part of the line or right of way or road bed is situated, nor does it show the width or dimensions of the road bed or of the right of way or how said land Was to be covered or taken. No property could be identified by the description. The description might cover any piece of land whatever that might run in a southeasterly direction from the station at Mountain Side. The lien .was void for uncertainty. (Sections 2131, 2132, 2133, C. C. P.; Kellogg v. Littell & Smythe Mfg. Go., 25 P’ac. 461-462; Goodrich Lumber Go. v. Davie, 13 Mont. 76; Rawson v. Sheehan, 78 Mo. 668; Pillz v. Killingsworth, 20 Oregon, 432; Turney v. Saunders, 5 Ill. 527; Crawfordville v. Barr, 65 Ind. 367; Hunger v. Green, 20 Ind. 38; Short v. Ames, 121 Pa. St. 530; McCarty v. Fan Mten, 4 Minn. 461; Penrose v. Galkins, 19 Pac. 641; Willamette Steam Mill & Lumber Go. v. Kremer et at., 24 Pac. 1026; Mt. Tacoma Mfg. Go. v. Gultum, 32 Pac. 95.)
    There was no evidence introduced to show the ownership of the right of way and the land which was sought to be condemned. It was necessary for them to prove the ownership of the lands in addition to the road bed. It was admitted that defendant owned the road bed, but there was no admission as to the right of way. The road bed is the bed or foundation for the superstructure of a railroad. To entitle plaintiffs to a judgment of foreclosure it was necessary for them to prove the ownership of the right of way as well as this superstructure. {Nelson v. Clerf, 30 Pac. 716; San Francisco v. Genlral Pac. Railroad, 63 Cal. 469 ; San Francisco, etc. v. Board of Equalization, 60 Cal. 1234; Santa Glara Go. v. Southern Pac. R. R. Go., 118 17. S. 395; Front St. Cable Ry. Go. v. Johnson-, 25 Pac. 1084; Morehouse v. Collins, 31 Pac. 295; Kellogg v. Littell Mfg. Go., 25 Pac. 461, and cases cited 462; Santa Cruz Rock Pavement Go. v-. Lyons, 48 Pac. 1097; Williams v. Vanderbilt, 145 Ill. 238, S. C. 21 L. E. A. 489; Munster v. Doyle, 50 Ill. App. 672.)
    The lien filed was further fatally defective in not stating the time, terms and conditions of'the contract under which the work was done and materials furnished. {Hooper v. Flood, 54 Cal. 218.)
    The interveners must stand or fall upon the lien filed and this can not be aided by averments. {Goss v. Strelitz, 54 Cal. 640.)

      Messrs. Hartman £ Hartman, and Mr. M. S. Gunn, for Ee-spondents.

      There are some twenty-eight errors specified in the appellants’ brief, but of all these errors only a few can be considered by this court, under its rules and decisions. The decisions of this court hold appellants strictly to the requirements of the rules, and that a failure to comply with Rule 10 warrants the court in refusing to consider the errors charged. (State v. Shepp-hard, 23 Mont. 323; State v. Allen, 23 Mont 118; McGleary v. Crowley, 22 Mont. 245-247; Babcock v. Caldwell, 22 Mont. 460-462; Gibson v. Hubbard, 22 Mont. 517; Anderson v. Carlson, 23 Mont. 43; Smith v. Denniff, 23 Mont 65-67; State v. Shepphard, 23 Mont. 323-327; Missoula Mer. Co. v. O’Donnell, 60 Pac. 594; Cole v. Byan, 60 Pac. 991; Schatzlein Paint Co. v. Godin, 62 Pac. 819; Behberg v. Greiser, 62 Pac. 820; Patterson v. Pfouts, 64 Pac. 222.)
    The action was for the foreclosure of a lien mentioned in the complaint, and was, therefore, an equitable action and the verdict of the jury was simply advisory to the court. (Mochon v. Sullivan, 1 Mont. 470; Simontonv. Kelly, 1 Mont. 483; Biale v. Boush, 1 Mont. 474; Davis v. Alvord, 94 U. S. 545; Sanford v. Gates, Townsend Co., 21 Mont. 277; Basey v. Gallagher, 20 Wall. 670; Mantle v. Noyes, 5 Mont. 274.)
    It being an equitable action, and the verdict of the jury being simply advisory to the court, no error can be considered by this court which is predicated on the instructions of the court below to the jury, either in giving instructions or in refusing instructions presented. (Lawlor v. Kemper, 20 Mont. 13; llaggin v. Saile, 23 Mont. 375; Siveetser v. Dobbins, 65 Cal. 529 ; Schneider v. Brown, 85 Cal. 205; Biley v. Martinelli, 97 Gal. 575; Bichardson v. City of Eureka, 110 Cal. 441.)
    The record does not' show that the instructions requested and refused were signed by counsel. (Section 1080, Subd. 7, O. C. P.; Darnell v. Sallee, 34 N. E. 1020; Buchart v. Ell, 36 N. E. 762; Bank v. Bennett, 36 N. E. 551; Bailway Co. v. Mitchell, 26 S. W. 154; Bailway Co. v. Hobbs, 43 N. E. 479; School-field v. Houle, 13 Colo. 394.)

      Tbe testimony upon all contested points was conflicting and this court will not, therefore,. consider the question as to the. insufficiency of the testimony to sustain the decree of the court below. (Ingalls v. Austin, 8 Mont. 333; Reardon v. Patterson, 19 Mont-. 231; McIntyre v. McCabe, 19 Mont. 333; Harrington v. B. & B. M. Co., 19 Mont. 411; Nyhart v. Pennington; 20 Mont. 161; Baxter v.,Hamilton, 20 Mont. 327; Gallagher v. Cornelius, 23 Mont. 27; State v. Allen, 23 Mont. 118 ; O’Rourlce v. Sherman, 23 Mont. 310; Noyes v. Ross, 23 Mont. 42.5; State v. Ilurst, 23 Mont. 484.)
    Common counts are admissible under a system of Code pleading. (Ilosley v. Blach, 28 N. Y. 438; Cattagnino v. Balletta, 82 Cal. 250; Parrón v. Sherwood, 17 N. Y. 227; Pleasant v. Samuels, 45 Pac. 998; Galvin v. MacM. & M. Co., 14 Mont. 508; Nyhart v. Pennington, 50 Pac. 413.)
    Where work and labor have been performed or done under a special contract, which has been fully executed by the plaintiff, and nothing remains to be done except the payment of money which is due, a recovery may be had on a quantum meruit. (Parrón v. Sherwood, 17 N. Y. 227; Stuclcey v. Hardy, 41 N. E1. 606; Shepard v. Mills, 50 N. E. 709; Moore v. Mfg. Co., 20 S. W. 975; Castagnino v. Balletta, 82 Cal. 250; Electric Co. v. Berg, 30 S. W. 454; Higgins v. Railroad Co., 66 N. Y. 604; Railroad Co. v. Donovan, 65 N. W. 583; Devec-mon v. Shaiv, 9 Am. St. Pep. 422; Ludlow v. Dole, 62 N. Y. 617; Gambril v. Schooley, 43 Atl. 918; Ingle v. Jones, 2 Wall. 1; Note to Cutter v. Powell, 2 Smith’s Lead. Oases, 41; Lane v. Adams, 19 Ill. 167; Tunnison v. Field, 21 Ill. 108; Combs v. Steele, 80 Ill. 101; Fowler v. Deakman, 84 Ill. 130; Davis v. Badders, 10 So. Pep-. 422; Board of Commissioners v. Gibson, 63 N. E. 892.)
    Appellants contend that the procuring of the certificate of the superintendent of construction of the road that the work was completed, was a condition precedent h> the right of payment, and that plaintiffs should have alleged in their complaint the procurement of this certificate or made allegations showing a legal reason why it had not been obtained. As to this point we say, that where the contract has been completed and the action is brought on the quantum meruit no such allegation need be contained in the complaint and the plaintiff can make proof of the facts necessary to establish his claim without any special allegation. (Elevator Go. v. Clark, 80 Fed. 705; Riggins v. Railroad Go., 66 N. T. 604; Gastagnino~ v. Balletta, 82 Cal. 250; Gornbs v. Steele, 80 Ill. 101; Fowler v. Deakman, 84 Ill. 130; Davis v. Badders, 10 So. Eep. 422.)
    The final estimate is conclusive that the contract was completed. (Wyckoff v. Meyers; 44 N. T. 143; 29 Am. .& Eng. Ency. Law, pp.. 937 and 938.)
    Even if the court committed error as to interveners’ second cause of action, it should not be sufficient to reverse the entire judgment, but this court would have the right and it would be its duty to so modify the judgment against the appellants as to cure any error on account of the second cause of action of interveners. (Ramsdell v. Glark, 20 Mont. 103.)
    This court cannot review the action of a lower court in refusing an application for a new trial in an equity case unless it appears that all or substantially all of the evidence introduced at the trial is contained in the record. (Baker v. Ray, 2 Euss. 75; Watt v. Starke, 101 IT. S. 247; Bootle v. Blundell, 19 Yes. 500; Still v. Saunders, 8 Cal. 281; Gurrie v. M. C. Ry. Go;, 24 Mont. 123; T. G. Bower & Bro. v. Stocking, 26 Mont. 478; Merchants3 Nat3l Bank v. Greenhood, 16 Mont. 395, p. 450 et seq.; M. O. P. Go. v. B. & B. C. M. Go., 25 Mont. 427.)
   ME. JUSTICE MILBUEN

delivered the opinion of the court.

This is a suit fop the foreclosure of a lien upon the property of the defendant railroad company, with intervention by the interveners named in the title of the cause.

