author: BRANTLY, C. J.

text:
    STATE ex rel. SHANAHAN v. LINDSAY, Judge, Defendant.
    [No. 1,371.]
    [Submitted March 27, 1899.
    Decided April 10, 1899.]

      Appeal from Justice — Judgment by Default.

    Constitution, Art. VIII, Sec. 23, grants a right of appeal from a justice to the district court in all actions. Code of Civil Procedure, Sees. 1760,1761, provides for appeals from judgments of justices’courts, and that there shall be no appeal from a judgment by default except on questions of law, or where the justice’s court abuses its discretion in setting aside, or refusing to set aside, a default judgment. Beid, that where a justice refuses to set aside a judgment by default, an appeal lies, and it is for the court to determine on the papers filed in the justice court as to whether the discretion of the justice has been abused.
    Application by the State, on the relation of Bernard Shanahan, for writ of mandamus to John Lindsay, judge of the Second Judicial District Court.
    Writ granted.
    Statement of the case by the Justice delivering the opinion.
    This is an application for a writ of mandate to compel Hon. John Lindsay, as Judge of the Second Judicial District Court in and for Silver Bow county, to hear and determine a motion to set aside a default judgment and entertain the appeal in a case entitled 1 'll. G. Slader, Plaintiff, v. Bernard Shanahan, Defend’cmt,” brought into the said court by appeal from the justice’s court of J. M. Lewis, a justice of the peace for Silver Bow county. Erom the record it appears that on February 4, 1899, a motion was made by the respondent, and submitted to the court, asking that the appeal be dismissed on the two grounds that the appeal had not been perfected in the time prescribed by law, and that the appeal was taken from a judgment by default. The motion was heard and overruled by Hon. J. B. Leslie, of the Eighth District, sitting for J udge Lindsay. On March 4th thereafter a motion was made by defendant, Shanahan, asking that the default be set aside, and that he be permitted to file his answer. In the notice of this motion, which, on the hearing, was treated as a formal motion, the grounds upon which relief was asked are not stated. It is stated, however, that the motion would be based upon the files and records of the justice’s court. An examination of these shows that the judgment appealed from was entered on December 15, 1898. On the 16th a motion was made in the justice’s court to open the default, and permit defendant to file his answer. The motion was supported by the affidavit of defendant, and was made within the time allowed by the statute. (Code of Civil Procedure, Sec. 1529.) This was heard and overruled by the justice on December 20th. The motion in the district court was heard on March 11th. On that day, after argument on part of defendant, the court made the following order : 1 'This day the motion to set aside the default entered in the justice’s court of J. M. Lewis, a justice of the peace in and for the Township of Walkerville, County of Silver Bow, State of Montana, and the judgment thereon, coming on regularly to be heard, counsel for the respective parties being present, (and) thereupon, after hearing argument of J. H. Healy, attorney for defendant, upon said motion, and due consideration thereof, the court held that, upon the showing in this case, appeal did not lie from a judgment by default therein entered, and that the court could not consider a motion to set aside such judgment, and that the said motion be and is overruled. ’ ’
    The affidavit of relator, after setting forth the facts in the statement preceding the foregoing order, then charges that: “In making this order, the respondent refused to grant the relator any relief on the said appeal, for the reason that there was no jurisdiction in him or in the said court to hear and determine any appeal from a judgment rendered by default in a justice’s court, either upon questions ox law appearing upon the face of the papers, or upon a motion to set aside a default judgment rendered in a justice’s court.” The record shows that the appeal was perfected within the time allowed by law.

      J. E. Mealy, for Relator.

      Chas. Kohl, for Defendant.
   BRANTLY, C. J.

In making this order the court said to relator in substance : “You are not to be heard in this court upon this appeal further than to enable this court to determine that your showing in the justice’s court was not and is not sufficient to warrant the setting aside of the default judgment. This determination has been reached. This court has no jurisdiction for any other purpose. Therefore you are not entitled to an appeal in this case. ’ ’ The question presented, therefore, is : has the district court refused to entertain the appeal for all purposes for which it should have been entertained? The Constitution, Article VIII, Section 23, grants the right of appeal “from justice’s courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law. ’ ’ The Code of Civil Procedure, Section 1760, provides : £ ‘Any party dissatisfied with a j udgment rendered in a civil action in a police or justice’s court, may appeal therefrom to the district court of the county, at any time within thirty days after the rendition of the judgment. ’ ’ This section also further provides how the appeal may be taken, but the right of appeal provided for is as broad as that granted by the Constitution, and extends to all cases without exception. Section 1761 provides : “All appeals from justices’ or police courts must be tried anew in the district court, on the papers filed in the justice’s or police court, unless the court, for good cause shown, and on such terms as may be just, allow other or amended pleadings to be filed in such action. The court may order new or amended pleadings to be filed. Each party has the benefit of all legal objections made in the justice’s or police court. When a judgment is reversed or set aside on a question of law arising in the justice’s or police court, the district court must either try the case anew or render a judgment. There is no appeal from a judgment by default rendered in a justice’s or police court, except on questions of law which appear on the face of the papers or proceedings, and except in cases when the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default or judgment. If the judgment by default is set aside, the district court must allow pleadings to be filed and try the case.5 ’ This latter section has to do with the procedure after the appeal reaches the district court, and upon the proper enterpretation of it turn the rights of the relator in this case. An examination of its provisions shows that the intention of the Legislature was that the procedure governing appeals should secure to the appellant a review in the district court of all the questions in the case which he has properly raised or reserved in the inferior court. All cases appealed must be tried anew, just as they were tried, or should have been tried, in the lower court. If an answer be filed, and a trial of fact had, then, on appeal, there must be a trial on the facts, upon the pleadings filed in the lower court, unless the parties are, upon cause shown, and upon just terms, permitted to file others, or the court orders others to be filed. If a demurrer be filed in the lower court, or a question of law be raised in any other proper way, this may be taken advantage of in the district court. If, in the district court, the judgment be reversed or set aside upon a question of law thus raised in the lower court, the district court must then try the case anew upon all the questions raised after pleadings have been filed, or must enter the appropriate judgment. To illustrate : If the complaint filed in the justice’s court does not state facts sufficient to constitute a cause of action, a question of law arises upon the face of the proceedings which may be reviewed in the district court. It is the duty of the district court to set aside the judgment and try the case after the issues have been properly made up. If the case involves a matter over which the justice’s court has no jurisdiction, upon appeal it is the dutyof the district court to set aside the judgment appealed from, and enter a judgment of dismissal. The latter part of this section seems at first glance to abridge the right of appeal; but in fact it does not, as is apparent if it be read according to the manifest meaning of it as follows: “An appeal lies from a judgment by default only on questions of law which appear upon the face of the papers or proceedings, or where the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default. ’ ’ The appeal lies. It is therefore the duty of the court to entertain it. It must try the case anew, just as the justice tried it, or should have tried it. If the questions of law presented are resolved in favor of the respondent, this is the end of the trial, except that the court must enter a judgment of affirmance. If there be a question of abuse of discretion in the justice’s court, this must be tried anew upon the papers filed in the justice’s court. If this question be resolved in favor of the respondent, judgment of affirmance must be entered. If the question or questions of law are resolved in favor of appellant, the judgment must be set aside, and the case tried anew upon an issue of fact made, or the case must be dismissed, and judgment entered in favor of appellant. If, again, the question of abuse of discretion be decided in favor of the appellant, pleadings must be filed, and the case be tried on all the issues made. This is the express provision of the remainder of the section.

We have remarked at length upon this section of the statute for the reason that there seems to be some misapprehension as to its scope and meaning, notwithstanding the construction given to it, as well as the similar provisions in the Compiled Statutes of 1887, in Gage v. Maryatt, 9 Mont. 265, 23 Pac. 337, and Maxey v. Cooper, 21 Mont. 11, 54 Pac. 562. The views here expressed are in conformity with those there laid down.

Under the construction given to this section by the district court, as shown by the order made in the case under consideration, the appeal did not lie for any purpose other than for the court to determine that it did not. Under this view, the district court could do nothing else but dismiss the appeal; and yet this could not be done for the reason that the court had already decided that there was no ground for dismissal. The district court should have entertained the appeal for a trial de novo as it was tried, or should have been tried, in the justice’s court. The court refused to entertain the appeal and enter the proper judgment. If no question of law appears on the face of tbe proceedings, or no abuse of discretion in tbe justice’s court in refusing to set aside tbe default be shown, justifying tbe court in setting aside tbe default judgment, then judgment of affirmance should have been entered; otherwise, the case should have been tried upon issues made by defendant’s answer, or judgment entered dismissing tbe case.

Let tbe peremptory writ issue, accompanied by a copy of this opinion, with directions to tbe district court to proceed in accordance with tbe views herein expressed.

