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(193 P.) [1] The authority of Tarada to speak , wise, agency would be impossible of proof for the defendant, and to fix liability upon it by anything less than a direct admission of for the goods sold and delivered to Goto, is the fact-something the adverse party may be the vital question upon which this appeal very reluctant to make. The case falls withmust be determined. There is no dispute con- in the well-settled principle that an agent cerning the sale an delivery of the goods. to whom is intrusted the management of its The president of the defendant company was local affairs may bind the company by a sworn as a witness on the plaintiff's case, contract necessary and proper to be made in and testified that he knew Tarada; that Ta- the prosecution of its business. Trent v. rada stayed at Livingston, and at times in- Sherlock, 24 Mont. 255, 61 Pac. 650; Spelman terpreted between the foreman of the gangs v. Gold Coin M. & M. Co., 26 Mont. 76, 66 and the men; that at the time in question de Pac. 597, 55 L. R. A. 640, 91 Am. St. Rep. fendant maintained a branch office in the 402; General Hospital Society v. New Haven, city of Livingston, in this state, but that the etc., Co., 79 Conn. 581, 65 Atl. 1065, 118 Am. main office of the company was at Seattle, St. Rep. 173, 9 Ann. Cas. 168. in the state of Washington; that defendant From a careful review of all the evidence, was under contract with the Northern Pacific we are convinced that the trial court corRailway Company to furnish to it gangs of rectly estimated the credibility of the witJapanese laborers to work upon its tracks nesses, the weight to be given to their testiand elsewhere, for which the railway com- mony, and the authority actually delegated pany paid it in one check; and that for sup- to Tarada. We have carefully considered all plies purchased upon the credit of his com- the other questions of law urged in the brief pany for the use of the gangs, deductions of counsel, and find no merit in any of were made and the balance paid to each of them. the Japanese laborers upon signing the pay Our conclusion is that the substantive evi. roll. This, coupled with the other testimony dence in the record is amply sufficient to in the record, justified the district court in uphold the judgment and the order denying assuming that the success of the enterprise defendant a new trial. They are therefore in which the defendant was engaged depend- affirmed. ed upon its ability to keep its gangs of workmen up to a given standard in numbers and HOLLOWAY, HURLY, and MATTHEWS, efficiency by insuring them an adequate sup- JJ., concur. ply of food and clothing; and that the authority exercised by Tarada in pledging the BRANTLY, C. J. I dissent for the reacredit of the defendant to that end was es son that I do not think there is sufficient sential and indispensable to the carrying out proof of agency. of its contract with the railway company. 21 Ruling Case Law, par. 33, p. 854. True, the witness did not specifically admit that

(58 Mont. 524) Tarada was clothed with authority to an- MONTANA MEAT CO. v. ORIENTAL TRAD. swer for the defendant; but in reaching its

ING CO. (No. 3862.) ultimate conclusion that Tarada actually had authority to bind the defendant to pay for (Supreme Court of Montana. Nov. 19, 1920.) the goods delivered to Goto, the trial court Principal and agent @mw 123(7)–Purchaser held had the right to assume that the statements sufficiently shown to be agent for defendant. of the witness that it was Tarada's duty “to In an action to recover for meat sold to a arrange for the needs of the gangs," and "to gang of workmen employed by defendant, eviget things in shape so that the men will be dence held to sustain a finding that the person taken care of and the Oriental Trading Com- ordering the goods had authority to do so from pany protected," taken with all the other

the defendant. evidence before it, fairly implied that fact.

Brantly, C. J., dissenting. [2, 3] In view of all the evidence in the rec ord, and the inferences properly to be drawn

Appeal from District Court, Lewis and from it, including the failure of the defend-Clark County; J. M. Clements, Judge. ant to disclaim the authority exercised by Action by the Montana Meat Company Tarada, the court had a right to determine against the Oriental Trading Company. that the defendant had authorized Tarada From a judgment for plaintiff and an order to make his assurance its own. The apparent denying a new trial, defendant appeals. Afauthority of an agent to act as the represent- firmed. ative of his principal is to be gathered from Wm. Wallace, Jr., John G. Brown, and all the facts and circumstances in evidence, T. B. Weir, all of Helena, for appellant. and, ordinarily, that is a question of fact for H. Sol. Hepner, of Helena, for respondent, the determination of the court, or the jury, as the case may be. 21 Ruling Case Law, COOPER, J. By stipulation of the parties par. 34, pp. 856, 857. Were the rule other it was agreed that all the evidence presented

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

in case No. 3861, Campbell v. Oriental Trad- order from which an appeal may be taken, and, ing Co., 193 Pac. 1112, should be admitted and if justice court is without jurisdiction, none is considered by the court in the present case, acquired by the appellate court on an attemptand, subject to the objections there made, ed appeal. the issues of both law and fact should be 3. Justices of the peace w54(4)-Jurisdiction determined thereon.

