Εικόνες σελίδας
PDF
Ηλεκτρ. έκδοση

ceed in increasing the amount of damages finally awarded to him in such proceeding, he shall not recover the costs of such appeal."

These expressions make it obvious, in our opinion, that the words "any assessment," as used in the first sentence of the section, are intended to refer, not to the findings or specifications going to make up the award, but to the award itself-the total assessment of damages as made pursuant to section 7341. In this we are confirmed by the language of cognate sections:

"No improvements upon the property subsequent to the date of the service of summons shall be included in the assessment of compensation or damages." Section 7342.

"Within thirty days after making their appraisement and the assessment of damages, the commissioners must file a report," etc. Section

7343.

"The plaintiff must, within thirty days after final judgment, pay the sum of money assessed."

Section 7346.

"At any time after the report and assessment
of damages of the commissioners has been made
and either before or after appeal from
*
assessment
** the court * *

such
shall have power to make an order that upon
payment into court
of the amount of
damages assessed, *
the plaintiff be au-

*

thorized, if already in possession *
continue in such possession:
however, that

* *

the court

*

to

may

[merged small][merged small][merged small][ocr errors][merged small][merged small][merged small]

state was bound to prove beyond a reasonable
The court, having charged the jury that the
doubt every material fact necessary to make out
the offense, need not repeat the rule in negative
form or apply it to isolated facts.
3. CRIMINAL LAW

814(13)-INSTRUCTIONS-

APPLICABILITY TO EVIDENCE.

ceased, employés on a train, having quarreled Where it appeared that defendant and de

over cards, defendant went into the kitchen of a dining car adjoining the parlor car in which deceased retired, armed himself with a butcher knife, and an hour later returned and stabbed deceased, an instruction that the prosecution had that defendant was at fault in the first instance the burden of proving beyond a reasonable doubt. in bringing on the difficulty, or being the aggreswas properly refused, being inapplicable to the evidence.

sor,

4. HOMICIDE

DEFENSE.

244(3)—TRIAL-AFFIRMATIVE

For a defendant to avail himself of an affirmative defense, after proof of a homicide, he must under Rev. Codes, § 9282, furnish sufficient evidence to raise a reasonable doubt of his guilt. HOMICIDE 297-TRIAL-INSTRUCTIONS.

In a prosecution for homicide, a requested charge that, if any proof offered by the state tends to show accused was excused or justified, then he should be acquitted, is obviously erroneous, even though under Rev. Codes. § 9282, accused could avail himself of an affirmative defense established by the state's evidence. 6. CRIMINAL LAW

TIONS-REQUEST.

825(1)-TRIAL-INSTRUC

* Provided, * * require the plaintiff in addition to paying into court the amount of damag-5. es assessed, to give bond * * conditioned to pay defendant any additional damages and costs over and above the amount assessed; * the amount assessed as damages by the commissioners or by the jury on appeal, as the case may be, shall be taken and considered as just compensation; but the plaintiff, by payment into court of the amount assessed, or by giving securit as above provided, shall not be thereby prevented or precluded from appealing from such assessment; in all cases where the plaintiff deposits the amount of the assessment *the defendant * * * may at any time demand and receive the money so deposited, and shall not by such demand or receipt be barred or concluded from his right of appeal from such assessment, but may, notwithstanding, take and prosecute his appeal from such assessment; Provided, that if the amount of such assessment der in the first degree, and, from the judgis finally reduced on appeal by either party,ment and an order denying new trial, he apsuch defendant who has received the amount peals. Affirmed.

[blocks in formation]

In a prosecution for homicide, where the court correctly charged the jury in the terms of the statute, accused, if desiring further amplification, was bound to request appropriate charges.

Appeal from District Court, Silver Bow County; John V. Dwyer, Judge.

Sherman A. Powell was convicted of mur

E. F. O'Flynn and J. B. Flynn, both of Butte, for appellant. S. C. Ford, of Helena, and N. A. Rotering, of Butte, for the State.

HOLLOWAY, J. Sherman A. Powell was convicted of murder in the first degree, and

The bearing of this language and its inap-appeals from the judgment and from an plicability to an appeal from part of an order denying him a new trial.