Hunt and Pigott, JJ., concur.


source: Caselaw Access Project

author: HUNT, J.

license: Public Domain

text:
    QUINN’S ADMINISTRATOR, Respondent, v. QUINN, Appellant.
    [No. 1,061.]
    [Submitted March 7, 1899.
    Decided April 10, 1899.]

      Abatement and Bevival — Death, of Plaintiff- — Special Administrator— Partnership Bealty— Trial ly Beferee— Error Cured.

    1. Where the appointment of an administrator is delayed through a contest oyer the right to letters, the special administrator may be substituted in pending actions brought by decedent, under Code of Civil Procedure, Secs. 2500, 2504, authorizing a special administrator to collect and preserve the estate for the administrator to be regularly appointed, and for such purpose to commence and maintain suits and other legal proceedings as an administrator could do.
    2. Lands purchased with partnership funds for partnership purposes are firm property, though the title be taken in the name of one of the partners, or was conveyed to the partners as tenants in common.
    8. Error of a referee in refusing to permit a witness to be asked whether he is unfriendly to the adverse party is cured by afterwards permitting him to testify to facts which show him to be unfriendly.
    4. A referee’s refusal to rule on objections to a question is harmless, where the answer thereto is competent.
    5. A referee should rule upon objections offered to testimony as they are made, in order to give the objecting party the benefit of exceptions.

      Appeal from District Court, Silver Bow County, W. O. Speer, Judge.

      Action by Charles Quinn against Bernard Quinn for an accounting. From a decree directing an accounting to be had, and from an order denying a new trial, defendant appeals.
    Affirmed.
    Statement of the case by the Justice delivering the opinion.
    Charles Quinn, original plaintiff and respondent, sued Bernard Quinn, his brother, defeúdant and appellant, for a dissolution of a partnership alleged to have existed between the brothers since 1864, and to set aside and cancel a certain deed that had been executed and delivered by Charles Quinn to his brother, Bernard, conveying certain real estate in the city of Butte, and to have the said realty adjudged to be a part of the partnership assets.
    It is alleged by plaintiff that the agreement of partnership between himself and Bernard was a verbal one, and made for the purpose of conducting a freighting, mining, stock-raising and other business; that the partnership began in September, 1864, at Alder Gulch, and continued without interruption until September, 1893, during which years, it appears, the brothers acquired live stock, ranches and real estate. Charles alleges that on October 11,1887, he purchased from one Davis, for a consideration of $6,000, lots 4 and 5 in block 45 of the Butte townsite, and on June 11, 1888, purchased from B. P. Thorougbman et ah, for $1,000, lot 19 in block 51 of the Butte townsite, and that he purchased on September 4, 1888, from one Farlin, lot 5 of block 51 of the Butte townsite for $400, and on September 14, 1888, lot 4 of block 51 from the same person for $2,000. He also alleges that on September 2, 1893, he made and delivered a deed to Bernard for all his title and interest to lots 4, 5 and 19, in block 51, and to lots 4 and 5, in block 45, but he avers that the deed was executed and delivered to Bernard without any consideration, and that the consideration of $10,000 named in said deed was never paid by defendant to plaintiff, and that the real estate above described is owned and possessed by the partnership. He then pleads that the co-partnership doing business as Quinn Bros. is indebted to W. A. Clark & Bro., bankers, in the sum of about §7,000; that the co-partnership owns three certain promissory notes executed by Charles Langlois and wife to Quinn Bros., dated August 24, 1893, the same being, respectively, for the sums of §400, and §400, and §3,054.30; that the partnership owns a horse and buggy, two cutters and some harness, of the value of §1,500, in possession of defendant; and that Bernard collects the rents from the property, and refuses to divide or to account. Charles alleges that he is ready and willing to account for any promissory notes in his possession, and moneys paid thereon; that there can be no equitable division of the assets without great loss; and that, it being impossible for the brothers to conduct business together, the property should be divided by a sale.
    Bernard, the defendant, answered, denying any partnership. He admits the purchase of lots 4 and 5, in block 45, and of lot 19, in block 51, but denies that he and plaintiff are joint owners, or that the plaintiff has any interest therein. He denies the purchase from Farlin of lot 5, in block 51, and denies plaintiff’s right or title to said lots, or that they purchased lot 4, in block 51, but avers that he (Bernard) purchased said lot with his own money, as his own separate property, and that thereafter, by agreement, the brothers erected a building thereon jointly. Bernard admits that they are joint owners of a band of cattle in Fergus county. He also admits the execution and delivery of the deed of September 2, 1893, for certain real estate, but says that although he did not pay the consideration of §10,000, named in said deed, to plaintiff, yet it was paid for his use and benefit, for the purpose of liquidating an indebtedness then existing from Charles to the banking house of W. A. Clark & Bro. He denies that the property mentioned in said deed is a part of the partnership assets, or that the partnership is indebted to W. A. Clark & Bro. in the sum of §6,500, or any sum, but avers that the plaintiff was indebted to Clark & Bro. in the sum of §6,500, and that Clark & Bro. were about to commence suit against Charles for said sum; that the plaintiff then made a proposition to defendant that if he would assume the said indebtedness, and sign a joint obligation with the plaintiff to Clark & Bro., he (plaintiff) ■ would convey to defendant all his right, title and interest to the real estate mentioned in the plaintiff’s complaint, and included in the deed executed and delivered by plaintiff to defendant on Sept. 2, 1893. He then sets up that, relying upon the said agreement, and in consideration of the transfer of the said interest in the said property by plaintiff to him, he (defendant) made to W. A. Clark & Bro. on October 6, 1893, a promissory note for $6,810.39, with interest; that, after the making of the note, plaintiff Charles commenced suit against defendant to set aside and cancel the deed, and thereby prevented defendant from raising or borrowing the money on the said property with which to pay the note; that on June 27, 1894, Clark & Bro. commenced a suit upon the note, and attached all of the property described in the deed, and recovered judgment in November, 1894, for $7,348.48, which defendant is obliged to pay,- — plaintiff never having contributed anything towards the payment of the same. He then denies that plaintiff and defendant owned the Langlois notes referred to in the complaint, or that they owned the harness, etc., as alleged. He admits the collection of the rents; denies any demand by plaintiff therefor, or for an accounting, and says that the only joint interest of himself and plaintiff is'the band of cattle in Fergus county. He sets up that he cannot read or write, and that he never was in a position to deprive plaintiff of any money or property, owing to the fact that he was obliged to take plaintiff’s statements as to the correctness of all computations and accounts in their joint undertakings.
    Plaintiff filed a replication denying the matters set out in defendant’s answer, and averring that they had received certain amounts on the Langlois notes, and denying that plaintiff is indebted to defendant in any sum.
    The matter was referred to John Lindsay, Esq., as referee to take testimony, and report the same, with his findings, to the court. The referee, after hearing testimony, made findings substantially as follows:

      (1) That in September, 1864, at Alder Gulch, Mont., plaintiff and defendant formed a co-partnership for the purpose of dealing and trading in various property, real and personal, and that the said co-partnership has never been dissolved.
    (2) That thereafter, by their joint labors and funds, plaintiff and defendant acquired interests in common in personal and real property, in which they were jointly and equally interested.
    (3) That the original contributions were dissipated, and did not exist at the time of the acquisition of certain real property situate in Madison county, Montana.
    (4) That the products of the real property and certain live stock were invested in cattle in Fergus county, and in real estate in Silver Bow county, Montana, and that the present assets of the partnership were purchased with the proceeds of the sale of partnership property.
    (5) That the assets at the time of the commencement of this suit consisted of lots 4, 5 and 19, in block 51, lots 4 and 5, in block 45, of the Butte townsite, and of certain personal property, to wit: A band of cattle in Fergus county; also, a horse, buggy, cutter and some harness.
    (6) That the real estate and the improvements were paid for from the proceeds of the partnership property, and that the personal property was also acquired in the same manner.
    (7) That lot No. 4 in block 51 in Butte was purchased in the name of Bernard Quinn with the proceeds of the partnership property, and that the premises were and are partnership property.
    (8) That when this suit was commenced the co-partnership owed W. A. Clark & Bro., bankers, the sum of $6,269.39, which said indebtedness was put in judgment on November 16, 1894, and amounted to $7,348.48, and was and is the only debt of the co-partnership; and that $5,710 has since been paid thereon out of the proceeds of said partnership, and that there is now owing to W. A. Clark & Bro. by the said co-partnership the sum of $1,638.48 and interest.