It has been very difficult to get a correct idea of the pleadings and of the theory upon which the case was tried, as the pleadings were not as skillfully drawn as they might have been, and because the brief of the appellants fails to comply with the rules of the court in some particulars, thus requiring us to rely upon our own research in some parts, and causing us h> fail to discover appellants’ meaning in other places, and, further, because the argument is involved, going from one point to another without any attempt to take up and discuss the points in the order in which they are indicated in the assignment of alleged errors.

Plaintiffs filed in the office of the county clerk a notice of lien, and brought an action to foreclose the lien, declaring upon a contract in writing, in which, among other things, it was stipulated that the parties thereto should settle upon the final esti1 mate of the superintendent of construction of the defendant railroad company. Plaintiffs averred that they had complied with the terms of the contract, and that under its terms they were entitled to a balance of $13,252.82, with attorney’s fees and costs. After a jury was sworn, plaintiffs, with leave, amended their complaint by adding a paragraph declaring the reasonable worth of all of the labor done to be the sum of $30,-022.82. There does not seem to have been any objection to this amendment, which was made after the second amended'answer, upon which defendants relied on the trial, had been filed. The defendants asked leave to interpose a demurrer to the complaint as amended, but the record fails to disclose that they stated upon what grounds they wished to demur, or that they offered any demurrer in writing to the court. IJpon the trial the plaintiffs, for the purpose of showing that the vrork had been completed, introduced in evidence the “final estimate” of one Wiswell, who was the superintendent of construction of the defendant company. Examination of the complaint, the answer, and of this estimate, which appears in full in the record, makes it certain that the plaintiffs claimed and introduced proof to show that they had excavated and removed cubic yards of solid rock and loose rock largely in excess of the number of cubic yards stated in the Wiswell estimate, and that the defendant company denied on the trial that the number of cubic yards of solid rock and loose rock removed by plaintiffs was as great as claimed by plaintiffs or stated in tbe said estimate, and introduced proof to' support tbeir contention.

Tbe interveners, having filed two notices of lien, asked that as to one cause of action they be allowed a lien, with provision for a deficiency judgment against plaintiffs ; and, as to tbe second cause of action, without any reference to any claim against plaintiffs, they asked for a lien on tbe property oí tbe defendants. The notice of lien first mentioned in tbe bill of intervention, referring to plaintiffs, declared tbe name of tbe owner of tbe property upon which they sought a lien to be tbe Yellowstone Park Railway. In tbe other notice set out in connection with tbeir second cause of action, without any reference therein to plaintiffs, interveners describe tbe owner to be tbe Yellowstone Park Railroad Company. .Defendants demurred to tbe complaint in intervention, and to each cause of action therein set forth; one ground being that it did not, as a whole, or as to either cause of action, state facts sufficient to constitute a cause of action. This demurrer was overruled. Tbe plaintiffs admitted all that interveners claimed, except as to the amount alleged to be due, and as to this they admitted all except a small sum. Tbe court brought in a jury to- advise it. Tbe jury found for plaintiffs, assessing tbe damages at $14,017.37. Tbe court found and entered its decree in favor of plaintiffs and interveners adjudging liens upon all the property of tbe defendants as prayed, and directing that tbe property be sold to satisfy tbe liens. Tbe defendants appeal from tbe decree, and from an order overruling a motion for a new trial.

Twenty-eight assignments of error are in tbe brief, one of them not being numbered.

1. Defendants declare that tbe court erred in refusing to allow them to interpose a demurrer to thé plaintiffs’ complaint as amended, and in compelling defendants to answer immediately tbe same. While this appears to be two points in one, tbe only point apparently argued and relied upon is that tbe court erred in refusing to allow a demurrer to be interposed to the complaint as amended; it having been amended after the jury were sworn by adding a paragraph to the effect that the work and the labor done were reasonably worth the sum of $30,-022.82. The record does not show that the demurrants stated any ground to the court why the answer as amended was de-murrable. If a demurrer in writing was offered, it has not been pointed out in the record. The complaint seems to state a cause of action, and we cannot hold that the court erred as assigned.

It. does not appear that the defendants asked leave to amend their answer, or suggested that they wished to do so.

2. The 2d, 3d, 4th, and 5th assignments of alleged error refer to the court’s action in permitting the introduction of testimony showing or tending to show that the “final estimate” made by the superintendent of construction, Wiswell, was inaccurate as to the classifications of the rock and earth removed. The fifth assignment we do not notice, except so far as it may be covered by the remarks made in this paragraph, for the reason that it does not make any reference to any page of the record, and contains several assignments merged in one. We do not find that the court erred in permitting the appellants to introduce evidence to show the quantities of rock, loose rock, earth, etc., which were actually removed under the contract, and that the statement of Wiswell was not true. The case was tried hy each party on the assumption that the statement of Wiswell was not correct, and that it had not been considered by either party as the basis of settlement. The plaintiffs said it showed too little work done under some classifications, and the defendants declared that it showed too much done under the same heads. It having been repudiated by each party in open court upon the record, it does not seem to us that any prejudice could result in admitting the testimony which was introduced by each side. It is true that plaintiffs declared in their complaint upon a contract in writing, under the terms of which they could not be paid until a final estimate had been made; and it is also true that the plaintiffs did not in their complaint, avoid or attack the truth of the final estimate which was made. It also appears that the defendants denied tbat tbe plaintiffs bad complied witb the terms of the contract. But the case having been tried and submitted in the court below upon the theory that the “final estimate” was not true, appellants cannot now maintain that, under the complaint, evidence was not admissible to show that the final statement was false. Such evidence as may have been hearsay as to Wiswell having said that his final estimate was false could not be prejudicial, as defendants themselves declared that the said estimate was not true.

3. As to assignments 6, 7, 8, and 9, we need only say that they are not' stated as the rules require. We cannot separate and number assignments where they are merged, and we cannot hunt through transcripts where there are not any references to pages thereof.

4. It is assigned that the court erred in refusing “the motion of defendants to compel the plaintiffs to elect whether they would stand upon the implied contract alleged in the complaint or upon the express contract, and to dismiss the action for the foreclosure of the lien.” Referep.ee to the transcript at the page indicated shows that the defendant did not make this motion. The language of the motion as it appears in the transcript is not the language of the assignment, and does not convey the same idea. Therefore we do not find that the court erred as assigned.

5. In assignment numbered 11, appellants say that “it was error to refuse the offer of proof made as to the classification of J ames M. Robertson, and to refuse to allow the witness Boyce to identify a statement of his classification so that it could be offered in evidence.” Examination of the parts of the record referred to shows that the court made three rulings against the appellants. To which of the three the assignment refers, we do not know. The assignment does not conform to the rules, in that the same is a merger. We will say, however, that it seems to be an attempt to prove by Boyce that one Robertson made certain calculations as to the amount of work done, and dictated them to Boyce, and that appellants offered to introduce classifications thus made to show that their own (Wiswell’s) final statement was inaccurate. They were objected to as irrelevant, immaterial, and incompetent, and because there was not anything before the court to- show that the data given by Robertson to Boyce were correct. We think the court was right in excluding the evidence. Robertson was not a witness on this trial, and there was not any legal ireason advanced why his data should have been introduced in the way intended by the appellants. Moreover, as we have said, it was admitted by both sides that Wiswell’s statement was not correct.

6. Referring to the twelfth assignment, we find that counsel assembles three alleged errors without setting them out “separately and particularly,” as the rules require. Counsel makes a “point of law to be discussed,” to-wit, was certain evidence properly, rebuttal, or should it have been offered in chief ? This point is raised by the assignment of the three alleged errors. We cannot consider what is not properly presented, and therefore we do not find the court in error as suggested. -Besides, the order of proof is largely in the discretion of the court.

Y. As to assignments numbered 13 to 22, inclusive, relating to the instructions to the jury, refused or given, we need not make any remarks, as the case was one for the final judgment of the chancellor, to whom the findings of the jury were only advisory. The statement contained in Marsh v. Morgan, IS Mont. 19, which was a suit for foreclosure of a mechanic’s lien, that the case therein considered was not an equity case, for the reason that there was not any equity issue, is opposed to the holding of this court from the time of the organization thereof up to the date of the adoption of the constitution, and there is not anything in that instrument which changes the rule. A suit to foreclose a mechanic’s lien is a proceeding in chancery to be enforced in conformity -with the established rules and principles governing proceedings in chancery. (Mochon v. Sullivan, 1 Mont. 470; Simonton v. Kelly, 1 Mont. 483;Riale v. Roush, 1 Mont 474; Curnow v. Blue Gravel Co., 68 Cal. 262; Mont. Ore Pur. Co. v. B. & M. C. C. & S. M. Co., 27 Mont. 288, 70 Pac. 1114; Williams v. Uncompahgre Canal Co., 13 Colo. 469, 22 Pac. 806, and citations.)

8. Assignment numbered 23 need not be considered.

9. We cannot see that it was error, as alleged in assignment numbered 24, for the court to sustain the objection of the plaintiffs to the question, “What have yon to say as to whether the clearing and finishing of the contract * * * has been completed by the plaintiffs ?” If defendants wished to make a record of error, they should have told the court what they expected to prove by the witness, and offered to prove it, and take exception to. the ruling of the court upon such offer, if it were adverse. So counsel seemed to think, and they did make the offer; but, so far as we can find from the record, the court did not make any ruling upon it, and the matter seems to have been dropped without any further effort to get a ruling upon the offer. In the argument in the brief it is stated that the court excluded the testimony offered. The record does not show that the court excluded any such testimony, for it did not make any ruling upon the offer, as we have said above. We cannot say that the court erred as alleged.

