termining the number of votes cast at said election for said J. D. Page; that the said ballots so counted by said commission are not the identical ballots nor all of the ballots which were cast at said election for said J. D. Page, but, by means of said count of said ballots, the said commission are about to and will certify the result of said vote, to the great prejudice of the said J. D. Page, all of which is contrary to law; that the plaintiff has no plain, speedy, or adequate remedy at law. The proceeding in mandamus which we have just decided was commenced on December 6, 1894, and pending and undetermined when this case was begun, on December 17, 1894. Both relate to identically the same matters, between the same parties, and were begun in the same court and before the same judge. One proceeding is the exact counterpart of the other. Comp. Laws Utah, § 3743. Judgment in the mandamus proceedings was rendered in favor of the plaintiff, and against the defendants, on January 19, 1895; and in this case judgment was also entered in his favor on January 22, 1895. The cases were heard together in this court. 39 Pac. 499.

We do not care to go into a lengthy discussion of this case. The action was a useless mutiplication of remedies, if it was a remedy at all. The whole question was before the court in a proceeding of which this is a mere counterpart. There would be as much reason to permit a plaintiff in ejectment, while his suit was pending, to bring an action in equity to enjoin his adversary from asserting a hostile title, as to permit this proceeding; or, to further illustrate, while mandamus proceedings were pending against a clerk to compel him to issue an execution in favor of the plaintiff upon a judgment in favor of the plaintiff, to permit also a proceeding in prohibition to prevent him from issuing one in favor of some other person. This kind of multiplication of remedies cannot be permitted. The judgment in one case is just as effectual as a judg. ment in both. There is but one duty for the defendants to perform, and, when they have performed that duty legally, their functions cease in that respect entirely. When they have performed their duty under the judgment in mandamus proceedings, they will no longer possess the power to issue a certificate of election for the office to which the plaintiff was elected; and, if they should do so, their act would be of no more effect than if any other equal number of men holding no official position had done the same thing. We think the court below erred in entertaining this proceeding, and are of the opinion that the judgment should be reversed; that the case should be remanded, with directions to the court below to dismiss the proceedings; respondent to pay the costs of this court and of the lower court.

MERRITT, C. J., and KING, J., concur.

(11 Utah, 137)

COOMBS v. SALT LAKE & FT. D. RY. CO. et al.

(Supreme Court of Utah. Feb. 23, 1895.) APPEAL-JUDGMENT-EFFECT OF REVERSAL.

Where, in an action against a railway company for damages from the construction of its road, and to enjoin such operation till the damages are paid, the court awards plaintiff damages, but denies an injunction, and plaintiff appeals from that part of the judgment refusing an injunction, and neither party takes other exceptions, and the appellate court decides the refusal of an injunction error, and reverses the judgment, defendant is not entitled to a new trial on the question of injunction.

Appeal from district court, Salt Lake county; before Justice Samuel A. Merritt.

Action by Martha Ann Coombs against the Salt Lake & Ft. Douglass Railway Company and others. There was a judgment for plaintiff for $3,300 as damages, and ordering her to execute a deed conveying the easements and property taken to defendants, but denying the injunction demanded. From that portion of the judgment denying the injunction, plaintiff appeals. Reversed.

James A. Williams, for appellant. Grand Young, for respondents.

Le

KING, J. From the record in this case it appears that suit was brought by the plaintiff against the defendant corporations to secure a permanent injunction, preventing them from operating their road or running cars thereon, unless there was paid to plaintiff, within such time as might be determined by the court, a sum of money sufficient to compensate her for the lasting injuries accruing to her property through the construction and maintenance of defendant railroad. The cause was tried by the court, which found in harmony with the material allegations of the complaint. Among other things, the court found that plaintiff was the owner of valuable property in Salt Lake City, which was bounded on the north and west by public streets, and that defendant Salt Lake & Ft. Douglass Railway Company constructed its road along said streets, and in front of her property, and in so doing made a large and deep cut, as a result of which one of the streets was ruined, and egress from and ingress to said premises rendered impossible; that a corner of plaintiff's property was entered upon and cut away in the construction of said road; that defendant never acquired, by purchase or otherwise, the easements and property injured; that, since the construction of said road, defendant Salt Lake & Ft. Douglass Railway Company has continuously operated its trains on the same, and the Utah Central Company, since its incorporation, has and now is running its trains thereon, under a lease from the former; that the running and operating of said trains, which continues night and day, jars said premises and the residences thereon, and throws ashes and cinders, sparks and smoke, thereon, and has repeatedly set fire to said

residences; that said property is in the immediate neighborhood of, and is especially fitted for, superior residences, but that it has been greatly damaged by the construction and operation of defendant's road; that said damages amount to $3,300; that the injury thereto is permanent in its character, and is continuously and constantly recurring, so that it is a great hurt, inconvenience, and damage to said property and easements and hereditaments appurtenant thereto; that said defendants are insolvent. Upon these find