      (9) That the judgment so obtained was an indebtedness of the co-partnership, excepting the sum of $300, the amount of a note executed by Charles Quinn and one H. Larouch in 1890, and excepting the sum of $75, the amount of a note executed by M. & JEL Larouch, dated in 1890, and excepting the sum of $150, the amount of a note executed by H. Larouch and the plaintiff, dated in 1890, and excepting the sum of $529.30, the amount of a note executed by plaintiff and H. Larouch in 1890, all of which notes should be charged to the account of Charles Quinn individually.
    (10) That the four promissory notes made by Langlois and wife to Charles Quinn & Bro. on August 24, 1893, aggregating the sum of $4,354.30, were the property of the partnership.
    (11) That the sum of $1,006 was collected by plaintiff upon the Langlois notes, and applied to his own use, and he should be charged therewith, and that the balance due was collected, in part by Bernard Quinn, and paid by him upon the indebtedness to W. A. Clark & Bro., and by the sheriff of Silver Bow county, and paid by said sheriff to W. A. Clark & Bro. upon said indebtedness.
    (12) That, since the institution of this action, defendant, Bernard, has had possession of the property of the firm, and has collected rents thereof, but that all of such rents have been applied towards improvements and repairs and taxes.
    (13) That the conveyance of September 2, 1893, by the plaintiff to defendant of all his interest and title to certain real estate for the consideration named, $10,000, was not intended by the parties thereto to be a conveyance of the beneficial interest in said property, but ‘ ‘that such conveyance was merely colorable, and did not in fact transfer the equitable or beneficial title, or any part thereof, of Charles Quinn to Bernard Quinn, and that whatever title Bernard may have taken, if any, by such deed, was held by him in trust for the benefit of the co-partnership, and that such property so ostensibly conveyed was at that time, and is now, a part and parcel of the co-partnership property °of the firm, so far as the right, title and interest in and to the same of Bernard Quinn is concerned, subject to the co-partnership lien of Bernard Quinn upon the same for a proportionate part of the sum of money in which Charles Quinn is indebted to the co-partnership.”
    (14) That in December, 1894, defendant conveyed to one Patrick M. O’Donnell a deed purporting to convey certain real estate, but that the same was partnership property, and that, inasmuch as said O’Donnell had notice of the pendency of this action, he took nothing as against the plaintiff.
    (15) That plaintiff owes the co-partnership $2,060.30, made up of the $1,006 collected by him from Langlois, and <¡¡>1,054.30, the amount of co-partnership funds expended by him in the payment of the Larouch notes.
    (16) That Bernard Quinn is not indebted to the partnership in any amount.
    (17) That the brothers can no longer advantageously or beneficially conduct a co-partnership business.
    (18) That the real and personal property is not susceptible of division and partition in kind, and that a sale and distribution are proper.
    As conclusions of law, the referee found that:
    (1) That the plaintiff is entitled to an accounting; that the assets should be sold; that each should receive his share of the proceeds of the sale of the partnership property in proportion to his interest therein, and that thereafter an absolute dissolution should be had.
    (2) That the property described in the findings is partnership property, purchased with partnership funds; and to which the plaintiff and defendant, as between themselves, are entitled to share and share alike, and, upon a sale, to an equal division of the proceeds.
    (3) That the debt to W. A. Clark & Bro. was a partnership indebtedness, and that that part of said debt heretofore paid was payable out of the partnership funds, and that the residue thereof should be paid out of the proceeds of the sale of the assets of the partnership.
    (4) That the sale of the real property of the partnership by Bernard Quinn to O’Donnell conveyed no interest of Charles Quinn therein as a co-partner with Bernard.
    A decree of dissolution was thereafter entered. The property was ordered sold for cash, and that one-half of the net proceeds of the sale or sales of the real and personal property, and an additional sum of $1,030.15, be paid to Bernard Quinn. It was ordered that there be paid to Charles Quinn' one-half of the net proceeds of the sales of the real and personal property, less the sum of $1,030.15; that sum being the amount of the debt of Charles Quinn to the partnership.
    The court adopted the report of the referee, and entered a. judgment and decree in accordance with the findings.
    Thereafter the defendant made a motion for a new trial, and to vacate the findings and the report of the referee, and the judgment rendered and entered. The court denied this motion, whereupon defendant appealed from the order denying the motion for a new trial, and from the judgment.
    After the appeal to this Court, plaintiff, Charles Quinn, died. Motion has been made to have Philip B. C. Goodwin, as special administrator, substituted as party plaintiff. Defendant resists this.

      McHatton <& Cotter, for Appellant.
    We submit that, under the plaintiff’s own statement, the finding is not supported by the evidence, and it is conclusively shown, both by plaintiff and defendant, that no partnership was ever entered into by and between them, and that the only relations existing were that they were owners, as tenants in common, of real and personal property. A partnership inter se results from the intention of the parties. It is shown, in this case, that no partnership, or partnership agreement, was ever entered into; that they never undertook any joint enterprise, excepting the ownership of property in common, and never engaged in merchandising or other business. The intention of the parties must control. The relation of partners is formed by contract or by the actions of the parties which amount to a contract. (Parchen v. Anderson, 5 Mont. 438, 446; 1 Collyer on Part., 7, note 9.) The appellant submits, in this case, that there has been no trial, for the reason that he was entitled to a ruling upon all of the objections, in order that he might save an exception. The referee, acting under the instructions of the court, refused to make the rulings, and thereupon, and upon the testimony introduced oyer such objection, he based his findings and conclusions of law, upon which the decree was entered herein, no ruling ever haying been made upon the objections. A trial before a referee must be conducted in the same manner as a trial before the court, and exceptions must be taken to his rulings during the progress of the trial. (Code of Civil Procedure, Sec. 1135; Lyson v. Wills, 2 Cal. 130; Goodrich v. Mayor, 5 Cal. 431; Phelps v. Peabody, 7 Cal. 53; 20 Am. and Eng. Ency. Law, pp. 691, 692.) The referee is required to adhere to the rules of evidence. (Délariva v. Berrzasa, 2 Cal. 196.) He can exercise all the powers of the court in relation to the trial. (Plcmt y. Fleming, 20 Cal. 93.) He should, before closing the trial, rule on all objections, to give a,n objecting party the benefit of an exception. (Berrian v. Sanford, 1 Hun. 627.)
    The Supreme Court of New York, in passing upon a trial conducted in this manner, stated that refusing to rule upon an objection made is a hazardous mode of trial. (Sharp v. Freeman, 45 N. Y. 802.) In any view of the case, we submit, there was a sufficient consideration for the deed. Where a deed is taken in good faith, the amount of the consideration paid is immaterial. (2 Devlin on Deeds, Sec. 814; Carey v. White, 52 N Y. 138.) A promise to pay, even though it is not performed, is a sufficient consideration for the deed. (2 Devlin on Deeds, Sec. 809; Bishop on Contracts, Sec. 1304; Gray v. Lake, 48 la. 505; Lake v. Gray, 35 la. 459; Price y. Sturgis, 44 Cal. 591; Byers v. Lock, 93 Cal. 496, 29 Pac. 119; M'Crea v. Pur mor t, 16 Wend. (N. Y.) 460, 472.) Anything detrimental to the promisor or beneficial to the promisee is a good consideration. (Story v. Black, 5 Mont. 26, 50.) Inadequacy of price must be extreme to call for the interposition of equity. (2 Pomeroy’s Eq. Juris. Secs. 925, 927, 928.) A false statement of consideration does not necessarily vitiate the deed. (2 Pomeroy’s Eq. Juris. Sec. 928, note, p. 433.) It may always he shown that the real consideration was a different amount' than that expressed in the deed. (Boioen v. Bell, 20 Johns. (N. Y.) 338; Byers v. Lode, supra.) The consideration clause of a deed is always open to explanation, and it may be shown, by parol, that the consideration was of an entirely different character than that expressed in the deed. (My Creav. Purmort, supra/ Byers v. Lode, supra.) While the deed expresses a consideration, and the plaintiff admits that he sold the property under the agreement that he was to get ten thousand dollars, we submit that is sufficient, for the defendant shows he assumed his indebtedness in the bank, in ■which he obligated himself to the extent of about seventy-three hundred dollars, and was obliged to pay the same. In any view of the case, we submit, under the above authorities, that the deed was supported by, a sufficient consideration. The verbal agreement of appellant to assume the Clark indebtedness or pay plaintiff ten thousand dollars as a consideration for the deed was valid and binding, and could be enforced by the plaintiff. (Civil Code, Secs. 2183, 2184, 2185; Compiled Statutes 1887, Sec. 219, p. 652; Price v. Sturgis, supra; Byers v. Lode, supra-, Thomas v. Dideinson, 12 N. Y. 364; Darling v. Butler, 10 L. R. A. 469, 472; Shephard v. Little, 14 Johns. (N. Y.j 210; Lde v. Leiser, 10 Mont. 5.) The evidence further shows that by reason of the execution and delivery of the deed, the defendant was induced to sign the Clark note. There is no offer on the part of the plaintiff in this case to relieve the defendant from that liability and obligation, and we therefore submit that he is not in a position to have the deed in question canceled. It is a familiar principle that 1 ‘He who seeks equity must do equity.” (1 Pomeroy’s Eq. Juris. Secs. 385-388; Casey v. Wright, 14 Mont. 317.) The true rule would seem to be that only in cases of fraud should the deed be set aside without the return of the consideration, but in cases where the deed was taken in good faith, the grantee should be reimbursed. (1 Devlin on Deeds, Sec. 76; citing,
      Eaton v. Eaton, 8 Yroom. (N. J.) 108; note, Jackson v. King, 15 Am. Dec. 367.) Facts showing undue influence must be alleged. (1 Devlin on Deeds, Secs. 81, 82, 83, 84; Allore v. Jewell, 94 U. S. 506, L. Ed. 260; Jones v. Gorham, 10 L. 17. A. 223; Jackson v. Rowell, 4 L. 17. A. 637, note; Bender v. Bender, 14 Ore. 353, 12 Pac. 713.) Facts must be alleged showing fraud. (Budd v. Power, 8 Mont. 380.) Inadequacy of consideration, even if it were shown, is not sufficient evidence of fraud or undue influence. (/Sturtevant v. Sturtevant, 116 111., 340; 2 Pomeroy’s Eq. Juris., Sec. 928.) The mere fact that plaintiff and defendant were brothers is not a sufficient reason, without an additional showing, for setting aside the deed. (Jenkins et al. v. Pye et al., 37 U. S. 41, L. Ed. 1070.) Appellant submits, upon the foregoing authorities, that the judgment and decree entered herein and order overruling his motion for a new trial herein should be reversed, and that amorder should be entered herein directing a judgment in his favor for the property in controversy, as included in the deed of September 2, 1893.