[blocks in formation]

[1] 1. The court sustained an objection to a question asked the witness Yammer, but later the witness was recalled, the question repeated, and then answered fully. No prejudice resulted from the first ruling, even if it was erroneous, which we do not concede. State v. Tudor, 47 Mont. 185, 131 Pac. 632;

BRANTLY, C. J., and HOLLOWAY, J., State v. Booth, 46 Mont. 334, 127 Pac. 1017. [2] 2. Error is predicated upon the refus-

concur.

al of the court to give defendant's request- [and, so employed, the error is apparent at ed instructions 1 and 2, as follows:

"(1) You are instructed that the burden of proving beyond a reasonable doubt the fact that the defendant was at fault in the first instance in bringing on or provoking the difficulty, or in other words, that he was the aggressor in the case, rests upon the prosecution, and not upon the accused person.

a glance. Assume that one witness for the state testifies to facts which tend to mitigate, justify, or excuse, while all the other evidence tends to the contrary conclusion, the defendant is not entitled to his discharge because of this fact, but it still remains for the jury to say whether, upon the whole case "(2) You are instructed that, if any proof offered by the state tends to show that the defend-made, the state has established the defendant was excused or justified in killing J. H. ant's guilt beyond a reasonable doubt. The Montgomery, then you should acquit the defend-use of the word "any" before the word ant." "proof" destroys the sense, if the instrucOf course, the burden is never upon the tion was intended to convey the idea expressaccused to prove any fact beyond a reason- ed in section 9282, Revised Codes. In that able doubt, much less to prove that he him section the word "proof" is used to desigself was the aggressor; but, the court hav-nate the effect of all the evidence produced ing told the jury that the state must prove beyond a reasonable doubt every material fact necessary to make out the crime charged, it was not necessary to repeat the same rule in the negative form, or apply it to one isolated fact.

by the prosecution.

by raising a reasonable doubt of his guiltthe defendant may avail himself of his affirmative defense without proof on his part. This is the meaning of section 9282 above, and this analysis is sufficient to disclose the error in the offered instruction.

In order to avail himself of any affirmative defense, such as self-defense, after proof has been made that homicide was committed by the defendant, the statute imposes upon him the burden of furnishing sufficient evidence [3] The first portion of instruction 1 is to raise a reasonable doubt of his guilt. not a correct statement of the law, and is State v. Leakey, 44 Mont. 354, 120 Pac. 234. not applicable to the facts of this case. In If the effect of the evidence offered by the some instances it may become a material in-state is to show, or tend to show, mitigaquiry to determine who was the aggressor tion, justification, or excuse-in other words, in the first instance, but it is not always so. if the state makes out the defense for him The evidence discloses that deceased and defendant, employés of the Great Northern Railway Company, became engaged in a quarrel over a game of cards; that the quarrel subsided and deceased unrobed and went to bed in a parlor car; that defendant left his presence, went to the kitchen of a dining car adjoining the parlor car, secured a butcher knife, and about an hour later returned to where deceased was in bed and stabbed him with the knife. It is wholly immaterial who was at fault in the first instance, if the deceased withdrew from the quarrel and defendant then formed the deliberate purpose to kill, armed himself, and If the defendant desired that these provicarried his intention into execution. Defend- sions be amplified by a further statement ant's version is that he armed himself for defining accurately the quantum of proof redefense only, that he returned to get his quired as indicated by this court in numercoat from the car where deceased was sleep-ous decisions (State v. Peel, 23 Mont. 358, ing, that deceased attempted to shoot him, 59 Pac. 169, 75 Am. St. Rep. 529; State v. and that he struck with the knife in necessary self-defense. If this story had been accepted by the jury, a different verdict would have been commanded; but in the light of all the surrounding facts and circumstances the jury were at liberty to discredit his testimony, which they must have done.

[6] The court gave in one instruction the text of section 9282, and further informed the jury, in the language of section 8303, Revised Codes, that:

"The homicide appearing to be justifiable or excusable, the person charged must upon his trial, be fully acquitted and discharged."

Felker, 27 Mont. 451, 71 Pac. 668; State v. Crean, 43 Mont. 47, 114 Pac. 603, Ann. Cas. 1912C, 424), it was incumbent upon him to tender an instruction stating the rule (State v. Gordon, 35 Mont. 458, 90 Pac. 173; State v. Tracey, 35 Mont. 552, 90 Pac. 791). By his failure to offer such an instruction he is preincluded now from complaining of the instructions which follow the language of the statute and are not inherently erroneous. The judgment and order are affirmed. Affirmed.

Instruction 1 is quoted from an opinion Lawson v. State, 171 Ind. 431, 84 N. E. 974, but does not include the context which makes the observation of the court pertinent to the facts of that particular case.