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ings of fact and the conclusions of law, the court awarded plaintiff judgment for $3,300, as damages, together with costs against the Salt Lake & Ft. Douglass Railway Company, and ordered that plaintiff execute a deed to it conveying the easements and property taken and injured, and release it from further damages upon the payment of said sum. was further ordered that the injunction and injunctive relief be denied, and that the plaintiff do not recover as against the Utah Central Railway Company. No exceptions whatever were taken by the defendants to any proceedings or findings or judgment of the court. The plaintiff excepted only to that part of the decree denying injunctive relief. Subsequently she appealed to the supreme court of the territory, assigning as error the refusal of the court to grant the injunction as prayed for in her complaint. The record before this court discloses that the former appeal was taken on the judgment roll, and that the only portion of the decree appealed from was that denying plaintiff an injunction nisi; that both parties were satisfied with the findings of facts, took no exception thereto, nor did either ask for a new trial; that the error assigned was that the only portion of the judgment appealed from was not supported by the findings of fact. pellate court decided: "It is the duty of the court to enjoin the company's (defendant's) use of the property, unless within a specified time it will pay the damage assessed. follows that the court erred in not granting the injunction prayed for upon the conditions named. Judgment reversed, and the case is remanded." Coombs v. Railway Co., 9 Utah, 322, 34 Pac. 248. Upon filing the remittitur in the lower court, with a certified copy of the opinion, appellant moved the court to enter a proper judgment, and grant an injunction nisi, in accordance with the opinion of the supreme court. The motion was overruled, and from the order overruling the motion plaintiff appeals.

The ap

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One question only is presented for determination, viz.: What decree ought the lower court to have entered, with the record and remittitur before it? It is contended by the appellant that it was the duty of the lower court to look into the entire record, enter a decree awarding an injunction, unless respondent paid the damages theretofore found, within a reasonable time determined by the court; and the respondent earnestly insists that the

decision of the supreme court was tantamount to a reversal of the case, and a direction to grant a new trial, and that the case was open for a retrial, at least upon the injunctive feature. It is evident from the "opinion" of the court (9 Utah 322, 34 Pac. 248) that the question presented by the appeal was whether or not the trial court had erred in denying the injunction. It was an equitable action, the damages being incidental, inasmuch as the insolvency of the defendant precluded any recovery, except through the employment of the injunctive powers of the court. The power of the court to grant an injunction was discussed, and it was held that the injunction should have been granted. "It follows that the court below erred in not granting the injunction prayed, upon the conditions named. Judgment reversed, and the case is remanded,"-is the language of the opinion. We think this language susceptible of but one interpretation. It was a decision that the plaintiff was entitled to a perpetual injunction, enjoining the operation of defendant's railroad (upon her tendering a deed as provided in the findings of fact), unless plaintiff's damages were paid. The words "conditions named" unmistakably referred to the tender of a proper deed upon the part of plaintiff, and the payment of the damages upon the part of the defendant. The concluding sentences from the "opinion," as above set out, were equivalent to a direction that the lower court look into the record, and ascertain the conditions, and award plaintiff the injunctive relief prayed for, unless, within such reasonable time determined by the court, plaintiff's damages were paid. A new trial was not ordered. A re-examination of the issues was not contemplated, and, in view of the record, not required. The plaintiff's injury was a recurring one. The insolvency of the defendant left but one remedy. It was a proper case for an injunction. It ought to have been granted by the trial court. This error was reversed, and, upon the remanding of the case, there was but the one duty for the court to perform,-correct it as directed by the supreme court. What was to be tried, upon respondent's theory that the supreme court granted a "new trial"? No appeal was taken from that portion of the decree awarding damages, so that the judgment for damages was res adjudicata. The findings, having been full and adequate upon every material issue raised by the pleadings, and not having been excepted to by either party, stand as the conceded facts of the case. They are in effect an "agreed case," and the lower court will always on an agreed case, stating a real cause of action, enter judgment. If it errs, the upper court will reverse and remand, not for the purpose of forcing the parties to agree upon a different case, but in order that the lower court may enter a proper judgment in accordance with the opinion. The upper court may, in terms, direct the lower court to enter a particular judgment; but if it sim