      Charles O' Donnell, for Respondent.
    We admit on the part of the plaintiff that the testimony does not show that there ever was any written articles of co-partnership made between the plaintiff and the defendant, but the testimony does show that they went into business together as early as 1864, and engaged in several kinds of business, lived together, partook in the profits of the enterprises and equally shared in the losses. There is no absolute necessity for a partnership contract or an agreement in writing to constitute a co-partnership. If Charles Quinn and Bernard Quinn were not co-partners, what were they? We are unable to answer the question. Two persons jointly interested in a mining adventure are partners; and this whether they so agree or not. (Synider v. Burnham, 77 Mo. 52.) The joint purchase of a threshing machine by two persons, who give their notes for the price, under an agreement to work it together, each furnishing one-half the labor, and to divide the profits and losses equally, makes them partners. (Aultman v. Fuller, 53 Iowa, 60.) It is sufficient if they are to share in the profits and in the losses so far as they affect the capital advanced. Nor is it necessary that the partners should be proportionate joint owners of the capital. It is enough that they are jointly interested in the profits and losses. (Brigham v. Dana, 29 Yt. 1.) Joint purchasers of land intended to be sold for joint profit are partners. (Hulet v. Fairbanks, 40 Ohio St. 233; Bicharás v. Grinnell, 63 Iowa, 44, 50 Am. Rep. 727; Canadas. Ba/rksdale, 76 Ya. 890.) A joint undertaking and community of profit and loss in the results of the business will constitute a partnership, even when each partner retains the exclusive ownership of the separate property contributed by him to the use of the firm. (Me Grary v. Slaughter, 58 Ala. 230.) Persons engaged in any trade, business or adventure, upon the terms of sharing the profits and losses arising therefrom, are partners in that'trade, business or adventure. An agreement to share the net profits necessarily implies a sharing of the losses. ( Wilcox v. Dodge, 12 111. App. 517; Howe v. Howe, 99 Mass. 71; Meserve v. Andrews, 104 Mass. 360; Vassar v. Camp, 14 Barb. N. Y. 341.) Participation in the profits of a business is strong presumptive evidence of a partnership in it. (Shropshire v. Shepherd, 3 Ala. 733; Hanna v. Flint, 14 Cal. 73; Loomis v. Marshal, 12 Conn. 69; Bond r. Cummins, 50 Conn. 372; Barton v. Qoodspeed, 69 111. 237; Holbrooke v. Oberne, 56 Iowa, 324; Shepherd v. Pratt, 16 Kan. 209; Turner v. Bis-sill, 14 Pick. 192.) Partnership must be proved like any other fact, and cannot be established by mere surmise or innuendo. (Hudson v. Simon, 6 Cal. 453.) But it may be implied fr-'m circumstances. (Kellegher v. Tisdale, 23 111. 405.) And evidence that the parties are constructively partners supports the allegation. (Bippey v. Evans, 22 Mo. 157; Win-slow v. Chejfelle, 1 Harp. (tí. C.) Ch. 25; Wilcox v. Matthews, 44 Mich. 192; Seekell v. Fletcher, 53 Iowa, 330.) A promise made without any consideration — i. e. a gratuitous promise — is not binding. The common law rule which refuses relief against ignorance or mistake of law, and which is equally applicable in courts of law and equity, is not enforced in equity where such ignorance or mistake is induced by fraud or imputation, or undue influence, or an abuse of confidence springing out of the peculiar relations existing between the parties. (5 Rights and Remedies, page 3929; Uardegrie v. Mitchum, 51 Ala. 151; Dill v. Shahan, 25 Ala. 694; Benson v. Marrkoe, 37 Minn. 30; State v. PoAcp, 13 Ark. 129; Warder v. Tucker, 7 Mass. 449.)
   HUNT, J.

1. Counsel for Bernard Quinn objects to the substitution of the special administrator of Charles Quinn as plaintiff. But we are advised on the argument that there is a delay, on account of some contest in the District Court of Silver Bow county in granting letters of administration, and that because of such delay no administrator has yet been appointed. Under such conditions, we believe a special administrator has a right to appear in a pending suit, and to represent the interests of the decedent’s estate. In so doing the special administrator but exercises the authority given to him by Sections 2500, 2504 of the Code of Civil Procedure, to collect and preserve the estate for the administrator to be regularly appointed, and, for the purpose of collection and preservation, to commence and maintain suits and other legal proceedings as an administrator could do. Within the duties of collection and preservation is the prosecution of a suit already commenced to obtain an interest in property belonging to the decedent, for upon its determination may depend the collection of property which represents the bulk of the estate. Plainly, therefore, the special administrator is a proper party, and may be substituted as plaintiff herein. (State ex rel. Bartlett v. Second Judicial District Court, 18 Mont. 481, 46 Pac. 259.)

2. It is contended that the findings to the effect that by their joint labors and funds the brothers acquired interests in common in real and personal property are unsupported by the evidence. We shall not recite the testimony, but merely say that every finding of referee is amply sustained. These brothers joined their interests in an association to carry on business together, and to divide its profits or losses between them. Brotherly affection, mutual confidence, and trust kept them close together as men; and, although they made no express agreement forming a partnership, the transactions and relations of one towards the other in their affairs show that they intended to be partners, and were so in law. (Story on Partnership, Section 7.) Por nearly 30 years they plodded along, acquiring and owning everything share and share alike, living together as bachelors, without books of account between them, without division of funds, without suspicion of one another, known to the world as partners, and without a break in the ties of unmeasured confidence which had inseparably bound them from their younger days, and which lasted until just before the close of the life of Charles. Unfortunately then came a disagreement, but it cannot affect the legal relationship that existed between them, or deprive either of his share in the assets of their partnership.

The deed from Charles to Bernard on September 3, 1893, was evidently executed by way of protection to Bernard and taken by Bernard in recognition of Charles’ equal rights in the property conveyed thereby. The reason for this transfer was that Charles, being less prudent in the management of business than Bernard, was apt to involve the partnership in obligations for which Bernard did not wish to be responsible without some security. But the realty conveyed was a partnership estate. It had been purchased for partnership purposes, and paid for by partnership funds; and notwithstanding that part of it may have stood in the name of one brother or that it had been conveyed to the brothers as tenants in common, it became, and was treated by the brothers as, partnership property. It must therefore be regarded as partnership real estate, controlled by those principles common to all partnership estates, and which have been announced in the case of Rockefeller v. Dellinger, 22 Mont. 418, 56 Pac. 822.

After attentively examining the evidence, we approve of the findings and judgment. It is seldom that a case is presented showing so much care on the part of a referee. He has laboriously entered into the accounts of the brothers, and in his elaborate findings has.worked out a most just and equitable result, supported in every respect by competent evidence and principles of fairness and right. The lower court approved of the findings, and we now affirm the judgment thereon.

3. Several errors are presented as to the referee’s rulings upon certain questions occurring on the trial. In but one instance was there possible error, but that was not of sufficient importance to warrant a reversal of the case. It arose by the referee’s sustaining an objection to a question put to a witness on cross-examination, asking if the witness was not unfriendly to the defendant. The interrogatory was perfectly competent and it was error to hold otherwise. Just afterwards, however, the witness was asked if he had not had defendant arrested once for threatening the witness’ life since the trouble between the brothers had arisen. Witness answered this question by saying that he had had him arrested, and about that time had sued defendant for $15,000 damages for slander. This answer, we think, naturally showed an unfriendly feeling on witness’ part to defendant, and sufficiently cured the error in excluding the previous question more directly put. Thus, no prejudicial error was committed.