10. Was it “error for the court to find for the plaintiffs,” as assigned in assignment numbered 25 ? The argument in the brief not treating of the assignments seriatim, and in many parts thereof not being clear as to what points are discussed, we have found very great difficulty in collating the several sentences and paragraphs which are intended to express the views of counsel as to this and other alleged errors. Such an assignment as the one numbered 25 does hot point out or specify any particular finding or decision of the court as erroneous:

11. We take up now assignment numbered 26. Appellants say that the court erred in overruling the demurrer of defendants to the interveners’ complaint. The complaint in intervention declares upon contracts with the Gallatin Railroad Company, and a notice of lien upon the property of the Yellowstone Park Railway Company, a corporation, and another notice of lien upon the property of the Yellowstone Park Railroad Company, a corporation. The complaint in intervention also says> upon information and belief, that the Yellowstone Park Rail-read Company and the Gallatin Railroad Company are the same cl rporation, or substantially the same corporation, and that the Yellowstone Park Railway and the Gallatin Railroad Company are the same corporation, or substantially the same.

Before taking up and considering the several grounds of the demurrer to this complaint in intervention, it is necessary to set .forth more particularly the allegations contained in the complaint. Interveners allege in their first cause of action that between August 25 and November 17, 1898, they performed work 'and labor for the defendant Gallatin Railroad Company (describing it), which work and labor was done at the special instance and request of the plaintiffs, Cook & Woldson. In their second cause of action they say that between September 1 and November 15, 1898, they performed certain work and furnished certain material to the defendant Gallatin Railroad Company at its special instance and request, and that the reasonable value •thereof ($490.93) has been due and owing to the interveners from the Gallatin Railroad Company since November 15, 1898. The interveners pray judgment upon their first cause of action for the sum of $5,293.47, with interest and attorney’s fees, and that they may have a deficiency judgment against the plaintiffs if the property be not sold for enough to pay the full amount of their claim (in other words, they apparently want judgment against the defendants, and a deficiency judgment against the plaintiffs) ; and upon the second cause of action they pray for judgment for $490.93, with interest and attorney’s fees, with a lien on the property described, and, in the event that the claim of plaintiffs “be established upon the property above mentioned, then in that event, that the proceeds derived from the sale of said property shall be shared equally, pro rata, according to the re pective amounts so found due plaintiffs and interveners, in case the said proceeds arising from, the sale of said property be insufficient to pay said plaintiffs and .interveners’ claims in full * * Of course, the prayer is not part of the complaint; and it, in part, is introduced herein only for what it is worth, to aid ras in arriving at some understanding as to what the complaint in intervention means. Defendants demurred to the complaint in intervention upon the gimmd, among others, that ii did not state facts sufficient to constitute a cause of action. The demurrer attacked the first cause of action upon the ground, among others, that it did not state facts sufficient to constitute a cause of action, and the second cause of action upon the like ground, among others.

We think the demurrer should have been sustained on the ground that the complaint did not state facts sufficient to constitute a cause of action; that is, that there was a want of any reason or ground for intervention in the suit. It is apparent from an examination of all the averments of the complaint in the first cause of action that the interveners never made any bargain with the Gallatin Railroad Company, although they may have done so with some other company; and it is obvious that there is not any basis for a lien in favor of the interveners against the property of the defendant company, for that it is not named in either of the alleged notices, and, further, not having any such basis, the alleged fact that they have a cause of action at law for a money judgment against the defendants, or one of them, is not of itself sufficient to warrant intervention in the suit of plaintiffs to foreclose a lien, however willing the plaintiffs may be to permit the interveners to come in. It is possible to assume from the complaint that the interveners intended to allege that they were subcontractors of the plaintiffs as to the first cause of action, but, considering the complaint with the notices of lien attached thereto, there is not a sufficient statement of a cause of action for the establishment of a lien upon any property belonging to the defendants. In Missoula Mercantile Company v. O'Donnell, 24 Mont. 65-75, 60 Pac. 594, 991, the chief justice, speaking for the court, said that it is incumbent iipon the claimant to insert the owner’s name in the notice of lien which the law requires to be filed in the office of the county clerk. (Section 2131, Code of Civil Procedure.) Tbe abstract made by tbe county clerk (Section 2132, Code of Civil Procedure) must contain “tbe name of tbe person * *' * against whose property tbe lien is filed.” It is no hardship that tbe claimant shall be required to insert tbe name of tbe owner in tbe notice, says this court in the opinion cited above. “Tbe claimant is bound to know for whom be works, 01 for whose benefit be is bestowing bis materials. If be assumes tbe risk without inquiry sufficient to enable him to preserve bis rights, it is bis own fault. Tbe statute gives him ample time to inform himself. ' Though the statute is remedial in character, its requirements must be complied with. (Black v. Appolonio, 1 Mont. 342.)” M. M. Co. v. O’Donnell, supra. Omission of tbe name of tbe owner whose interest is to< be charged cannot be supplied by tbe complaint. (Phillips, Mech. Liens, 345.)

Por tbe foregoing reasons, and under tbe authority of Missoula Mercantile Co. v. O’Donnell, supra, and tbe cases cited by tbe chief justice therein, and (as to tbe alleged second cause of action) because tbe having’ of a right of action against a defendant (in a certain cause commenced by another) for tbe recovery of money, merely, without a right of lien, is not ground or reason for intervention in a cause brought by another party against said defendant, we conclude that tbe demurrer as to each of tbe alleged causes of action should have been sustained.

For tbe reasons last above stated, it was error to find for tbe interveners, as stated in assignment numbered 27.

Tbe decree, for tbe reasons stated, must, and is, modified by striking out so1 much thereof as finds for, and decrees any lien in favor of, tbe interveners, and as modified is affirmed. The interveners will pay one-half of the costs of appeal.

Modified and Affirmed.

Mu. Justice Holloway, having been of counsel in tbe court below, takes no part in tbe decision or in this opinion.


source: Caselaw Access Project

author: ME. JUSTICE HOLLOWAY,

license: Public Domain

text:
    SPENCER et al., Appellants, v. MUNGUS et al., Respondents.
    (No. 1,590.)
    (Submitted May 28, 1903.
    Decided June 6, 1903.)

      Costs — Allowance to Defendant • — • Order —■ Bight of Appeal.

    1. An order, after final judgment for defendant, refusing to disallow bis costs, is reviewable on appeal from tbe judgment, and not on an independent appeal; tbe costs being a part of tbe judgment.
    2. Code of Civil Procedure, Section 1851, allows costs, of course, to tbe plaintiff, on his recovering a judgment in excess of $50 in an action for money' or damages. Section 1852 provides that costs must be allowed, of course, to tbe defendant, upon a judgment in bis favor. Seciton 1853 provides that no costs can be allowed in an action for the recovery of money or damages when tbe plaintiff fails to recover more than $50. ■ Helll, that costs were properly allowed defendant on bis recovering $35 under a' counterclaim.

      Appeal from, District Court, Granite County; Welling Nap-ton, Judge.

    ActioN by John A. Spencer and C. C. Spencer, copartners under the firm name of John A. Spencer & Son, against Mike Mungus and A. Blazina, copartners under the firm name of A. Blazina & Co. Judgment for defendants, and plaintiffs appeal.
    Affirmed.
    Statement op the Case.
    This action was commenced in the district court of Granite county by the appellants (plaintiffs below) to recover the sum of $1,118.66, alleged to be due from the defendants for goods, wares and merchandise sold by the plaintiffs to them between May, 18.98, and December, 1899. Defendants filed an answer denying the material allegations of the complaint, and, by way of counterclaim, sought to recover judgment against the plaintiffs for $1,492.98, alleged to be due for moneys loaned and goods sold to and for work done for them by the defendants during the two years next prior to the date of the filing of the answer. All the allegations of tbe counterclaim were denied by the reply. The canse was tried to' a jury, which returned a verdict in favor of the defendants for $35. From the judgment entered thereon for the amount of the verdict, and including the defendants’ costs, the plaintiffs appeal. The notice of appeal states that the appellants also appeal from an order of the district court refusing to> strike out and disallow the defendants’ costs.

      Mr. Josiah Shull, and Mr. W. E. Moore, for Appellants.

      Messrs. Durfee & Brown., and Mr. George A. Mayiuood, for [Respondents.
   ME. JUSTICE HOLLOWAY,

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

The appellants apparently proceeded upon the theory that the order of the district court refusing to disallow the defendants’ costs was an order made after final judgment, and appealable as such. But costs are a part of the judgment, and, in contemplation of law, are settled before being incorporated in the judgment, and any order made with reference thereto' is reviewable upon the appeal from the final judgment. (Mont. Ore Pur. Co. v. Boston & Montana C. C. & S. M. Con., 27 Mont. 288, 70 Pac. 1114.)

The only error assigned is the action of the district court in including in the judgment the defendants’ costs. It is con-, tended that no costs can be allowed in this action, for the reason that neither party recovered more than $50. So much of the Code of Civil Procedure as is necessary to be considered in a determination of this question is as follows:

“Sec. 1851. Costs are allowed, of course, to the plaintiff, upon a judgment in his favor, in the following cases: * * * (3) In an action for the recovery of money or damages, exclusive of interest, when plaintiff recovers over fifty dollars.
“Sec. 1852. Costs must be allowed, of course, to tbe defendant, upon a judgment in his favor in the actions mentioned in the next preceding section. * * *
“Sec. 1853. * * * But no costs can be allowed in an action for the recovery of money or damages when the plaintiff fails to recover more than fifty dollars. * * *”

TJnder Section 1851, above, costs are allowed to the plaintiff only upon two conditions: First, that he prevails in the action; and, second, that his recovery exceeds $50. Under Section 1852, costs are allowed to the defendant upon a judgment in his favor, whether it be upon a general.verdict which merely defeats the plaintiff’s right of recovery, or for a definite amount in his favor, however small the amount may be. (Davis v. Hurgren, 125 Cal. 48, 57 Pac. 684; Dows v. Glaspel, 4 N. D. 251, 60 N. W. 60.) Under Section 1853, which is the corollary of the other two, neither party is allowed costs when the plaintiff prevails in the action, but his recovery does not exceed $50. This is the construction placed upon a like provision by the Supreme Court of California in Anthony v. Grand, 101 Cal. 235, 35 Pac. 859. In that case the pláintiff prevailed, but recovered less than.the amount necessary to carry costs, and the defendant contended that in that event he (defendant) should recover his costs. In disposing of the question the court said :• “Our statute provides that ‘no costs can be allowed in an action for the recovery of money or damages when the plaintiff recovers less than three •hundred dollars.’ (Code Civil Procedure, Sec. 1025.) This evidently applies to both parties to the action, and forbids the recovery of costs by either of them.”