ply reverses and remands the case, without directing what kind of judgment should be entered, then it is the duty of the lower court to look into the record, and enter such judgment as the opinion and record warrant. No evidence was carried up on the former appeal in this case, and this court is bound to presume that the special findings made by the court were warranted by the evidence; and the only question before the court on the former appeal was whether the facts as found warranted an injunction. It was held that they did. If it had been intended that a new trial should be granted, it would have been so ordered. Where it is possible, the upper court should end the litigation; and where the facts are before it, and all the material issues are disposed of, and it is plain that the party against whom the reversal is pronounced cannot prevail in the suit upon retrial, the proper judgment should be directed on the findings. "Where all the material issues are disposed of by the findings, it seems unreasonable, and contrary to settled rules of practice, to presume, in the absence of anything in the record to such effect, either that the respondent did not do his duty in producing all of his evidence, or that the findings of the court upon such evidence were incorrect. The natural presumption, in the absence of anything in the record to the contrary, is that the respondent had a full and fair trial; that he was afforded every opportunity to produce all of his evidence; and that he did not keep back anything, but did what the settled rules required of him, and produced all of his proof; and that the action of the court thereon was regular and correct. Now, if such be the case (the policy of the law being adverse to the prolonging of the litigation, if it can be avoided), it would seem to be an unsound rule which compels the party to go through the strife of a second trial upon the bare possibility, not founded upon anything in the record, that the respondent might be able to make a different case upon retrial." Hayne, New Trial, § 296.

We do not think this view is opposed by the cases cited by respondents. It cannot be doubted but that the lower court has no authority to enter a different judgment from that directed by the appellate court. The principal case upon which respondent relies is Griffin v. Marquardt, 17 N. Y. 28; and counsel furnishes us with an excerpt from the opinion of the court, which is: "Where, however, the judgment at special term is reversed for error in law, a new trial should be awarded, unless it is entirely plain from the pleadings or the very nature of the controversy that the party against whom the reversal is pronounced cannot, upon any fresh evidence, prevail in the suit. It is proper to say, and to say it with great distinctness, as the opinion of this court, that extreme caution ought to be exercised in refusing a new trial where judgments are re

versed. The discretion of the appellate courts should be exercised in that direction only in cases where it is entirely clear, either from the pleadings or from the very nature of the controversy, that a party against whom the reversal is pronounced cannot prevail in the suit." With this view we concur. The rec

ord in the case at bar discloses that the defendants admitted the construction of the road upon the streets named, the making of the excavations therein, and the continuous use of said railroad for the operation of trains thereon, and, to defeat plaintiff's action, contended that the franchise was obtained from Salt Lake City to construct said railroad along said streets, and that the trains were operated thereon for a number of years without complaint, protest, or objection from plaintiff, and that, by reason of delay or laches and long operation of the premises, plaintiff should not be allowed to maintain her action for injunction against the defend. ants. The question of damages having been eliminated from the case by the judgment of the court, unappealed from, a question of law only was presented upon the appeal, and this question was determined in favor of the appel'ant. In the language of the case last cited, it was "entirely plain from the pleadings and the very nature of the controversy that the party against whom the reversal was pronounced could not, upon any fresh evidence, prevail in the suit." The case of Guernsey v. Miller, 80 N. Y. 183, is relied upon by respondents' counsel to sustain the position that the action of the supreme court in the case at bar was tantamount to a direction for a new trial. In that case the court say: "We think, however, that the general term erred in directing judgment in favor of Van Kleeck. It cannot be said that upon a new trial the case would remain unaltered. The facts are not undisputed, and as it does not appear that the respondent is entitled to judgment in his favor, as a matter of law, the issues made by the respective parties should have been sent back to the trial court for its determination." We think that, from all that appeared in this case upon its presentation to the supreme court, the appellant was entitled to judgment in her favor, as a matter of law. The case of National Inv. Co. v. National Savings, etc., Ass'n (Minn.) 53 N. W. 546, is instructive on this question. The action was tried, without a jury, by the court, who filed findings of fact and conclusions of law, and ordered judgment for the plaintiff. Upon appeal to the supreme court by the defendant, judgment was reversed, the words employed by the court being "Judgment reversed." Upon a mandate of the supreme court, defendant moved for judgment, without further trial, which motion was granted. From the order denying a new trial, plaintiff appealed, and the case was affirmed. The court say: "The effect of a simple reversal of judgment depends upon the grounds upon which the reversal is based, as expressed in