4. The referee in the course of the trial was instructed by the court not to rule upon any objections offered to testimony. Thereafter he declined to pass upon certain objections interposed by the defendant. We have looked into these several objections and find that no harm could have been done by the testimony admitted, as it was competent for the purpose of getting at the several sums of money chargeable to the brothers in adjusting their accounts. It is a better practice, however, for the referee to rule upon objections as they are made, in order to give the objecting party the benefit of exceptions, and we advise that practice in the future; but, as no injury was done by the different course pursued in this instance, we shall not reverse the order denying a motion for a new trial.

The judgment and order appealed from are affirmed.'

Affirmed.

Brantlt, C. J., and Pigott, J., concur.


author: PIGOTT, J.

text:
    ROCKEFELLER, Respondent, v. DELLINGER, Appellant.
    [No. 1,053.]
    [Submitted March 1, 1899.
    Decided April 10, 1899.]

      Partnership Real Estate — Creditors of Firm Members — Rights.

    1. Where a partnership purchased lands with firm property, taking the title in the name of the Arm members individually, and then mortgaged the lands to obtain money for the Arm business, the mortgage was superior to an earlier judgment against one of the members of the Arm.
    2. Although a partnership, as such, cannot hold the legal title to land, it may in equity own real estate, without reference to the title at law; it being of no importance who holds the legal title, or how he came by it, excepting so far as these facts express or reveal the intention of the partnership.
    3. Since the question whether the lands were partnership property was determined by the intention of the partners at the time of purchasing them, the mortgage was superior to such judgment, even though none of the moneys realized therefor were devoted to the partnership business.

      Appeal from District Court, Deer Lodge County; Theodore Drantly, Judge.

    Action by I. M. Rockefeller against D. N. Dellinger, impleaded with others. There was a decree for plaintiff, and defendant Dellinger appeals.
    Affirmed.

      Ed. Scharnilcow and William PE. De Witt, for Appellant.
    That real estate is held in the names of several persons and-that such persons are partners, however, is not alone sufficient to establish its partnership character. (Thompson v. Dow-

      man, 6 Wall (U. S.) 316; Ouilbeau v. Melancon, 28 La. Ann. 627; Blake v. Nutter, 19 Me. 16; Lmdley v. JDaon, 7 Mont. 210; 17 A. and E. Enc. Law, p. 945.) The universal American doctrine is that real estate purchased with partnership funds is in equity regarded as personal property so far only as may be necessary for the payment of debts and the adjustment of partnership accounts, the balance retaining all the incidents of real property. (17 A. and E. Enc. Law p. 945, and cases cited.) In order that real estate conveyed to two persons who are partners may be held to be partnership property, as against the individual creditors of either of the partners it must appear that such property was not only secured with partnership funds, but also used as partnership property, and treated as such by the partners. Otherwise they hold as tenants in common, and a mortgagee claiming the property as partnership property, must show that before lending, he knew that the property was so used and treated as partnership property, in order to defeat the claim of lien of a creditor of one of the partners. (17 A. and E. Enc. Law, p. 946; Johnson v. Olarke, 18 Kan. 157; Ilogle v. Lowe, 12 Nev. 286; Black v. Seipt, 12 Phila. (Pa.) 360; see Pepper v. Pepper, 24 111. App. 316.)

      Oeorge B. Winston, for Respondent.
   PIGOTT, J.

Action to foreclose a mortgage upon lot 2 in block 117 in Anaconda, Deer Lodge county, known as the “Cottage Home Property,” made by defendants Root and Vineyard to secure the payment of their note for $2,000 to plaintiff, made September 17, 1892. The complaint alleges, among other things, that the defendants Samuel D. Root and Gordon C. Vineyard were co-partners in a certain patent for improvements in cable railways, and in the sale, introduction and operating thereof; that contemporaneously with the execution of the note and mortgage, and as part of the same transaction, they, as such co-partners, purchased from one Parrott the land affected by the mortgage, and that the sum mentioned in the note was lent by plaintiff, and borrowed by them as co-partners, for the purposes of the partnership business; that the land mortgaged was partnership property, and was paid for with assets belonging to the partnership; and that the defendant Dellinger claims some interest in or lien on the land, which interest or lien is subject to the lien of plaintiff’s mortgage. Dellinger, in his answer, denies the averments of the complaint with respect to the partnership, and affirmatively sets up that on April 1, 1892, he recovered judgment in the district court of Deer Lodge county against defendants Vineyard and wife for §2,177.50, which was duly entered and docketed on that day, and remains wholly unpaid; that the same is a lien ' upon the land prior and superior to that created by the mortgage, — and prays for a decree that out of the proceeds derived from the foreclosure sale he be paid the amount of his judgment, as a first lien and charge upon the lands and such proceeds. The court found, in effect, that Dellinger recovered a judgment against Vineyard and wife as alleged in the answer, which judgment was duly docketed on April 1, 1892; that on September 17, 1892, defendants Gordon C. Vineyard and Samuel D. Root bought from Parrott the Cottage Home property, and as part of the same transaction, so far as they were concerned, executed to plaintiff a mortgage thereon, to secure the payment of the §2,000 then borrowed, and represented by the note; that, at the time of the purchase from Parrott, Root and Vineyard were co-partners, as alleged in the complaint, under the firm name of Vineyard & Root; and that the consideration. of the conveyance by Parrott to them was an interest in the co-partnership assets; that the purchase was a partnership transaction, and the conveyance, though made to them as individual persons was also a partnership transaction; that the land belonged to the co-partnership, and that the mortgage was executed for the purpose of raising money to further the partnership enterprise in connection with the tramway device, and to pay certain partnership debts; that the lot so purchfsed and mortgaged was not used for any partnership purpose, other than to raise the money, the payment of which was secured by the mortgage; and that $1,300 of the sum so borrowed from plaintiff were used for the payment of certain partnership debts, and in the partnership business. • As matter of law, the court concluded that the judgment lien of Dellinger is inferior to the mortgage lien of plaintiff; that plaintiff is entitled to have the full amount of his mortgage declared a first lien on the land, and to a sale thereof in satisfaction; that Dellinger is entitled to have any overplus resulting from the sale, not exceeding a moiety, applied in or towards the satisfaction of his judgment. A judgment and decree were entered accordingly, and therefrom, as well as from an order refusing a new trial, Dellinger appeals.

1. The first assignment of error is that the evidence is insufficient to justify the finding that, out of the $2,000 borrowed of plaintiff, the sum of $1,300 was used for the benefit of the partnership. Abundance of testimony was adduced tending to prove the fact so found, and the finding cannot be disturbed. The other findings, all of which are based upon uncontradicted evidence fully justifying them, are conceded to be correct.

2. The conclusion of the court that Dellinger’s judgment lien was inferior to plaintiff’s mortgage lien, as against Vineyard, to the full amount of the mortgage, is attacked as not supported by the findings of fact; the contention being that the mortgaged land itself was never actually used in the partnership business, and that only a part of the money borrowed from plaintiff upon the mortgage was used by the firm. From this it is argued that the land purchased of Parrott was owned by Root and Vineyard individually, as mere tenants in common, and that, therefore, the lien of Dellinger’s judgment attached to Vineyard’s undivided half interest immediately upon the delivery of the conveyance of September 17, 1892. Plaintiff’s position is that the land was partnership real estate, and that his mortgage is a lien superior in right to the lien of Dellinger.