BRANTLY, C. J., and SANNER, J.,

[4, 5] 3. The meaning of instruction 2 is not very clear. The word "proof" is evidently used as synonymous with "evidence," cur.

con

STOCKMEN'S NAT. BANK OF FT. BEN-
TON v. HOFELDT et al. (No. 3803.)
(Supreme Court of Montana. Nov. 15, 1917.)
1. MORTGAGES 151(5)—PRIORITY OF JUDG-
MENT LIEN-PRIOR EQUITABLE TITLES.
The lien of a judgment yields to equitable
right in a prior mortgagee to a lien on land
left out of the mortgage through mutual mistake.

19, 1911, the defendant Edith J. Hofeldt made her final proof on her desert claim. On the same day said defendant, by way of further security for her indebtedness to plaintiff theretofore existing, executed a mortgage to plaintiff which was intended to include all of said desert land entry; but, as the court found, there was omitted from said mortgage, by the mutual mistake of both 2. ATTACHMENT 58-PUBLIC LANDS-LIEN. An attachment on a desert claim before the parties, "lot 2, section 7, township 28 north, entryman has complied with all the preliminary range 19 east." On November 16, 1911, the acts prescribed by law for the acquisition of defendant Edith J. Hofeldt executed and detitle thereto creates no valid lien on the entry-livered to plaintiff a new mortgage, coverman's inchoate right or after title is acquired. 3. PUBLIC LANDS 135(1)-INCHOATE RIGHT OF ENTRYMAN.

Under Act Cong. March 28, 1908, c. 112, § 2, 35 Stat. 52 (U. S. Comp. St. 1916, § 4682), concerning desert lands, and providing no assignment of any entry thereof made for the benefit of any corporation, or association, shall be authorized a corporation cannot become an assignee by operation of law as a creditor of an entryman.

Appeal from District Court, Blaine County; John A. Matthews, Judge.

Action to foreclose a mortgage by the Stockmen's National Bank of Ft. Benton, a corporation, against Herman H. Hofeldt, Edith J. Hofeldt, George W. Duffield, Emma Duffield, and the Bogy Mercantile Company, a corporation. From a judgment and decree giving preference to a lien of the Mercantile Company, the plaintiff appeals. Modified and affirmed.

Stranahan & Stranahan, of Havre, for appellant. R. E. O'Keefe, of Chinook, for respondent.

WORD, District Judge. Plaintiff and appellant brought this action to foreclose a number of mortgages, only one of which is material to a consideration of the questions presented on this appeal.

ing said lot No. 2 so omitted from her said mortgage of August 19, 1911. Finding of fact No. 4 is as follows:

"That said mistake was the mutual mistake of the parties, and the property described in the last-mentioned mortgage was the land embraced within the Edith J. Hofeldt desert entry."

The court further found that:

"As between said defendant Hofeldt and this

plaintiff, said mortgage (on said lot 2) was a lien against said property, but not a valid lien against said property, as against attachment creditors, or a judgment secured in good faith on a valid existing debt against said Hofeldt, prior to November 16, 1911, the date of said correction mortgage."

The court further found that prior and up to the 19th day of August, 1911, the title to the lands embraced within the desert entry of said Edith J. Hofeldt was in the govern

ment of the United States, and that the attachment levied in the action of the Bogy Mercantile Company against the defendant Hofeldt was of no effect, but that the judgment of said Bogy Mercantile Company against Hofeldt of October 5, 1911, was a valid lien against said lot 2, of said section 7, and that the sheriff's deed for said land to said company was a valid deed. From a judgment and decree giving preference to the lien of the judgment of October 5, 1911, in favor of the defendant Bogy Mercantile Company as against the corrected mortgage to plaintiff of November 6, 1911, the plaintiff has appealed.

In his brief, counsel for the defendant and respondent Bogy Mercantile Company takes the position that the court below was correct in holding that the lien of the judgment of October 5, 1911, was valid as against the corrected mortgage to the appellant, ex

Prior to the 10th day of May, 1911, Edith J. Hofeldt had entered as a desert claim certain lands in Choteau county, particularly described in the pleadings. On May 10, 1911, the defendant Bogy Mercantile Company, a corporation, commenced an action against the defendants Herman H. and Edith J. Hofeldt, in the district court of Choteau county, and caused a writ of attachment, issued in said cause, to be levied upon said desert land entry of the defendant Edith J.ecuted and delivered November 16, 1911, but Hofeldt on June 21, 1911. On October 5, that the court erred in its findings and con1911, judgment by default in the sum of $2,- clusions upon which said judgment rests. 451.88 was entered against the defendants Counsel for respondent now contends that in said action. Execution issued on said the trial court erroneously found that the atjudgment. On the 9th of December, 1911, tachment lien of the defendant Bogy Mercansaid desert entry was sold to the defendant tile Company was without effect, for that Bogy Mercantile Company and a sheriff's the legal title to the lands involved was, at certificate of sale issued therefor. Said the time of the attachment, in the United property was not redeemed within the time States. The main contention and argument allowed by law, and on December 20, 1912, of counsel for respondent is that said attachthe defendant Bogy Mercantile Company re- ment was valid as of the date it was made; ceived a sheriff's deed for said property. that by it, respondent obtained a lien prior This deed was never recorded. On August to any mortgage lien of appellant upon said