the opinion of the court. In the absence of any formal direction, the opinion is to be consulted for the purpose of determining the effect of the reversal." An examination of the opinion of the court in the present case shows that the judgment was reversed, not because of any error in law occurring at the trial, or because the findings of fact were not justified by the evidence, but solely upon the ground that, upon the findings of fact as made, the defendant, and not the plaintiff, was entitled to judgment. Upon such a state of facts no new trial was necessary, but, as was said in Jordan v. Humphrey (Minn.) 21 N. W. 713, merely the correction or modification of the judgment; so it shall answer the formal definition of "judgment," to wit: "The sentence of law upon the record." Where the judgment is reversed solely upon the ground that it is not the one that should have been rendered upon the verdict or findings of fact, the effect of simple reversal is to send the case back, not for new trial, but merely for correction of judgment. In the case of Treadway v. Johnson, 39 Mo. App. 176, the court say: "The only question which seems to be presented on this appeal is whether the court erred in entertaining the defendant's motion to enter judgment, without giving the plaintiff an opportunity of retrying the cause. The propositions involved in this cause were not propositions of fact, but propositions of law. The contract between the parties was entirely in writing, the meaning and legal effect of which the court construed when the case was here on the first appeal. Under these circumstances, there was nothing for the circuit court to try after the cause was remanded, and the only judgment it could render, in conformity with the direction of our opinion, was the judgment it actually did render." And, where an action was brought to reform a deed, judgment was for the defendant, and the plaintiff appealed. No dispute arose as to the facts found, the only question being whether, on these facts, plaintiff was entitled to judgment. The court of appeals held that he was, and remanded the case, that the deed might be reformed, and judg ment entered for damages. Under these circumstances, it was held that the lower court had no right to retry the facts. Butler v. Barnes (Conn.) 24 Atl. 328. In the case of Gaines v. Rugg, 148 U. S. 228, 13 Sup. Ct. 611, it appears that the decree was entered by the circuit court, awarding possession of certain lands to the plaintiff, and that he have an accounting. On appeal to the supreme court it held that there was no error in the proceedings below in respect to the title and possession of the lands, but reversed the decree for error in certain items of accounting. The order of the court in reversing the case was that the case be "remanded for further proceedings to be had therein in conformity with the opinion and decree of this court, as according to right and the laws of the United

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States ought to be had." The lower court attempted to reopen the case, and mandamus proceedings were instituted, although the court stated that an appeal would lie. court say: "Because this court was dissatisfied with the decree in respect to the accounting, and only for that reason, it reversed the decree; but it remanded the cause to the district court, with a direction, as the opinion and mandate explicitly state, for further proceedings to be had therein in conformity with the opinion of this court. It did not disturb the findings and decrees of the circuit court in regard to the title and possession, but only its disposition of the matter of accounting. The mandate and opinion, taken together, although they use the word 'reversed,' amount to a reversal only in respect to the accounting, and to a modification of the decree in respect to the accounting, and to an affirmance of it in all other respects. It is contended for the respondent that the decree of this court was one absolutely reversing the decree of the circuit court; that the circuit court had a right, therefore, to proceed in the case of the language of the mandate, not merely 'in conformity with the opinion and decree of this court,' but also 'according to right and justice'; and that, therefore, it had authority to permit defendant to take further testimony in the support of his exceptions,'-in other words, that the whole controversy would be reopened as if it had never been passed upon by this court as to the title and possession of the land. This cannot be allowed, and is not in accordance with the opinion and mandate of this court."

From the authorities cited, and in reason, we are of the opinion that the lower court should have entered a decree as prayed for by the appellant, upon receiving the remittitur from this court; and that it was error in overruling plaintiff's motion for an order entering a final judgment and injunction nisi. Accordingly, the judgment of the lower court is reversed, and the cause remanded, with directions that the lower court, upon the execution of a deed by the appellant as set forth in the judgment of the trial court, enter a final judgment, and grant an injunetion, as prayed for in plaintiff's complaint, unless the defendant pays, within such time as the court may determine, the judgment for damages heretofore entered in said court. SMITH, J., concurs.

(15 Mont. 474)

In re HIGGINS' ESTATE. (Supreme Court of Montana. March 4, 1895.) SETTLEMENT OF DECEDENT'S ESTATE - NOTICE TO CREDITORS-ACCOUNTING BY EXECUTORS-QUALIFICATION AS TESTAMENTARY TRUSTEES.

1. Under the probate practice act (section 147). requiring executors of estates exceeding $10,000 in value to publish notice to creditors to present claims within 10 months from the date of the first publication, no final decree that

there are no debts can be entered until the time limited in the notice has expired.