From the time it is docketed, a judgment becomes a lien upon the nonexempt real property of the judgment debtor then owned or within six years thereafter acquired, by him, and situate in the county where the docket is kept. (Compiled Statutes 1887, First Division, Sec. 307; Code of Civil Procedure of 1895, Sec. 1197.) It is not a specific lien, of a lien in rem: It affects or charges only the actual interest of the debtor in the land,' — the’ subject of the ownership, — and does not create a preference over, but is subject to, all prior legal or equitable titles in other persons. (Vaughn v. Schmalsle, 10 Mont. 186, 25 Pac. 102; Page v. Thomas, 43 Ohio St. 38, 1 N. E. 79, and 54 Am. Rep. 788; Harney v. First National Bank, 52 N. J. Eq. 697, 29 Atl. 221.) When Dellinger’s judgment was docketed, Vineyard had no interest in the land. Whatever interest he afterwards held was acquired by the conveyance of September 17, 1892, and to such interest the lien attached. What was that interest ? Although a partnership, as such, cannot hold the legal title to land, it may in equity own real estate, without reference to’ the title at law; it being of no importance who holds the legal title, ‘ ‘or how he came by it, excepting so' far as these facts express or reveal the intention of the partnership.” (Parsons on Partnership (4th Ed.) Sec. 267.) “Nor does it seem to be material in what manner or by what agency the land is bought, or in what name it stands. It may be conveyed to all the partners as tenants in common, and this, perhaps, is the usual and best way. * * * Nor is it necessary that the trust (in favor of the partnership) should be expressed; for, however proper and expedient this is, yet, if the trust be wholly omitted, and have no existence on record, the law will sometimes, and equity always, supply this want, and treat the ownership as a distinct trust, if only the trust exist and is capable of proof, and the land be in fact and substance partnership property. ’ ’ (Id. Sec. 265.) The deed runs to Gordon C. Vineyard and Samuel D. Root as grantees, from which the inference arises, prima facie, that they took, not as partners', but as tenants in common; each owning an undivided half interest. Unless rebutted, this inference is conclusive, and Dellinger’s judgment would be a lien on the half interest of Vineyard superior to plaintiff’s mortgage thereon. Assuming, as we do, that the conveyance by Parrott was prior in point of time to the mortgage by Vineyard and Root, there was an appreciable interval between these two instruments of September 17th, during which the judgment of Dellinger would become a lien upon the interest belonging to Vineyard. If the land was acquired and held by Vineyard and Root as partnership property, the mortgage, though executed subsequently to the transfer by Parrott, and not connected with it, would take precedence of the lien of the judgment; for in that case the only interest Vineyard could have in the land would be his share therein, or his proportion of the residue thereof after settlement of all partnership affairs, including liabilities incurred after the conveyance. (Page v. Thomas, supra.) Until such settlement were made, creditors of the partnership might by> legal process subject the land to the payment of their demands; and the co-partnership, the owner in equity, in the name cf and by its members, in whom, collectively,- is the whole legal title as well as the equitable ownership, might mortgage the land, thereby creating a lien superior to that theretofore imposed by the docketing of a judgment against one of the partners.

The consideration for the conveyance by Parrott of the Cottage Home property was the assignment to him by Root and Vineyard, as co-partners, of an interest in the partnership assets. The mortgage to plaintiff was made for the purpose of raising money to further the partnership business, and to pay certain partnership debts. The purchase from, and the deed of conveyance by, Parrott, was a partnership transaction. These facts are sufficient to establish the partnership character of the land purchased from Parrott and mortgaged to plaintiff. The intention of the parties at the time the conveyance was made is the proper criterion by which to determine whether the real estate granted to them then became a portion of the partnership assets. To evince presumptively the intention to take and hold land as partnership property, which has been conveyed to the several copartners, nothing need be shown, except that the land was purchased with partnership assets or funds; and, in the absence of all circumstances tending to prove the intention to have been otherwise, that presumption will usually control and be decisive. As an aid in ascertaining the intention or design of the grantees, it is proper to receive evidence with respect to any matters having a tendency to disclose that intention, whether occurring before or after the purchase. To make the land conveyed to the partners as individual persons partnership property, it is not absolutely indispensable that the land should be actually used for partnership purposes; but evidence that it was so used is some evidence that the conveyance is to be treated as granting £o the partnership the equitable ownership, and that the conveyance is not to have the legal effect of making the grantees simply tenants in common. These rules are supported by reason, and in accord with the decided weight of authority. (Hoxie v. Carr, 1 Sumn. 173, Fed. Cas. No. 6,802; Smith v. Smith, 5 Ves. Jr. 189; Hunt v. Benson, 2 Humph. 469; King v. Weeks, 70 N. C. 372; Buchan v. Sumner, 2 Barb. Ch. 165, 47 Am. Dec. 305; Collumb v. Read, 24 N. Y. 505; Fairchild v. Fairchild, 64 N Y. 471; George on Partnership, Secs. 45, 48; Goldthwaite v. Janney, 102 Ala. 431, 15 South. 560, 48 Am. St. Rep. 56, and note on page 67; note to Page v. Thomas (Ohio Sup.) 54 Am. Rep. 793, and cases there cited (s. c. 1 N. E. 79); and see McKinnon v. McKinnon, 5 C. C. A. 530, 56 Fed. 409.)

In the case at bar the court found, and the evidence tends to show, not only that the land was bought with partnership assets, and for partnership purposes, but that it was mortgaged in order that the partnership might thereby obtain money for use in furthering the business of the firm. True, the land was not physically devoted to the active prosecution of the tramway enterprise, but it unquestionably was devoted to a purpose within the scope of the partnership. Had none of the money raised by the mortgage been applied to partnership uses, the result would not be different; for failure to apply the money to the use of the partnership would serve only as an item of evidence, tending to prove that the intention of Root and Vineyard was to acquire and hold the land as tenants in common, and not in trust for the co-partnership.

As we have said, there is no attack upon the findings of the court that the conveyance by Parrott was in consideration of an interest in the partnership assets of Vineyard & Root, that the purchase and the conveyance were partnership transactions, and that the mortgage was executed for the purpose of raising money for the benefit of the partnership. These findings are amply sufficient to justify the conclusions of law and the decree of the court in favor of the plaintiff, even if the evidence had disclosed that none of the money borrowed from plaintiff was used by the partnership.

Let the judgment be affirmed.

Affirmed.

Hunt, J., concurs. Brantly, C. J., disqualified.


text:
    STATE, Respondent, v. LITTLE WHIRLWIND, Appellant.
    [No. 1,339.]
    [Submitted April 3, 1899.
    Decided April 11, 1899.]

      Homicide — Indictment or Information— Waiver of Objections —Privileges and Immunities of Citizens — Indians—Trial —Presence of Accused.

    1. Constitution, Article IH, Section 8, providing that prosecutions shall he either by information or indictment, and authorizing the court to decide which method shall be pursued in each particular case, is not an abridgement of the privileges and immunities of citizens.
    2. The presence of accused is not necessary at a proceeding to obtain leave of court to file an information against him.
    8. State courts have jurisdiction of crimes committed against whites outside of an Indian reservation, by Indians maintaining tribal relations on a reservation within a state, in charge of the federal government.
    4. An objection that a petition for leave to file an information for homicide stated the wrong Christian name of deceased is waived when not raised in the trial court.
    5. Accused need not be present in court during the argument of a motion to quash the information, since such proceeding is no part of “trial.”

      Appeal from District Coitrt, Custer County¡ C. II. Loud, Judge.

    Little Whirlwind was convicted'of murder in the second degree, and appeals.
    Affirmed.'

      Sanders (& Sanders, Geo. B. Milburn, ■ Geo. W. Farr and C. L. Merrill, for Appellant.

      O. B- Nolan,, Attorney General, for the State.
   HUNT, J.

Defendant was jointly informed against Avitn Yellow Hair, Spotted Hawk, and others for the murder of John Hoover at Custer county, on May 1, 1897. The information herein being the same under which Spotted Hawk, upon separate trial, was convicted of murder in the first degree, as set forth and considered in our opinion in State v. Spotted Hawk ante, p. 33, 55 Pac. 1026. This defendant had a separate trial. A. verdict of guilty of murder in the second degree was rendered against him, and thereafter, on December 1, 1897, he ivas sentenced to prison for life. He appeals to this Court from the judgment only, without a bill of exceptions or statement reciting the evidence. Being limited, therefore, in our examination, to but a few propositions which the appeal raises, we briefly refer- to them seriatim.

1. It is forcibly contended that the prosecution by information was without authority of law.- In his brief upon this point, appellant’s counsel dwells upon the unconstitutionality of the powers vested by the Constitution and laws of Montana (Const. Art. Ill, Sec. 8, and Criminal Code) in the district courts and the county attorneys of the several counties of the state to allow and conduct prosecutions by one of the two forms — information or indictment. He says that, if there-were a provision of the Constitution attempting to prescribe who shall be prosecuted by indictment and who by information, it would be in contravention of the fourteenth amendment of the Constitution of the United States, and from that assumption — which, for present purposes, we may accept as true — he urges that, where there is no attempted classification of those who shall be amenable to the one form of prosecution and not to the other, it follows that authority in a court to say which method shall be set in motion, especially in the absence of the person interested, is arbitrary, and a discrimination of equality of essential right which violates the federal constitution. We find ourselves unable to agree with the reasoning of the learned counsel. Prosecution by information is constitutional where there has been examination and commitment, or after leave has been given by a court.' Prosecution by indictment is constitutional even without such examination or commitment, or without leave of court. Safeguards are thrown about the exercise of the power to prosecute by information, not necessary where indictment is the form invoked; but it is fully as constitutional. The provisions of the Constitution of the State authorizing prosecution by these two methods were discussed at some length in State v. Brett, 16 Mont. 360, 40 Pac. 873, and, after full consideration of the authorities, procedure by information, after leave obtained, was there decided not to be a deprivation of the liberty of the citizen without due process of law, or an infringement abridging the privileges and immunities of citizens of the United States as guarantied by the fourteenth amendment to the federal constitution. Now, it being true that both modes of prosecution are constitutional, it follows that neither is unconstitutional if the conditions exist under which the method chosen may be exercised.