In this case the defendants recovered judgment, and, under the provisions of Section 1852, above, are entitled to have included in that judgment their costs. The provisions of Section 1853, above, have no application whatever to the facts of this case. That section only applies when the plaintiff recovers judgment, but the amount of. his ■ recovery does not exceed $50. Costs are the creatures of statute. They were not allowed at all, eo nomine, at common law; and the particular items of expense incident to a trial which may be denominated costs, as well as the conditions prescribed under which they may be allowed to one party or another, are subject to legislative change and control in consonance with the provisions of the state constitution. (Mont. Ore. Pur. Co. v. Boston & Montana, C. C. & S. Min. Co., above.)

The appeal from, the order refusing to disallow the defendants’ costs is dismissed, and the judgment affirmed.

Affirmed.


author: MR. COMMISSIONER CALLAWAY

text:
    WILLIAMS et al., Appellants, v. BOARD OF COMMISMISSIONERS OF BROADWATER COUNTY et al., Respondents.
    (No. 1,602.)
    (Submitted June 1, 1903.
    Decided June 8, 1903.)

      County Commissioners — Powers — Contracts — Suits — Employing Gounsel — Gounty Not a, Party.

    1. A contract with an attorney ior his services, entered into by the chairman of the board of county commissioners, individually, is not binding on the county, where the first and only action of the board with reference thereto, is the allowing of a portion of the attorney’s claim for legal services rendered in pursuance of the contract, since the commissioners have power to bind the county only where they act as a legal entity.
    2 If under Political Code, Section 4230, the board of county commissioners has power to employ counsel (which is not decided), it has none whatever to employ counsel to prosecute a suit by an employe of the board against an officer of the county, where the county is not a party to the suit.

      Appeal from District Court, Broadwater County; F. K. Armstrong, Judge.

    E. A. Caeleton presented a claim to tbe board of county commissioners of Broadwater county. From tbe action óf tbe board in allowing part of tbe claim, David T. Williams and other taxpayers appealed to the district court, which rendered judgment against appellants; from which judgment, and from an order denying a motion for a new trial, they appeal. Reversed.

      Mr. E. H. Goodman, for Appellants.
    The board of county commissioners must cause to be kept in suitable books a record of all their official acts. (Sec. 4219, Political Cbde.) To prove these official acts the records themselves would undoubtedly be the best evidence. • (Secs. 3208 and 3204, Cbde of Civil Procedure; Belle v. Meagher, 3 Mont. 65.)
    “Boards of commissioners are the general public agents by which the powers of' counties are exercised, but, being creatures of statute, they can exercise only such powers as are expressly conferred upon them, or are necessary to the performance of their public trusts and duties.” (Am. & Eng. Ency. of Law (2d Ed.), Yol. 7, p*. 976, and note; Thomas v. Smith, 1 Mont. 1; Morris v. Multnomah-Co., 18 Ore. 163.)
    “A grant of powers to> such corporation must be strictly construed.” (Am. & E'ng. Ency. of Law! (2d Ed.), Yol. 7, p. 976, note 3.)
    “A board of county commissioners can act only when convened as a board in legal session, either regular, adjourned, or special, as may be provided by statute.” (Am. & Eng. Ency. of Law (2d Ed.), Yol. 7, p-. 979, and note; Eigemann v. Posy Co., 82 Ind. 413; Paola, etc. B. Co. v. Anderson Co., 16 Kan. 303; Anderson Co. v. Paola, etc. B. Co., 20 Kan. 534; PLavnil-ion County v. Webb, 47 Kan. 104; Willis v. Webb, 27 Pac. 825.)
    We are willing to- concede that county commissioners can employ counsel to prosecute or defend an action to which the county is a party, but it is conceded that the county was not a party to the cases of Coad v. Lambert. No necessity for the employment of Carleton was shown. {Miller -v. Board of Commissioners, 35 Pac. 712.)

      Even when commissioners employ counsel other than the county attorney to prosecute or defend an action to* which the county is a party, this must be done at a regular or special meeting of the board. The employment must be the act of the legal entity: the “board,” and not the act of the individuals constituting the board. As county commissioners are but agents of the county, they cannot delegate their powers to another agent, particularly in cases where the exercise of their powers involves reason and discussion. “The board of county commissioners of a county cannot delegate its powers '* * * to obtain attorneys to manage the prosecution of suits to which the county is a party, nor to abdicate its control of such a suit.” (House v. Los Angeles Co., 104 Cal. 79; Smith v. Los Angeles Co., 99 Cal. 628; Scollay v. County of Butte, 67 Cal. 249 ) County commissioners, if authorized by statute (and not otherwise) may appoint an agent to discharge ministerial duties not calling for the exercise of reason or discussion, but cannot go beyond this and delegate to others, duties, the discharge of which, calling for the exercise of reason and discretion, are regarded as public trusts. (House v. Los Angeles Co., 104 Cal. 79; People v. Town of Linden, 107 Cal. 94; Scollay v. Covniy of Butte, 67 Cal. 249.)
    “Contracts made by public officers, as county commissioners of a county, obtain validity only by force of the law authorizing their making, and persons contracting with such officers are charged with knowledge of their lawful power and the extent of their authority.” Any contract beyond the scope of the corporate power is void. (Lebcher v. Commissioners of Custer Co., 9 Mont. 315 ; Parr v. Village of Creenbush, 72 N. T.472; 1 Dillon on Municipal Corporations, 457; Zoltman v. San Francisco, 20 Cal. 105; Morris v. Multnomah Co., 18 Oré. 163; State v. Superior Court, etc., 4 Wash. 34.)
    Commissioners in allowing bills cannot act arbitrarily, but must be controlled by legal considerations. (David v. Commissioners, 4 Mont. 292.)

      By Subd. 15 of Section 4230, Political Code, tbe power of the' commissioners is expressly limited to tbe direction and control of suits to which tbe county, is a party.
    It was claimed by respondents in tbe court below that tbe allowance of Carleton’s bill by tbe commissioners ratified tbe contract and that in consequence of such ratification tbe county became liable. If tbe county bad been beneficially interested and tbe contract was one within the scope of tbe authority of tbe commissioners, and not void, tbe commissioners-by accepting tbe benefits arising therefrom, if any, might ratify a legal contract made by an unauthorized agent, but simply ordering tbe bill paid would not be a ratification, neither would it be ‘‘accepting tbe benefits arising from tbe contract.” To bold that tbe allowance of an illegal claim against a county is a ratification of tbe contract on which tbe claim was based, would be bolding that the power of county commissioners is unlimited by any legal consideration in matters of this kind.
    “A void indebtedness against tbe county can only be made valid by legislative authority.” (Hunt v. Fawcett, 8 Wash. 399.)
    “A claim will not be enforced against a county unless it is authorized by some plain provision of law.” (State v. Superior Court, etc., 4 Wash. -34.)
    Claims against tbe county which areTegally chargeable alone can be allowed by tbe supervisors. (Linden v. Case, 46 Cal. Ill; Foster v. Colman, 10 Cal. 278; See. 4285, Political Code.)
    A contract void at its inception cannot be legalized by ratification. (Hunt v. Fawcett, 8 Wash. 399; Smith v. Los Angeles Co., 99 Cal. 628; Zottmanv. San Francisco, 20 Cal. 97.)
   MR. COMMISSIONER CALLAWAY

prepared tbe opinion for tbe court.

It appears from tbe record that tbe board of-county commissioners of Broadwater county, at a special meeting held in January, 1899, employed George Lambert and another to index tbe records of their county, and ordered the county clerk to give Lambert and associate access to his office and to the records therein. This the county clerk, upon the advice of the county attorney, refused to do. After the adjournment of the board Dumen, its chairman, met Lambert upon the street, and directed him to employ counsel for the purpose of bringing an action' against the county clerk, saying that the county would pay the bill. The board of county commissioners, while in session, never authorized Lambert, or any other person, to employ counsel. Under the direction given; Lambert employed E. A. Oarleton, and Dumen afterwards saw Oarleton concerning it. Application was then made to the district court, in behalf of Lambert, for a writ of mandate to compel the county clerk to give the desired abcess to his.office and records.' The case finally reached the supreme court, where the application of Lambert was denied, on the ground that his contract with the board was void. (State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092.) Thereafter Oarleton presented his account against Eroadwater county, claiming, the sum of $255.50 “for legal services and expenses in the conduct of the cases of Lambert v. Coad and Goad v. Lambert, which cases were tried in the district court of Broadwater county and the supreme court of the state.” During their September, 189’9, session, the board allowed Oarleton one-half of his claim. From this action David T. Williams and other taxpayers of Broadwater county appealed to the district court, which rendered judgment against appellants, and ordered the board to pay Oarleton’s bill as theretofore allowed. From such judgment, and an order denying a motion for a new trial, Williams and others appeal to this court.

From the foregoing facts it will be seen that the board of county commissioners of Broadwater county did not employ, or authorize any one to employ, Carleton.