desert claim, and that upon this theory, and acquire any rights in or to the desert entry for this reason, the judgment appealed from of the defendant Edith J. Hofeldt prior or should be upheld. superior to the lien of the mortgage of the plaintiff thereon.

[1, 2] This court is of opinion that the judgment on review cannot stand. Under the facts, the court was in error in holding that the judgment which respondent obtained against the defendant Hofeldt on October 5, 1911, took precedence of the mortgage to appellant of August 19, 1911, as corrected on November 16th of the same year. The lien of a judgment is a general lien and must yield to all prior equitable titles in others. Rockefeller v. Dellinger, 22 Mont. 418, 56 Pac. 822, 74 Am. St. Rep. 613; Pomeroy's Eq. Juris. § 721. Counsel for respondent does not contend otherwise. Nor can the judgment be upheld upon the theory that the attachment levied upon the lands embraced within the desert entry created a valid lien, contrary to the express finding of the court below.

Prior to the time when the defendant Edith J. Hofeldt made full payment for the land included within her desert entry, and complied with all the preliminary acts prescribed by law for the acquisition of title thereto, she had no vested interest in the lands occupied by her. Until she made final proof, she had but an inchoate right which would ripen into a complete equitable title when she had paid the full purchase price therefor, and had performed all the conditions requisite to entitle her to a patent. Up to the time when her right to a patent became a vested right, the power of disposing of said lands was in the United States, and this right could not be limited by any action or proceeding of third parties.

No case has been cited holding that an attachment lies against an inchoate right of an occupant of public lands. By way of analogy, attention is directed to the fact that the laws of this state, with reference to the taxation of property, are broad and comprehensive. As to them, this court has held that before public land in the possession of an occupant thereof "can be taxed by the state as the property of the beneficial owner, a perfect equitable title must be vested, and the consideration fully paid to the United States." Johnson v. County of Lincoln, 50 Mont. 253, 146 Pac. 471.

[3] If the defendant Bogy Mercantile Company can be said to be an assignee of the defendant Edith J. Hofeldt, it must be an assignee by operation of law. But this cannot be, for the act of Congress of March 28, 1908, § 2 (U. S. Comp. St. 1916, § 4682), concerning desert lands, provides that "no assignment of an entry" thereof made "to or for the benefit of any corporation or association shall be authorized or recognized." Our conclusion is that neither by the attachment of June 21, 1911, nor by the judgment of October 5, 1911, did the defendant Bogy Mercantile Company

This cause is remanded to the district court, with directions to modify the judgment herein, so as to establish the priority of plaintiff's mortgage on lot 2 of section 7, in township 28 north, range 19 east, in Blaine county, Mont., over any interest or claim of the defendant Bogy Mercantile Company to said land; to include said lot 2 in the order of foreclosure, and direct foreclosure of the mortgage on said lot 2, together with the other lands mentioned in said judgment, and when so modified, the judgment will stand affirmed. The plaintiff and appellant will recover its costs of this appeal as against the defendant Bogy Mercantile Company. Remanded, with directions.

SANNER and HOLLOWAY, JJ., concur. BRANTLY, C. J., not sitting.

[blocks in formation]

Assignments of error to admission and exclusion of evidence cannot be considered on appeal, where the evidence requisite for their con sideration is not in the transcript on appeal. 5. APPEAL AND ERROR 703 SCOPE - RECORD.

An assignment of error to refusal of instruction cannot be considered, if the instruction is not identified or otherwise presented as required by Rev. Codes, § 6746, providing that no cause shall be reversed for error in instructions not specifically pointed out and excepted to, and the exceptions or statement of the case. error and exceptions incorporated in the bill of 6. APPEAL AND ERROR 706(4)

RECORD.

SCOPE

Assignment of error to refusal of new trial cannot be sustained, if no errors are apparent in the judgment roll, and the evidence is not in the transcript on appeal, as required by Laws 1915, c. 149.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

On Motion for Rehearing.