These propositions rest upon this principle: It is not an infringement of the constitutional rights and immunities of the citizen of the United States for the state to exert its power by adopting any system of judicature it sees fit, provided it keeps itself within what Justice Matthews, for the Supreme Court of the United States, called “the limits of those fundamental principles of liberty and justice which lie at the base of all our civil and political institutions, and the greatest security for which resides in the rights of the people to make their own laws, and alter them at their pleasure.5 ’ (Hurtado v. People, 110 U. S. 516.) A classification by law which selected for prosecution by information only all crimes committed by Indians and negroes, but which authorized Caucasians to be prosecuted for crimes by information or indictment, might possibly be obnoxious to the fourteenth article of amendments to the constitution of the United States, as violative of fundamental principles of equal rights. But we are of the opinion that the vesting of power in a court to decide which of two modes may be pursued in the prosecution of criminal cases, where either one of two is lawfully authorized by the Constitution of the State, and where equal protection of the law of either forum is accorded all persons under like circumstances, is not a delegation to the courts of the power to discriminate between citizens to their disadvantage or inequality of right; nor can we believe that the citizen may compel the state to prosecute him by indictment in preference to information, unless his case is one where the constitution or law has confined the power to but the one mode only, or unless the mode selected is arbitrary and unjustly exercised.

The formalities precedent to filing an information afford security to the citizen by the guaranty of either the preliminary hearing or the leave of court, — formalities and restrictions deemed and doubtless truly as ample in their security as those afforded by inquisition through a number of citizens impaneled and sworn as a grand jury; hence no injustice is done by adopting the one method of prosecution rather than the other. Upon the ground, therefore, that information is the mode chosen, the defendant has no cause for complaint.

2. Nor do we think that a defendant’s presence, when leave to file an information is obtained, is necessary. The application for leave is but a preliminary step towards making a charge. It is in itself no charge; it does not authorize an arrest, or raise an issue to which defendant is expected to reply. The object is security against oppression by the reservation of the check of judicial action. No one ever heard of the defendant’s presence being insisted upon under such circumstances. Indeed, how could it be ? The defendant is often at liberty, beyond immediate reach, and his whereabouts entirely unknown. To say that his presence is necessary when leave to file an information is asked or given, would frequently abrogate the power of prosecution by information, because, if defendant were a fugitive, or absent when petition for leave to file a charge is passed on, his presence could not be had, for no warrant could issue; hence his absence would defeat the filing of the information at all. As well as might he insist that he be present when a grand jury investigates a matter in which he is interested. Reasoning on this line carries us to an absurd, but inevitable, conclusion.

3. It is next said that defendant is a Cheyenne tribal Indian, over whom the District Court in and for Custer county had no jurisdiction in the matter of the crime charged. This point was settled adversely to the appellants in State v. Spotted Hawk, supra. It is unnecessary to discuss it again.

4. The court granted leave to file an information upon a petition stating the name of the deceased as William Hoover, whereas his name was John Hoover. Defendant did not raise the question of this variance in the district court, and is not in a position to have it considered here. It is argued he could not waive his right to object. We hold otherwise. It is of far less importance to him than the information itself to which he must plead, yet he may waive a verification to that, as he may waive many other rights of far greater significance than a mistake in a name in the petition filed asking leave to file an information. (State v. Brantly, 20 Mont. 173, 50 Pac. 410.)

5. It is also said that “the trial proceeded against defendant upon his motion to quash while he was absent from the court. ’ ’ This question was likewise presented in the Spotted Hawk case, where it was held that by a trial in criminal proceedings is meant proceedings in open court after the pleadings are finished, and the case is otherwise ready, and that the trial continues until after the rendition of the verdict. We affirm that ruling without repeating the reasoning for it.

This disposes of the main points urged in appellant’s brief. We are constrained to bold that defendant’s rights do not appear to have been disregarded.' The judgment is affirmed.

Affirmed.

Brantly, C. J., and Pigott, J., concur.


author: PER CURIAM.

text:
    FORRESTER & MacGINNISS, Respondents, v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO. et al., Appellants.
    [No. 1,385.]
    [Submitted April 11, 1899.
    Decided April 13, 1899.]

      Corporations — Receivers—Appointment—Refusal to Vacate— Appeal — -Stay—Restitution—Contempt.
    1. Though an order appointing a receiver be not appealable, yet the court may, on appeal from an order refusing to vacate the appointing order, consider the showing made on the application to vacate, even though it involves a scrutiny of matters before the lower court when it made the appointing order.
    2. A court should never, on a slight or unsubstantial showing, continue a receivership for a solvent corporation, which has apparently removed all necessity for the control of its property by the court, and where every possible protection can be afforded a minority shareholder who feels aggrieved,
    3. Pending appeal by a corporation from an order refusing to vacate a receivership imposed at the instance of minority stockholders, because of the corporation illegally transferring its stock and the property to a foreign corporation, the majority stockholders moved for a stay and for restitution, and offered to make full accounting for all transactions subsequent to the illegal transfer, to allow the injunction restraining it from transferring its property to be made perpetual, to suffer judgment canceling the conveyances and declaring valid a reconveyance, and to indemnify the minority stockholders. The majority represented 149-150 of the stock, and the corporation was solvent, and had $1,000,000 in the treasury, — its property being worth $40,000,000, —with no debts. The corporation made a prima /acieshowing that the management of the receiver would not be as skilled as operation by its own servants, and would not result as advantageously to the shareholders. Held, that the stay should be granted and restitution made, on execution of a sufficient bond.
    4. In order to make the stay effective, the Supreme Court has full authority to make any order it thinks proper requiring restitution.
    5. "Where a lower court has not adjudged a corporation’s officers to be in contempt, but has heard a motion made by the corporation, and has not based its denial of the motion on the ground of their being in contempt; the Supreme Court, on an application for a stay pending an appeal, will not consider the question of contempt.
    Suit by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. There was a decree for plaintiffs, and defendants apply for a stay of proceedings pending appeal.
    Stay granted.
    Statement of the case by the Court.
    The Boston & Montana Consolidated Copper & Silver Mining Company, one of the defendants, prays this Court for an order that all proceedings under a certain order appealed from, made by the District Court of Silver Bow County, be set aside and suspended pending the hearing and until the final determination of this appeal, and that the receiver for the property of the defendant corporation be required to surrender possession of all the property of which he is iff possession as receiver. The petition refers to the appeal and decision in the injunction suit, decided by this Court in 21 Mont. 544; it sets forth that on December 15, 1898, the District Court of Silver Bow County upon an ex parte motion, and without notice to defendants, appointed a receiver of the Montana corporation and ordered the New York company to deliver all of its mining property to the said receiver. The facts and history of this suit appear more fully in the application for a writ of certiorari, passed upon by this Court in State ex rel. B. <& M. Con. C. (& S. Mining Co. v. District Court of Silver Bow County, 22 Mont. 241, 56 Pac. Rep. 219, and 22 Mont. 376, 56 Pac. Rep. 281. It is averred that on December 16, 1898, and during the pendency of the proceedings upon the writ of review which had been issued by this Court on February 23, 1899, the New York company turned over and delivered to the Montana company .all the property of every kind which it had received from the Montana company, and then and there delivered to said company a deed of conveyance of all the real property which the Montana company had previously conveyed to it and a bill of sale of all the property in question. It is averred that on February 23, 1899, defendants asked leave to file a supplemental answer setting up the facts of reconveyance and redelivery and alleging, in substance, that the intent of making the transfer had been wholly abandoned, and that on the-day of February, 1899, the defendants also moved the District Court to vacate and set aside the order appointing the receiver and to discharge the said receiver; that the said motion to vacate the order appointing the receiver and to discharge him came on for hearing before the District Court on April 1, 1899, and on April 10th following the District Court overruled the motion; that on said day defendants appealed; that on April 8, 1899, the receiver took possession and control of the property of the Montana company, and is now in possession of the same and threatens to operate the property; that the receiver is not a mining engineer or a metallurgist, is unfamiliar with the management of mines or smelters, and that the change in the management of the property will be detrimental to its business and to the interests of the petitioner and its stockholders. Further matters stated in the petition are sufficiently set forth in the opinion.
    It is appropriate to include in this statement mention of the fact that by an act of the Legislative Assembly, which became a law on February 28, 1899, Sections 1722 and 1723 of Chapter I of Title XIII of Part II of the Code of Civil Procedure, relating to appeals to the Supreme Court, were amended, the particular matter necessary to be stated here being that the right of appeal was given by the new law £ ‘from an order appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver. ’ ’ In the original sections of the'Code referred to no provision was made for appeals in such cases. The new law, in section 2 thereof, provided also that in any of the cases mentioned the Supreme Court, or a Judge thereof, may stay all proceedings under the order appealed from under such conditions as may seem proper.

      Wm. H. De Witt, Wm. Scallon, W. W. Dixon, Wm. Wallace, Jr., Gcurpenter & Carpenter, and Ransom Cooper, for Appellants.