“Each county must have a board of county commissioners consisting of three members.” (Political Code, Sec. 4210.) “All meetings of the board must be public, and the books, records, and accounts must be kept at the office of tbe clerk, open at all times for public inspection, free of charge.” (Id. Sec. 4216.) The board must hold four regular sessions each year, at the county seat. (Id. Sec. 4220.) “If at any time after the adjournment of a regular meeting the business of the county requires a meeting of the board, a special meeting may be ordered by a majority of the board. The order must be entered of record, and five days’ notice thereof must by the clerk be given to each member not joining in the order. The order must specify the business to be transacted, and none other than that specified must be transacted at such special meeting.” (Id. Sec. 4215.)

This board, having supervision over the official conduct of all county, officers, and generally over all county business, is one of considerable dignity and power; and the statutes contemplate that its meetings shall be held and conducted in an orderly and businesslike way. To bind the county by its contracts, it must act as an entity, and within the scope of its authority. Its members may not, discharge its important governmental functions by casual sittings on drygoods boxes, or by accidental meetings on the public streets; and its chairman,, unless lawfully authorized by the board to do some act, or acts, hao no more power than has any other 'member of the board. The statutes do not vest the power of the county in three commissioners acting individaully, but in them as a single board; and the board can act only ivhen legally convened. (Paola & Fall River Railway Co. v. Commissioners, 16 Kan. 302; 7 Am. & Eng. Ency. Law (2d Ed.), 979.) And its minutes should be kept in such manner as to give true and correct information to all inquiring concerning county affairs.

As shown by its minutes, the first and only action ever taken by the board with reference to Garleton’s services was when it ordered a portion of his claim paid.

But, had the contract between Carleton and the board been entered into in a regular manner, yet it was void. The board has power “to direct and control the prosecution and defense of all suits to which the county is a party.” (Political Code, Sec. 4230.) If it has power to employ counsel under this statute, which we do not decide, it has none whatever so to do in a case to which the county is not a party. It must not exceed the authority vested in it by Statute. (State ex rel. Lambert v. Coad, 23 Mont. 131, 57 Pac. 1092; Lebcher v. Board of Commissioners of Custer County, 9 Mont. 315, 23 Pac. 713.) It is conceded that Broachvater county was not a party to the actions in which Carleton rendered the services in question.

We are therefore of the opinion that the judgment and order should be reversed, and the cause remanded.

PeR Cueiam:.- — For the reasons given in the foregoing opinion, the judgment and order are reversed, and the cause remanded.


author: MR. COMMISSIONER POORMAN

text:
    STEVENS et al., Respondents, v. CURRAN et al., Appellants.
    (No. 1,591.)
    (Submitted May 29, 1903.
    Decided June 8, 1903.)

      Chattel Mortgages — Possession by Mortgagor — Effect—Fraudulent Mortgage — Rights of Purchasers — Lien—Conversion —Demand—Complaint.

      1 Findings of fact by a trial court, based on conflicting evidence, will not be disturbed on appeal.
    2. Where a chattel mortgagee permitted tbe mortgagor to retain possession of the goods, and to sell and dispose of them without accounting for the proceeds to the mortgagee, tbe mortgage was fraudulent as to creditors and subsequent purchasers from the mortgagor in good faith.
    3. Where it was claimed that a chattel mortgage was void as to subsequent purchasers of the goods mortgaged, by reason of the fact that the mortgagor was permitted to remain in possession and sell the goods without accounting to the mortgagee, extrinsic evidence was admissible to show the conditions actually existing and the conduct of the parties with reference to the mortgaged property.

      4 Where plaintiffs purchased certain goods covered by a chattel mortgage from the mortgagor, and retained actual possession of them, and the court found that the sale to plaintiffs was valid, it was not necessary for plaintiffs to obtain a judgment or levy an attachment on the goods as a condition precedent to their right to assail the mortgage in an action against the sheriff for seizing the goods thereunder.
    5 where the act of a sheriff in seizing goods under a mortgage from plaintiffs, who were purehesers thereof from the chattel mortgagor, was wrongful in the beginning, no demand was necessary to entitle plaintiffs to sue the sheriff for conversion of the goods.
    6 In an action for conversion, an allegation that defendants converted and disposed of the property to their own use is an allegation of fact sufficient, in the absence of a special demurrer, to sustain a judgment for plaintiff.
    7. In determining . -e rights of third persons, the instrument and the conduct of the parties thereto must be looked to, irrespective of the intention of the mortgagor or mortgagee.

      Appeal from District Court, Missoula County; F. K. Woody, Judge.

    ActioN by A. M. Stevens and others against D. T. Curran, sheriff, and others. From a judgment in favor of plaintiffs, and from an order overruling a motion for a new trial, defendants appeal.
    Affirmed.

      Mr. W. J. Stephens, for Appellants.
    The sheriff can justify the taking of this property under process and is not liable without a demand for the return of the property before suit. Process regular is always justification without demand. Where the taking is tortious no demand is necessary. But the taking of property under Section 3872 of the Civil Code is not tortious. By that section the officer is commanded and it is made his duty to take the property described in the mortgage wherever found, not confined even from the defendant, but wherever found. He acts under the mortgage just as he would under a writ of replevin. In both instances there is a taking of specific chattels by authority of law, and in discharge of his duty. If the officer takes property in-replevin, he is under the statute, Civil Procedure, Sec. 854, entitled to a demand by the claimant.
    Because the plaintiff brings an action of trover instead of replevin, it does not change the nature of things. One action for tbe wrongful taking of specific articles and tbe other damages for tbe wrongful taking of tbe same chattels. In both instances tbe unlawful or wrongful taking is the gist of tbe action. It is laid dowtn as a rule by some courts that in an action for tbe recovery of personal property, tbe plaintiff makes bis- case when be shows title or right of .possession in himself, and an unlawful0 detention by tbe defendant, but in all these cases tbe rule is only applied when a third party, not an officer acting under special process against the thing, takes and detains tbe property. Foss v. Whitney, 7 Mont. 385, bolds that taking possession of mortgage chattels is an official taking. On demand general, see Daniel v. Gorham,, 6 Cal. 44; Taylor v. Seymour, O' Id. 512; Rilley v. Scannell, 12 Id. 73; Bacon v. Robson, 53 Id. 399; Laurence v. Coyne, 62 Id. 124. And on justification by an officer, see Ballis et al. v. Montgomery ei al., 50 N. Y. Hep. 353. AlsoManning, Bowman & Co. v. Kennanet et al., 73 N. Y. Rep1. 46; Fleming v. Wells, 65 Oal. 366; Laurence v. Coyne, 62 Id. 124.
    Again, tbe plaintiffs are not in a position to attack tbe mortgage for fraud as creditors or subsequent purchasers for value. A general creditor whose claim is not merged in a judgment cannot attack tbe mortgage for fraud. (People's Savings Banlc v. Bates, 120 IT. S. Sup. Ct. Rep. 556; Geery et al. v. Geery et al., 63 N. Y. 253; Southard v. Benner, 72 Id. 424; Jones ei al. v. Graham, 77 Id. 628; Clute v. Steele, 6 Nev. 335.)
    Nor can they do soi as subsequent purchasers. Tbe statutory use of tbe words subsequent purchaser means a subsequent purchaser in good faith, that is for a valuable consideration without notice. There must be a new consideration at the time of tbe transfer and not merely a settlement of a pre-existing indebtedness. (Kohl v. Lynn, 34 Mich. 360; Jones et al. v. Graham, 77 N. Y. 628 ; People's Savings Bank v. Bates, 1201 U. S. 556, and cases cited; Clute'v. Steele, 6 Nev. 335.)
    Tinder out statute fraudulent intent is a question of fact and not one of law. Being a question of fact, that issue should have been raised by tbe pleadings. The pleadings raise no such issue; hence no extrinsic evidence should have been admitted on the question. (Territory v. Virginia* Road Go., 2 Mont. 100, 101, 109, qnd cases cited therein; also, Furcy v. Sabin, 10 Cal. 28; Jerome v. Stebbins, 14 Id. 451; Green, v. Palmer, 15 Id. 415; Tessot v. Darling, 9 Id. 285; Levinson, v. Schwartz, 22 Id. 229.)

      Mr. J. M. Dixon, for Respondents.
   MR. COMMISSIONER POORMAN

prepared the opinion for the court.

This is an action in conversion, originally commenced in a justice court of Missoula county, and taken by appeal to the district court of said county, where a trial was had by the court sitting without a jury, and judgment was rendered for plaintiffs. From this judgment, and the order of the court overruling a motion for a new trial, the defendants appeal.

The findings of fact made by the trial court are to the effect that one Mae Carrier, who was at that time engaged in the mercantile business at the city of Missoula, borrowed $500 from defendant W. I. Stephens, for which she gave her promissory note, and at the same time executed as security for payment of said note a chattel mortgage on her stock of merchandise, with a provision that the mortgage should extend to certain other articles of merchandise and store fixtures to be thereafter purchased by the mortgagor; that the mortgage further provided that the mortgagor might remain in possession of the mortgaged property and carefully use the same, but that she should not sell or dispose of said property, or any part thereof, or allow it to be taken from her possession by legal process or otherwise; that the mortgagor, after the execution of the mortgage, remained in the possession of the stock of merchandise, and sold and disposed of the same in the usual course of trade, and purchased other goods, and added to the stock in her store; that the defendant Stephens had full knowledge of the sale of the merchandise, and knew of the manner in which the mortgagor was conducting tbe business and disposing of tbe merchandise, and that be made no objection to tbe same, but acquiesced therein; that no provision was made in tbe mortgage for an accounting by tbe mortgagor for any of tbe proceeds of tbe property sold, and that no part of tbe proceeds was applied to tbe payment of tbe debt secured by tbe mortgage, except tbe payment of tbe interest on tbe note; that tbe mortgagor, after tbe execution of tbe mortgage, continued, with tbe knowledge of defendant Stephens, to conduct tbe business and to sell tbe goods in tbe same manner as though tbe mortgage bad not been executed; that tbe plaintiffs purchased from tbe said mortgagor, while she was so conducting tbe business, certain goods, wares and merchandise, and by their agent took actukl possession of tbe goods so purchased; that while they were in such possession, and after such purchase bad been completed, tbe defendants Curran and Violette, acting as tbe sheriff and undersheriff of- tbe county, and over tbe protest of tbe plaintiffs, took tbe goods from tbe plaintiffs under said chattel mortgage, at tbe request of tbe defendant Stephens, tbe mortgagee. At tbe time of tbe seizure tbe plaintiffs notified tbe sheriff that tbe mortgage was void as to tbe goods so purchased by them, but were informed by tbe sheriff that bis duty required him to take- possession of tbe goods, and that they could bring suit against him or defendant Stephens to recover tbe same. It further appears from tbe record that tbe sheriff is still bolding these goods.