2. Where the executors gave no notice to creditors to present claims against the estate, ex parte affidavits of persons interested in the estate are insufficient to prove that there are no outstanding debts.

3. Where executors present the will for probate to the district court sitting in probate, and qualify for the performance of their duties thereunder, the court has jurisdiction to order them to account, and file an inventory of the estate.

4. Under the probate practice act, authorizing executors to collect the rents of the real estate, to bring suit to quiet title or to recover possession, and making them liable for wasting the estate, they have the right to the possession of the real estate after duly qualifying.

5. The liability of an executor for the proper performance of his duties is terminated only after he has complied with the statutes, and the court has approved his settlement, and ordered a distribution.

6. Where executors are also made trustees under the will, the two capacities are distinct and separate, and the executors, having duly qualified as such, cannot assume the rights and duties of trustees until the court has approved their accounts as executors, and ordered a distribution.

7. The court, on approving the account of an executor, who is also a trustee under the will, and ordering a distribution of the estate, may direct him to credit his account as executor with so much of the estate as may be ordered transmitted to his account as trustee.

Appeal from district court, Missoula county; F. H. Woody and Theo Brantly, Judges. This is an appeal from an order of the district court refusing to quash a former order, in compliance with the statute, directing Julia P. Higgins and others, qualified as executors and trustees, to file in said court a complete inventory and appraisement of the estate of their testator. Affirmed.

Appeal by Julia P. Higgins, Francis G. Higgins, and George C. Higgins, executors and trustees of the last will and testament of Christopher P. Higgins, deceased, from an order made by the district court overruling the motion of said executors and trustees to set aside an order made requiring said ex ecutors and trustees to file in said court a complete inventory and appraisement of the estate of the said Christopher P. Higgins, deceased, situated in the state of Montana, which has come into their hands as such executors. The order referred to recites that Francis G., George C., and Julia P. Higgins were on November 20, 1889, duly appointed executors of the last will and testament of Christopher P. Higgins, deceased, and all duly qualified as such executors on the 20th of November, 1889; that more than three years have elapsed since their qualification as such executors; and that no inventory and appraisement have been filed.

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court therefore ordered that they prepare and file in said court, on or before July 8, 1893, a full inventory and appraisement of the estate of the deceased, and which had come into their hands as such executors, as required by law. The motion to set aside the order of the court was based upon the

grounds that the court had no jurisdiction in the matter of said estate, coming under the probate laws of the state of Montana, to make any other order with reference to said estate, but that the jurisdiction to make any orders is vested by law in a court of equity; that a court of equity alone had jurisdiction with reference to said estate since the order probating the will; that the district court, as a court of probate, has no jurisdiction to make any order relating to said estate, or to direct the said Julia, Francis, and George Higgins to do any act in said estate. The motion was based upon the will, and affidavits of Francis G., George C., and Julia P. Higgins.

The will and testament is. as follows: "First. I give, devise, and bequeath to my executors, hereinafter named, all and singular my property, real and personal, wheresoever situated, and all moneys belonging to me, of which I may die possessed, in trust, nevertheless, and to and for the following uses and purposes, namely: Second. I direct that my said executors shall continue to carry on the banking business in which I am now engaged under the name of C. P. Higgins Western Bank, and to that end that they shall, so soon after my death as shall be expedient, proceed to incorporate said bank, with a capital stock of one hundred thousand dollars, under the laws of the United States or the laws of Montana; and, when so incorporated, my said executors shall transfer to said bank all of the moneys, property, and assets now used in the business of said bank, and so much of any other funds that may come into the hands of my executors as shall be necessary to make up the amount of the capital stock of said bank; and that, upon the incorporation of said bank, the capital stock of the same shall be equally divided among my heirs, hereinafter named. Third. I further direct my said executors, hereinafter named, to proceed to construct the block of buildings now in the course of construction by me, according to the original plan, designs, and contracts, under which the same is now being constructed. Fourth. In order to carry out the purposes and directions above mentioned, I hereby authorize, empower, and direct my said executors to sell, convey, and dispose of any of my estate, whether real or personal, which may come into their hands. Fifth. I further authorize, empower, request, and direct my said executors to sell and convey any of the estate and property belonging to me which may come into their hands, wheresoever situate, in such manner as may in their judgment may be most for the interest of my estate, and to convert the same into cash; and I direct my said executors to invest such proceeds of sale, with all other moneys which may come into their hands, unless herein otherwise provided, and keep the same invested in safe manner, as in their judgment may seem best for the joint and