SCOPE

foreclose a mechanic's lien and to obtain judgment against defendant for an alleged balance claimed to be due upon certain con

7. APPEAL AND ERROR ~671(1) RECORD. Laws 1915, c. 149, stating the requisites of the record on appeal by judgment roll and tran-tracts for the construction by plaintiff, for script, does not alter the canons of judgment, but defendant, of a dwelling house. the court is still to determine whether reversible error occurred, whether the evidence supports the verdict, and whether the judgment is according to law.

[blocks in formation]

If appeal under such statute is from an order refusing a new trial, urging errors of law occurring at the trial, the appellant will propose for his transcript not only the judgment roll and his settled bill of exceptions, if there be one, but also any other proceedings, including such parts of the stenographic record as he thinks proper or necessary, and his adversary must propose, and have incorporated in the transcript, such additional matters as he thinks necessary to show that the supposed errors were cured, corrected, or inconsequential.

[ocr errors][merged small][merged small][merged small]

11. APPEAL AND ERROR 597(1) — ScoPE RECORD.

If on appeal under such statute a question arises, touching the accuracy of any paper or document set out in the transcript, the original, if not a part of the judgment roll, may be brought up by either party or, if a part of the judgment roll, by the Supreme Court; and when there is a doubt in the mind of the court as to whether the transcript is accurate or ample, or whether any error was substantial or has been compensated, the court may resort to the steno graphic record, if brought up, to set that doubt at rest.

12. APPEAL ANd Error ←➡699(1) — SCOPE – RECORD.

Laws 1915, c. 135, providing that every ruling or order is to be deemed excepted to, but that Rev. Codes, § 6746, shall not be affected thereby, does not render it unnecessary to follow procedure of Rev. Codes, § 6746, to secure review of order refusing instruction. Holloway, J., dissenting.

Jefferson

Appeal from District Court, County; J. B. McClernau, Judge. Action by Paul P. Roberts against Clarence C. Sinnott. Judgment for plaintiff and motion for new trial overruled, and defendant appeals. Affirmed. On motion for rehearing. Order for affirmance vacated on condition.

Day & Mapes, of Helena, for appellant. Kelly & Kelly, of Boulder, for respondent.

POORMAN, District Judge. This is an appeal from the judgment in favor of the plaintiff and from an order overruling defendant's motion for a new trial. The action is to

The case was tried to a jury and a verdict returned in favor of plaintiff.

The notice of intention to move for a new trial specifies as the grounds thereof: (a) Insufficiency of the evidence; (b) that the verdict is against law; (c) errors in law occurring at the trial, etc. The errors assigned on this appeal relate to (1) the admission of evidence over defendant's objection; (2) striking out of evidence, over objection of defendant; (3) refusal to give defendant's instruction No. 14; (4) error in overruling defendant's motion for a new trial.

It is maintained by appellant that the appeal is taken under the provisions of chapter 149 of the Laws of the Fourteenth Legislative Assembly. The respondent maintains that the judgment appealed from should be affirmed or the appeal dismissed, for the reason that the record presented is not suf ficient to enable the court to consider any of the errors assigned.

It is disclosed by the record that on the 10th day of July, 1915, appellant served notice on the respondent that he desired to incorporate in his transcript all of the stenographer's notes of the testimony taken on the trial, and that he would also require the clerk to certify to the Supreme Court the original exhibits on file in the case, "and that these documents and exhibits will be used on the appeal, instead of the bill of exceptions or statement pursuant to the provisions of chapter 149 of the Laws of the Fourteenth Legislative Assembly."

On the 10th day of September, 1915, the "transcript on appeal" was filed in the Supreme Court, and the same was within the time required served upon the attorneys for the respondent. This transcript on appeal contains the judgment roll and some other papers, but does not contain any of the testimony in the case. The transcript was printed. A transcript of the evidence was made by the stenographer, which was, on August 31, 1915, agreed to by the counsel for appellant and respondent as correct. This stenographer's transcript was not printed, and never was served upon the counsel for respondent, but was filed in this court on September 10, 1915. There is not any record of appellant's proposed instruction No. 14 except the fact that there appears in the transcript on appeal an instruction bearing that number, and there is not any record that the same ever was presented to the district court or was ever passed upon by that court. There is not any doubt of the insufficiency of this record, under the statute and the rules relating to appeals, unless the same is made sufficient by the provisions of the

« ΠροηγούμενηΣυνέχεια »