Tbe findings of the court are based either upon admissions by tbe parties, or upon evidence with respect to which there is substantial conflict; and, as has been repeatedly held by the supreme court of this state, cannot be disturbed under such circumstances. (Merchants’ Nat'l Bank v. Greenhood, 16 Mont. 430, 41 Pac. 250, 851; Sanford v. Gates, Townsend & Co., 21 Mont. 288, 53 Pac. 749.)

It is claimed by tbe respondents that tbe mortgage is fraudulent, as to creditors and subsequent purchasers in good' faith, by-reason of tbe mortgagor being permitted to remain in possession of tbe goods, and' to sell and dispose of them without making an accounting to tbe mortgagee. The appellants contend that the mortgage is valid on its' face, and that by its terms the sheriff had the right to seize the goods, and that respondents could not attack the mortgage until they had first, obtained a judgment, and that a demand on the sheriff was necessary before an action could be maintained.

In Rocheleau v. Boyle, 11 Mont., on page 469, and 28 Pac., on page 878, the court, in passing on the question as to the validity of a mortgage, where the mortgagor remained in possession and disposed of the goods, says : “If a mortgage of goods be made, as provided by statute, leaving possession with the mortgagor, and it be understood, agreed, or knowingly permitted (for, if it is knowingly permitted, it is understood and agreed) to the mortgagor to place the mortgaged goods on sale, not subject to the mortgage, to be sold, carried away, or consumed, and to use the proceeds without reference to the mortgage, this arrangement annuls every vital element of the mortgage, so far as concerns the goods to. which such arrangement or permission extends. The mortgage, under such circumstances, becomes a mere sham, a mere appearance, a delusion, asserting in form what is not in fact, as admitted by the conduct of the parties. The possession does not remain. Nor does the property remain. It is shifted over to those who will come and buy, and is carried away without respect to the mortgage; * * * and we think there ought to be no-hesitation in holding the mortgage void as to property so dealt with, or, in other words, that such property is put out from under such mortgage by the conduct of the-parties in relation to it.” This is in effect a holding that the mortgage, while valid as between the parties, has by the conduct of the parties been released as to the property sold by the mortgagor.

Extrinsic evidence is admissible to show conditions actually existing, and the conduct of the parties with reference to the mortgaged property. It is true, the statute has been slightly changed since the decision in Rochelean v. Boyle, but no change has been made conflicting with the doctrine announced in that ease, as above quoted! It is likewise true that a prowling creditor cannot attack a conveyance or sale on the ground of fraud; but, whenever the creditor acquires a lien on the goods, he may then attack the conveyance or the sale, in the protection of his hen and his rights.

The plaintiffs claim these goods .as purchasers. They obtained actual possession of them. The sale to them was declared by the court to be valid, and under such circumstances it was not necessary for themi to obtain judgment or levy an attachment as a condition precedent to assailing the mortgage. (Westheimer v. Goodkind, 24 Mont. 90, 60 Pac. 813.)

Had this mortgage contained a provision that the mortgagor was to account to the mortgagee for the proceeds of sales made, the doctrine as announced in Noyes v. Ross, 23 Mont. 425, 59 Pac. 367, 47 I. R. A. 400, 75 Am. St. Rep. 543, might apply; but the mortgage contains no such provision, nor does the evidence establish that there was any agreement or understanding that there should be any such accounting, or that any accounting ever was made.

The taking by the sheriff of these goods from the purchasers, the plaintiffs, Was wrongful in the beginning, and in an action of this kind, and under such circumstances, a demand is not necessary prior to the bringing of suit.

In Daggett v. Gray, 110 Cal. on page 171, 42 Pac. on page 568, which was an action in conversion, the court says: “If the relation of the defendant to the property is such that a previous demand is essential in order to establish conversion - on his part, proof of such demand must be made at the trial; but the demand need not be alleged. The allegation that the der fondants ‘converted and disposed of the property to their own use’ is the allegation of a fact sufficient, in the absence of a special demurrer, to sustain a judgment. Upon the trial of an issue, on this averment, the plaintiff would be at liberty to introduce evidence of a demand and refusal, if such evidence were sufficient or necessary to establish the conversion; and he would also,' under this averment, be authorized to offer evidence that the defendants had sold or otherwise dealt with the property in repudiation of the claim of the plaintiff.” The complaint in this action contains this specific allegation, and comes clearly wihin the decision in the case just quoted. (See, also, 21 Ene. P. & P. 1083.)

There is no contention made in this case that there was any intent on the part of the defendants or the mortgagor to defraud creditors or subsequent purchasers; but the instrument and the conduct of the parties thereto must be looked to in determining the rights of third persons, irrespective of the intention of the mortgagor or the mortgagee. The mortgagee’s intention undoubtedly was to assist the mortgagor, and to enable her to carry on her business and to add to her stock of goods and he probably relied more upon her ability to pay than he did upon enforcing payment under and by virtue of the terms of his mortgage. His good intention in the matter is not questioned, but the principles of law involved have been so long established that we cannot recommend that the court now disturb them.

We are therefore of the opinion that this judgment should be affirmed.

Pel, CukiaM. — For the reasons given in the foregoing opinion, the judgment of the court below is affirmed.


author: MR CHIEF JUSTICE BKANTLY,

text:
    DAHLMAN, Appellant, v. DAHLMAN et al., Respondents.
    (No. 1,593.)
    (Submitted June 1, 1903.
    Decided June 15, 1903.)

      Descent and Distribution — Bights of Widow — Ileir of Husband — Dower—Election—Merger.

      The wife’s right to dower or election under Sections 228 and 236 (Civil Code), are separate from her rights as an heir of her husband under Section 1852, and hence the fact that she participated in the distribution. of the estate as an heir of her husband does not .constitute a waiver of the right of election to take one-half of the residue after payment of debts, under Section 236.

      Appeal from DistrictI Court, Jefferson County; M. H. Parker, Judge.

    ActioN by Anna Dablman against Emil Dablman and another. From a judgment in favor of defendants, plaintiff appeals.
    Reversed.
    STATEMENT OE THE CASE.
    This proceeding was instituted by tbe plaintiff, tbe widow of Henry Dablman, deceased, under Section 3070-3081 of tbe Code of Civil Procedure, for tbe purpose of having allotted to her dower in tbe estate of her husband in accordance with tbe provisions of Sections 228-244 of .the Civil Code, relating to dower. Upon tbe pleadings filed in tbe district court, which consist of a complaint, answer, and replication, no issues of fact arise. That court, after consideration of tbe material facts therein alleged and admitted, rendered and caused to be entered a judgment in favor of tbe defendants, bolding, in effect, that tbe widow, under tbe facts stated, cannot claim one-half of tbe entire estate of her deceased husband by right of succession under Section 1852 of tbe Civil Code, and at tbe same time have tbe benefit of dower, or her election in lieu thereof, as provided in Section 236 of the same Code.
    The facts necessary to an understanding of tbe controversy are tbe following: Henry-Dablman died intestate in Jefferson ccunty on February 15, 1899, leaving surviving him bis widow, tbe plaintiff, and bis father and mother, tbe defendants. There were no children nor grandchildren. Tbe plaintiff was appointed administratrix, and, after qualifying, proceeded to the-discharge of her duties. Tbe estate consisted of a large amount of real and personal property. A portion of the real estate was in mines, which, at the death of' the intestate, were, and since that time have been, paying dividends. The fund accumulated from that source .amounts to $4,664.14 now in the hands of the administratrix. . After stating these facts, the complaint alleges: That the plaintiff has not assigned, waived, nor relinquished, nor in any manner abandoned, her dower in the said lands, or her interest in the rents, issues, and profits thereof; that her interest therein has not been assigned or set over to her; that she is entitled to and demands and elects to take one-half of the said lands, with -the rents, issues, and profits thereof accruing since the death of her husband, absolutely and in her own right, subject to the payment of the debts of the estate, as provided in Section 236 of the Civil Code, without prejudice to her rights as heir of her husband in the residue of the estate; and that the plaintiff has demanded of the;defendants that her interest in the said lands and the accrued rents, issues, and profits thereof be set over to her, but that the defendants have refused her said demands, or to give their consent that the court having jurisdiction of the administration of the estate may accord to her her rights in the premises. It is admitted that there has been a partial distribution of the estate, and that the plaintiff shared therein, talcing a one-half interest in the portion distributed by virtue of her right as heir of her husband.
    As before stated, upon these facts the court held that by virtue of her participation in the distribution of the estate as heir of her husband she thereby waived her right of election to take one-half of the residue of the estate as dower under the provisions of Section 236 of the Civil Code, supra. From the judgment rendered, the plaintiff has appealed.

      .Messrs. Walsh & Newman, for Appellant.

      Mr. George F. Qowan, and Mr. A. J. Graven, for Eespond-ents.
   MR CHIEF JUSTICE BKANTLY,

after making the foregoing statement, delivered the opinion of the court.