      J. J. McHatton, R. B. Smith, and Cullen, Day <& Cullen, for Respondents.
   PER CURIAM.

Reserving to ourselves the right of elaborating our opinion hereafter, when the appeal is decided, we now outline our reasons for granting defendants’ motion for a stay:

In the several phases of this important litigation which have been before this Court since the first decision herein (Forrester & MacGinniss v. B. & M. C. C. & S. Mining Co., 21 Mont. 544, 55 Pac. 229), we have been closely confined in the scope of our examination by those limitations which restricted the inquiry of this Court upon prohibition and certiorcvri to the question of whether or not the lower court exceeded its jurisdiction and authority in the order appointing a receiver for the defendant corporation’s property, and directing delivery of the possession thereof to such receiver. Throughout those cases, and the motions thereunder, we have given to the elaborate and frequent arguments and briefs of the many distinguished counsel on the respective sides our undivided attention, moved by an earnest solicitude to reach correct legal results, to the end that the jurisprudence of the state, so far as it has been involved, might be settled, and remain under our action as fixed and stable as the eternal principles of truth which form its basis. So it was that we steadily refused to depart in the slightest degree from the law, as we understood it, and as it has been expounded for generations by the decisions of courts of the highest character, and the comments of the most illustrious jurists, not only of old, but of the present day.

Finally the defendant Montana corporation has assented to the jurisdiction of the lower court, surrendering its property to the receiver; and, instead of longer seeking relief by invoking further extraordinary and original writs at the bar of this Court, it now stands in the attitude of an appellant, praying for a stay of proceedings by which its enormous property may not be suffered to remain for operation or management in a receiver’s hands, at least until its appeal is heard and determined in this Court, and asking for a restitution of its property to its officers and agents until it may be otherwise ordered by this Court; and it announces that, if such stay and restituticn are granted, it is willing to accept any conditions which may be imposed by way of bond to fully indemnify plaintiffs against possible loss or damage.

This change in the remedy pursued carries with it an extension of the relief which may be granted. It opens for examination and for determination not alone the question of the power of the lower court, but it also authorizes us to decide whether that power has been wisely or unwisely exercised in making the order appealed from. It goes even further, in that it gives this Court at this time the clear right to grant a stay of proceedings under the order appealed from pending the determination of the appeal, and we are satisfied that, in order to make such a stay effective, this Court has full authority to make any order it thinks proper requiring the restitution of the property now possessed by the receiver to the corporation entitled prima facie thereto. (Levy v. Goldberg, 40 Wis. 308: Hill v. Finnigan, 54 Cal. 493.) To the argument that a stay including an order of restitution is equivalent to a decision that an appeal lies from the original order in the case appointing a receiver, from which an appeal does not lie in this instance, it is a complete answer to say that inasmuch as an appeal does lie, and is conceded to lie, under the Legislative Act of February 28, 1899, from the order made April 10, 1899, refusing to vacate the order appointing a receiver, the duty of the Court is to sustain this right of appeal, and effectuate the relief flowing therefrom. To do this the Court is obliged to go into an examination of what showing was made on the application to vacate the order, and to consider such showing, even though it involves a scrutiny of matters which were before the District Court when it made.the original order appointing the receiver, although from that original order, made December 15, 1898, as the law then stood, there was and is no appeal. To hold otherwise would be to nullify the right of appeal from an order refusing to vacate an order appointing a receiver, by confining the investigation to conditions which may have arisen since the enactment of the law affording such remedy. This view would circumscribe the investigation within limitations not expressed or implied in any fair construction of the text of the new law, and might result in a positive inability to have a receiver discharged or dispossessed until an appeal in the principal suit could be finally heard and disposed of. This would fritter away an important law by a narrow, technical construction, unwarranted by the letter and the true spirit of the statute. We find no definitive line of time, on one side of which are the matters which can be considered on a motion to vacate an order appointing a receiver, and on the other those which cannot, and the Court will not undertake to fix such a one. ■ The Legislature could have done so, but it did not. Hence we must regard the statute as authorizing an examination into everything back of the order of refusal, and upon which such order was based. The remedy by appeal from the order denying the motion to vacate the order appointing a receiver being clear, it matters not that a certain antecedent order is not appealable; for under the appealable order the Court must consider what is relevant, and relevancy is not affected by the fact that appeal from the antecedent order does or does not lie.

Now as to the merits on the prima facie showing, and to support this application for a stay: Defendants, representing 149,800 out of 150,000 shares of stock of the corporation, ask that this corporation be taken from a receiver’s hands. Their property is worth about $40,000,000 is paying large dividends, and is solvent in all respects; having upward of $1,000,000 in cash at present in its treasury. By deed, prima facie sufficient, it was reinvested, before this motion to vacate the order refusing to discharge the receiver was made, with all its property which it theretofore, in April, 1898, illegally transferred to a New York corporation. This reconveyance is prima facie an attempt to undo, and is an apparent undoing of, the wrong done to plaintiffs by the attempted transfer held ultra vires of the Montana corporation in Forrester et al. v. B. & M. C. C. & S. Mining Co., supra. Moreover, the corporation has offered to make a full accounting before a court or referee for all ores mined, shipped and sold, and all moneys received and disbursed on all accounts since the illegal transfer, and up to the present time. It has also signified its willingness to allow the injunction restraining it from transferring its property to a foreign corporation to be made perpetual. It likewise offers to suffer judgment against it cancelling the conveyances to the New York company, and declaring valid the reconveyance made. Furthermore, it says, and makes prima facie showing to support the' statement, that the management of the receiver appointed would not be as skilled as operation by its own servants, and would not result as advantageously to the many shareholders. These matters, among others disclosed, impel us to the belief that there is no sufficient reason why this corporation’s property, pending the decision on this appeal, should be kept longer" from the possession of the corporation’s agents, and under the control of the court, while, on the other hand, they constitute so strong a prima facie showing for suspending the authority of the receiver, and ordering him to turn over everything in his possession as receiver to the Montana company, that it now seems to be eminently right to order it to be done.

These orders for suspension and restitution are, by many well-considered cases, the proper ones to make in granting the stay. (State ex rel. Ry. Co. v. Hirzel, 137 Mo. 435, 37 S. W. 921; State v. Johnson, 13 Fla. 33; In re Moss Cigar Co., 50 La. Ann., 23 South. 544; Buckley v. George, 71 Miss. 580, 15 South. 46; Farmers National Bank v. Backus, 63 Minn. 115, 65 N W. 255.)

It may be that upon final hearing the decision will be against this prima facie showing. If so, the bond to be given will afford plaintiffs ample security, and the receiver can be reinvested with possession.

Courts will protect minority shareholders against fraud, or such gross mismanagement as amounts to- fraud. Still, the cases where receivers are appointed are exceptional; and never on a slight or unsubstantial showing should a court continue a receivership for a solvent corporation, which has apparently removed all necessity for the control of its property by the court, and where every possible protection can be afforded a minority shareholder who feels aggrieved.

It would be an unjustifiable and unprecedented application of legal principles, if a single shareholder in a going and rich and dividend-paying corporation, whether mining, industrial, or commercial, could, contrary to the wishes of ail other stockholders, oust the management of his company, tie up the property, and substitute for the regularly elected corporate authorities the equitable control of a court. We apprehend that, were such the law, courts would soon become business concerns for the execution of commercial affairs, rather than forums for the administration of law, while corporations would find their managers, not of their own regular selection, but those chosen by judges at the instance of a few dissatisfied stockholders.

But it is said the defendant’s officers are in contempt, and are without the jurisdiction of the courts of Silver Bow county, and therefore the corporation is not in a position to be afforded relief on this application for a stay. Not so. The district court heard the motion to vacate the order appointing the receiver. It has not held defendant’s officers in contempt, nor did it put its decision denying the motion on the ground of their being in contempt. If it had, different points might be presented. Certainly, until the lower court has decided that a contempt of its orders has been committed, we cannot pre-' sume the persons charged are guilty, and punish the corporation. If there are proceedings now pending in the lower court against the corporation or its officers for contempt, that court will dispose of them, and it is not for this Court to consider them here.

To conclude, in our judgment the stay should be granted,' and full restitution made pending final determination of this appeal, and the receiver directed to take no further action with reference to the affairs, interests or property of said defendant Montana company, or any part thereof, upon that company’s executing a bond in the sum of f250,000, with not less than two sureties, to be approved by the Clerk of this Court, in effect conditioned to pay any and all damages accruing to plaintiffs as shareholders on account of the stay granted by this Court, and any and all disbursements or expenses made or incurred by the receiver, and for which the defendant Montana company may be finally adjudged to be liable, and any compensation to which the receiver may be entitled, and for which defendant may be held liable, and any and all costs that may be properly chargeable in any proceedings had in and about the receivership. The receiver should be retained pending this appeal, unless the District Court otherwise orders. Counsel are requested to draw and submit to us an order agreeable to this memorandum opinion.

Stay granted.