Tbe only question submitted to tbis court for decision is ■whether, when the husband die's intestate, without children or grandchildren living surviving his widow and one or both parents, the widow is entitled to one-half of the estate under the statute relating to succession, in addition to her right of dower, or election in lieu thereof, under Section 236 of the Civil Code, supra. The solution of this question depends upon a construction of Sections 228, 236, and 1852, supra, in the light of other provisions of the Code touching the subjects to which these sections relate. These provisions are the following:

“Sec. 228. A widow shall be endowed of the third part of all lands whereof her husband was seized of an estate of inheritance at any time during the marriage, unless the same shall have been relinquished in legal form.. When a wife joins with her husband in the execution of any conveyance of land, she thereby relinquishes her inchoate right, and shall not thereafter have dower therein, except in case of sale under mortgage signed and executed by herself and husband she shall have a right of dower in the surplus. Equitable estates shall be subject to the widow’s dower, and all real estate of every description, contracted for by the husband during his lifetime, the title to which may be completed after his decease.”
“Sec. 236. If a husband die, leaving a widow, but no children, nor descendants of children, such widow may, if she elect, have, in lieu of her dqwer in the estate of which her husband died seized, whether the same shall have been assigned or not, absolutely and in her own right, as if she were sole, one-half of all the real estate which shall remain after the payment of all just debts and claims against the deceased husband: provided, that, in case dower in such estate shall have been already assigned, she shall make such new election within two’ months after being notified of the payment of such claims and debts.”
“See. 1852. When any person having title to any estate not limited by marriage contract, dies without disposing of the estate by will, it is succeeded to and must be distributed, unless otherwise expressly provided in this Code and the Code of Civil Procedure, subject to the payment of bis debts, in the following manner: * * * (2) If the decedent leave no issue, the estate goes one-half to the surviving husband or wife, and the other to the decedent’s father and mother in equal shares, and if either be dead, the whole of said half goes to the other. * *”

It will be observed that Chapter III, Title I, Part III, Division 1, of the Code of which Sections 228 and 236 are a part, treats exclusively of the obligations, rights, and duties of the husband and wife, including the dower rights of the wife. The express provision of Section 228 is that she shall be endowed of the third part of all lands wherein her husband was seized of an estate of inheritance at any time during the marriage, including equitable and all other estates in land of whatever description. This provision is without restriction or limitation. It attaches to all lands falling within the description, unless the wife shall have relinquished her right in legal form. This may be done only by her deed executed and duly acknowledged in conformity with the law, or by the acceptance by her of a devise or bequest under the will of her husband under Section 234, or by a jointure settled upon her, with her assent, by her husband, before the marriage, under the provisions of Sections 239 and 240. Title VII, Part IV, Division II, of which Section 1852 forms a part, deals exclusively with, the subject of succession, and neither has nor purports to have anything to do with the rights, duties, and obligations of the husband and wife. The aims and purposes had in view by the legislature in enacting these different parts of the Code and the specific provisions therein are wholly separate and distinct from each other. The former recognizes the common-law right of dower. At the same time it extends this right to estates to which it did not attach at the common law, and enlarges the wife’s right by the election granted to her under Section 236. By this provision she has the absolute right to take in fee, in lieu of the common-law dower, one-half of all the real estate, subject to the payment of debts lawfully due from the estate. This estate falls to her, not as heir, or by will of her husband, but by virtue of her marital right, and without regard to the law relating to the rights of heirs, or to any will made by the husband. After the right has become fixed by the death of the husband, she can assert it despite the rights of creditors, heirs, or any person whomsoever; and the only restriction upon the right of election granted under Section 236 is that there be no children or grandchildren, and that, in case she chooses the second alternative, the rights of the creditors must first be satisfied. The provisions of Title VTI, referred to, have to do with the rights of heirs only, and the course of succession to property where the owner dies without a will. This title grants to the widow the right of succession, and this right given to her rests upon exactly the same ground as that of any other heir. Nor does any provision therein impose, directly or by implication, any condition or restriction upon the right of dower. The two rights, though conferred by statute, rest upon different principles, and exist independently of each other; and the right of election given the widow under the circumstances contemplated by Section 236 has no connection with the right to take as heir one-half of the residue of the estate, real and personal, after the claims of creditors are satisfied. It is true that when the fee to her portion in lands has vested in her under the right of succession, the dower right in such property is pro tanto merged in the fee; but this in no wise affects her right to dower in the residue of the estate. This descends to the heirs subject to her rights, and, though she falls within the class of those who, under the statute, are denominated “heirs,” this does not affect her rights conferred by the provisions of other sections which have no connection whatever with the law of succession. It follows that the district court was in eixor in holding as it did.

The judgment is reversed, and the cause is remanded, with directions to proceed according to the views herein expressed.


author: MR. OHIEE JUSTICE BRANTLY

text:
    In re DAHLMAN’S ESTATE.
    (No. 1,607.)
    (Submitted June 1, 1903.
    Decided June 15, 1903.)

      Probata- — Jurisdiction of Court — Bower.
    When a court is exercising its- probate jurisdiction, it has no power with reference to dower, and can make no orders affecting a widow’s dower right.

      Appeal from- District Court, Jefferson County; M. H. Par-leer, Judge.

    AnNa Dahlman appeals from an order of final distribution in. the estate of Henry Dahlman.
    Affirmed.

      Messrs. Walsh & Newman, for Appellant.

      Mr. George F. Cowan, and Mr. A. J. Craven, for Respondents.
   MR. OHIEE JUSTICE BRANTLY

delivered the opinion of the court.

This matter comes before this court upon an appeal from an order of final distribution. At the time the order was made, Anna Dahlman, appellant in her own right, requested that the court embody in it a statement that it was made without prejudice to her rights under the provisions of the Civil Code relating to dower, and her right of election in lieu thereof under Section 236 of that Code. This the court refused to do, because the judge was of the opinion that, having elected to share in the estate as heir under the statutes relating to succession (Civil Code, Section 1852 et seq.), the appellant had thereby waived her claim to dower.

Whether the court erred in refusing to’ embody in the order this reservation is the only question upon which a decision is sought. The rights of the appellant in the premises were settled and determined hy this court in the case of Dahlman v. Dahlman (this day decided), ante p. 373, 72 Pac. 748. We are of the opinion that she suffered no prejudice by the order as made. We have not been able to find any provision in the Title (Title XII) of the Code of Civil Procedure relating to probate proceedings, giving to the court, when sitting in probate, jurisdiction of any matter touching the admeasurement of dower. The jurisdiction upon this subject is conferred upon the court as a court of general jurisdiction, and it must be invoked by an independent action under the provisions of Title XIII of the Code of Civil Procedure. The remedy therein provided is, we think, exclusive. The court, when exercising its probate jurisdiction, has, therefore, no power with reference' to dower, and no order which it may make touching the distribution of property during the course of administration can, of itself, affect the right of dower in any lands to which the right has attached, or any election which the widow has with reference to1 it. She may bring her action to have her dower allotted to her, notwithstanding the order of distribution makes no> mention of her right. This being the case, the court committed no error in making the order, though the reason for its action in the premises was not correct. The order is therefore affirmed.

Affirmed.


author: MR. JUSTICE! HO'LLOWAY,

text:
    GREENE, Respondent, v. MONTANA BREWING COMPANY, Appellant.
    (No. 1,599.)
    (Submitted June 3, 1903.
    Decided June 15, 1903.)

      Bankruptcy — Preferences — Knowledge of Creditor — Judgments — Satisfaction Before Bankruptcy — Proceeds of Execution Bale — Recovery by Trustee — Complaint — Appeal— Transcript — Unnecessary Mattel-Dismissal of Appeal — ■ Cost of Printing — Rules of Supreme Court.

      1 Bankruptcy Act (Act of Congress July 1, 1898), Section 60b, provides that if a bankrupt shall have given a preference within four months before the filing of the petition, or after filing the petition and before adjudication, and the person receiving it shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, etc. Held,' that where a petition to avoid an alleged preference failed to allege that the preferred creditor had reasonable cause to believe that the bankrupt by suffering judgment to be recovered intended to give such creditor a preference, within the meaning of the bankruptcy act, it was insufficient, since the burden of proof was on the petitioner to sustain such proposition.
    2. Bankruptcy Act (Act of Congress July 1, 1898), Section 67f, provides that certain liens, including judgment liens obtained through legal proceedings against an insolvent within four months prior to the filing of a bankruptcy petition against him, in case he is adjudged a bankrupt, shall be void, and the property affected shall pass to the trustee. Held, that such section affects only the lien of a judgment recovered within four months before the filing of a bankruptcy petition, and not the judgment itself, and hence, where property had been sold under execution, and the judgment satisfied, before the filing of the petition, there was no judgment lien which could be released, within such section, and the trustee was not entitled to recover against the creditor thereunder the proceeds of the property so sold.
    3. The unnecessary incorporation of formal parts of pleadings, writs, and other papers in the transcript on appeal, in violation of Supreme Court Rule VII, is not ground for dismissal of the appeal.

      4 where appellant unnecessarily incorporated formal parts of pleadings, writs and other papers in the transcript on appeal in violation of Supreme' Court Rule VII, he was not entitled to recover the expense of printing that portion of the transcript so incorporated.

      Aiipeal from District Court, Cascade County; J. B. Leslie, Judge.

    ActioN by Howard S. Greene, as trustee in bankruptcy of Chris Peterson, against the Montana Brewing Company. Prom a judgment in favor of plaintiff, defendant appeals.
    Reversed.
    STATEMENT OR THE CASE.
    This is an action in conversion brought by a trustee in bankruptcy against the Montana Brewing Company to recover the sum of $534.25. The complaint alleges that on August 17, 1899, the Montana Brewing Company commenced certain actions against one Chris Peterson; that writs of attachment ivere issued, and certain personal property belonging to Peterson seized thereunder; that judgments were recovered by the brewing company against Peterson, executions issued, and on August 28, 1899, the attached property was sold for $534.25, and the money realized from such sale was paid over to tbe judgment creditor in satisfaction of its judgments, pro tanto, at least; that on October 31, 1899, a petition in involuntary bankruptcy was filed against Peterson in the .United States District Court for Montana, and on December 18, 1899, he was adjudged a bankrupt; that on January 2, 1900, the plaintiff (respondent), Greene, was appointed trustee of such bankrupt estate. To this complaint a demurrer was interposed on the ground that the complaint does not state facts sufficient to constitute a cause of action. The demurrer was overruled, and the defendant (appellant) answered. On the trial the defendant objected to the introduction of any evidence on the part of the plaintiff, upon the ground that the complaint does not state f¿cts sufficient to constitute a cause of action. This objection was overruled. The trial court instructed the jury to return a verdict in favor of the plaintiff for the amount of his demand, and from a judgment entered for the amount of the verdict this defendant appeals.

      Mr. William 0. Downing, for Appellant.
    The complaint in this case fails to state a cause of action against the defendant, and the court ought not to have overruled the demurrer to the complaint.
    “To entitle an assignee in bankruptcy to successfully attack a preference given to the creditor, as being in fraud of the bankruptcy law, he must bring himself entirely within the statutory provisions.” (Annibal Assignee, etc. v. Heacock, 2nd Federal, page 169; In re Eggert, 98 Fed. 843.)
    “The burden of showng that a creditor of the bankrupt has acquired an illegal preference, is upon the assignee seeking to avail himself of that fact. He must show, by a fair preponderance of proof, that the debtor was insolvent, or in contemplation of insolvency; that the security was designed to give a preference, and that the creditor had a reasonable cause to- believe the insolvency and knew the security was designed to give a preference.” (Grain v. Penny, 2d Fed. page 18; Black on Bankruptcy, 1898, page 189, and cases cited; In re Nelson, 98 Fed. page 76; Samuel V. Mays el al. v. Frederick A. Fritton, 20th Wallace, 414-420; Clarke v. Iselin, 21st Wallace, page 360-878; In re Blair, 4 Am. Bankruptcy Bepts. 220; Collier on Bankruptcy, 3d Ed., 346-347; Levor v. Seiler, 8 Am. Bankruptcy Bepts. 459; see, also-, 102 Fed. 987.)

      Mr. George H. Stanton, for Bespondent.
    The first error assigned is that the court committed error in overruling the appellant’s demurrer to the complaint. This demurrer was based upon the alleged ground that the complaint failed to state facts sufficient to constitute a cause of action. The complaint sets forth concisely all the facts out of which this controversy has grown, and any other allegations in the complaint would have been surplusage. Perhaps the easiest way to answer the appellant’s contention respecting the alleged error committed in overruling the demurrer is to quote the language of the learned district judge found in his memorandum at the foot of the order overruling the demurrer, which memorandum is as follows: “The foregoing order is based upon the provisions of Section 67 of the Bankruptcy Act, and Subdivision F of said section, which provides, among other things, that all judgments obtained through legal proceedings against a person who is insolvent at any time within four months prior to the filing of a petition in bankruptcy against him shall be deemed null and void in case he is adjudged a bankrupt. In the case at bar the judgment was recovered within’four months prior to the judgment debtor being adjudged a bankrupt. Under the provisions of said subdivision of said section, the judgment is declared to be a nullity. This section has been held to be in full force in the case In re Richards, reported in 96 Fed. Bep. 935; In re Vaughan, 97 Fed. Bep. 560 ; In re Higgins, 97 Fed. Bep. 775. By Section 70 of the Bankruptcy Act the trustee is vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt with all the powers which the bankrupt might have exercised for his own benefit. The judgment of the defendant against the bankrupt Peterson by operation of law being a nullity, the trustee under the'foregoing provisions would have full power to recover the proceeds, arising from the enforcement of such void judgment. This seems to be the construction of the Bankruptcy Act touching the question involved in this case by the federal courts. In re Kenney, 97 Bed. Rep. 557, the court says: ‘This provision (referring to Subdivision B of Section 67) shows incontestably that no preference can be acquired by levy and sale within four months of filing the petition in bankruptcy; but that though the bona fide purchaser at the sale will be protected, the proceeds must stand in lieu of the property sold, and that the judgment creditor’s right under such levy will pass to the trustee in bankruptcy.’ The same conclusion substantially is reached in In re Hammond, 98 Bed. Rep., at top of page 863; see, also; In re Franks, 96 Bed. Rep. 635 ; In re Felle Bath, 95 Bed. Rep. 121.”
   MR. JUSTICE! HO'LLOWAY,

after making the foregoing statement, delivered the opinion of the court.

The plaintiff must recover, if at all, by virtue' of Section 60b or Section 67f of the Bankruptcy Act of 1898 (Act July 1, 1898, c. 541, 30 Stat..562, 565 [U. S. Comp. St. 1901, pp. 3445, 34501] ) ; and the complaint must be tested by the provisions of those sections, which are as follows:

“Sec. 60b. If a bankrupt shall have given a preference within four months before the filing of a petition, or after the.filing of the petition and before the adjudication, and the person receiving it, or to be benefited thereby, or his agent acting therein, shall have had reasonable cause to believe that it was intended thereby to give a preference, it shall be voidable by the trustee, and he may recover the property or its value from such person.
“See. 67f. That all levies, judgments, attachments, or other liens, obtained through legal proceedings, against a person who is insolvent, at any time within four months prior to the filing of a petition in bankruptcy against him, shall be deemed null and void in case he is adjudged a bankrupt, and the property affected by the levy, judgment, attachment, or other lien shall be deemed wholly discharged and released from the same, and shall pass to the trustee as a part of the estate of the bankrupt, -x- * *>>

Under the terms of Section 60b, above, not every preference is voidable at the election of the trustee, but only such as shall have been given within four months before the filing of the petition in bankruptcy, or after its filing and before adjudication, and wherein the person receiving the preference, or to be benefited thereby, shall have had reasonable cause to believe that it was intended to give such preference. In order, then, that- the trustee shall prevail, he must show, first, that the preference was given within four months before the filing of the petition; and, second, that the Montana Brewing Company had reasonable cause to believe that Peterson, in suffering judgments to be recovered against him in August, 1899, intended thereby to give appellant a preference, within the meaning of the Bankruptcy Act; and the burden of proof is upon the trustee to sustain both of these propositions. (Levor v. Seiter, 8 Am. Bankr. R. 459, 74 N. Y. Supp. 499.) If these facts must be proved in order to entitle the trustee to recover, the facts must be alleged in his complaint, in order to admit the proof; and, in the absence of the allegation that the Montana Brewing Company liad reasonable cause to believe a preference was intended, the complaint fails to state a cause of action under Section 60b.

Section 67f provides that certain liens including judgment liens obtained through legal proceedings against an insolvent within four months prior to the filing of the petition in bankruptcy, shall, in case he is adjudged a bankrupt, be void, and the property affected shall be discharged from the same, and shall pass to the trustee for the benefit of the bankrupt estate. It is not the judgment'which becomes void, but the lien of the judgment becomes ineffective to longer hold the property, and it passes to the trustee. Such is tbe manifest meaning of tbe section, wben considered as a, whole. In fact, tbe subject-matter of tbe section is liens, not judgments. (In re Pease, 4 Am. Bankr. R. 547.)

Tbe complaint alleges that prior to tbe filing of tbe petition in bankruptcy tbe property of Peterson bad been sold under execution, bad gone into tbe bands of innocent third parties, and tbe money bad been paid to tbe judgment creditor in satisfaction of its judgments. When tbe petition in bankruptcy was filed, then, there was no property of tbe bankrupt estate subject to a judgment lien which could be released from tbe same, or which could pass to tbe trustee for tbe benefit of tbe bankrupt estate. The judgment bad been satisfied, and tbe matter entirely closed, before any bankruptcy proceedings were initiated, and tbe provisions of Section 67f therefore have no application whatever to tbe facts of this case. In Levor v. Better, above, the same state of facts was presented as in tbe case at bar; and tbe Supreme Court of New York held that tbe trustee could not recover under Section 60b, for failure to- prove that tbe judgment creditor of tbe bankrupt bad reasonable cause to believe that tbe bankrupt, by suffering judgment to be taken against him, intended thereby to give a preference, and further held that, as tbe money bad been paid over to tbe judgment creditor before tbe bankruptcy proceedings were instituted, tbe provisions of Section 67f did not apply.

There is nothing in tbe views herein expressed which conflicts with tbe decisions in In re Kenney (D. C.), 95 Fed, 427, or In re Blair (D. C.), 102 Fed. 987.

We have, therefore, a case which does not fall within tbe provisions of Section 67f, and a complaint which does not state facts sufficient to constitute a cause of action under tbe provisions of Section 60b.

A motion to dismiss this appeal has been interposed upon tbe ground that tbe appellant has violated Bule VII of tbe rules' of this court in incorporating in tbe transcript the formal parts of tbe pleadings, writs, and other papers, wben no* question arises in respect to tbe same, and in incorporating in tbe transcript exhibits used in the trial court, when no question of any character is predicated upon them. There are other grounds of the motion which it is not necessary to consider. • In so far as Subdivision 5 of Bule VII has been violated by incorporating in the transcript mere formal parts of papers, the appellant will not be permitted to recover as part of his costs the expense of printing that portion of the transcript thus encumbered. At least, one-third of the expense of printing the transcript was unnecessarily incurred. The motion to dismiss the appeal is denied.

Rehearing denied, July 14, 1903.

The judgment is reversed. The appellant will recover only two-thirds the expense of printing the transcript in this ease, together with such other costs as by law he is entitled to recover.