held lost by failure to comply with statute It appears in the testimony that Tarada, as to time of trial and postponements. the reputed agent of the defendant, accom- Where issue was joined in civil action in panied by N. Goto, foreman of extra gang justice court in March, 1918, and on April 1, No. 6, went into the place of business of the 1919, and the justice set the cause for April plaintiff and made representations similar 5, but on that day made an entry continuing to those made to P. H. Campbell, the plain- | fixed as the day of trial, on which day the jus

the case "for the present," June 2 being later tiff in the preceding case, viz, that he was

tice was absent from the city and the cause the agent of the Oriental Trading Company,

was then set for trial on June 16, when deand that he desired plaintiff to sell and de- fault judgment was entered for plaintiff, the liver to Goto supplies for the gang under his justice lost jurisdiction by failing to comply charge, to charge them to him (Goto), and with Rev. Code, 88 7033–7037, relating to time send the bill to "us" not later than the 25th of trial and postponements in justices' courts. of the month, and "we" would pay the bill ; that after some discussion, plaintiff delivered

Appeal from District Court, Custer County ; the goods required to Goto, and, apprehend- Daniel L. O'Hern, Judge. ing that difficulty might arise if the account Certiorari by the State, on relation of the were not presented before December 25, pay Chicago, Milwaukee & St. Paul Railway Comday, on December 15 plaintiff forwarded that pany, against John Gibb, Justice of the Peace account, addressed to "H. Tarada, agent of in and for Miles City Township, Custer Counthe Oriental Trading Company, at Livingston, ty. From a judgment setting aside a judgMont.” In addition to the evidence considered ment of the justice court, defendant appeals. in the preceding case, it appeared that after Affirmed. some conversation over long distance tele

P. F. Leonard, of Miles City, for appellant. phone with some person in the office of the defendant at Livingston a check was for

MATTHEWS, J. Certiorari. In March, warded from that place in payment for the 1918, issue was joined in a civil action in the goods sold to Goto. The account here involv- justice court at Miles City; nothing further ed covers merchandise sold and delivered by I was done in the case until April 1, 1919, when plaintiff to defendant between December 15, the justice of the peace set the cause for 1914, to February 3, 1915. For these reasons April 5, but on that date made an entry conand those given in the opinion in case No. tinuing the case “for the present." Later 3861, Campbell v. Oriental Trading Co., 193 June 2, 1919, was fixed as the day of trial, Pac, 1112, the judgment and order denying a but on that day the justice of the peace was new trial are affirmed.

absent from the city. The cause was then set Affirmed.

for trial on June 16, 1919, and counsel given HOLLOWAY, HURLY, and MATTHEWS,

written notice thereof. On June 16, the deJJ., concur.

fendant not appearing within one hour, judg

ment was entered for the plaintiff. ThereBRANTLY, C. J. I dissent for the reason upon a writ of certiorari was issued out of that I do not think there is sufficient proof of the district court of Custer county, return agency.

thereto made, and a hearing had, resulting in a judgment vacating and setting aside the

judgment of the justice court. This appeal (58 Mont. 518)

is from the judgment. STATE ex rel. CHICAGO, M. & ST. P. RY. [1, 2] 1. Appellant contends thatCO. V. GIBB, Justice of the Peace.

"The court erred in assuming jurisdiction (No. 4468.)

of this cause by certiorari proceedings, as the (Supreme Court of Montana. Nov. 19, 1920.) relator had adequate remedy by appeal.” 1. Justices of the peace Om 194(1)-Certiorari If an appeal lies, certiorari does not lie, and does not lie if appeal lies, though inadequate. it is immaterial, under our statute, whether

If an appeal lies from a justice of the appeal affords an “adequate remedy" or not. peace, certiorari does not lie, and it is imma- State ex rel. King v. District Court, 24 Mont. terial under the statute whether appeal af- 494, 62 Pac. 820, overruling former decisions fords an adequate remedy or not.

to the contrary. However, the right of ap2. Justices of the peace w 141(2)-Appellate peal presupposes jurisdiction in the lower court cannot acquire jurisdiction if lower court to enter a judgment or order from court did not have it.

which an appeal may be taken. If the lower The right of appeal presupposes jurisdic- court is without jurisdiction, none is acquired tlon in the lower court to enter a judgment or by the appellate court on an attempted ap

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


(193 P.) peal. Chadwick v. Chadwick, 6 Mont. 566, 6. Executors and administrators m523—Pro13 Pac. 385; In re Searles, 46 Mont. 322, 127 bate courts of limited jurisdiction cannot at. Pac. 902. All appeals from a justice court

tack decree of distribution made in foreign to the district court are tried anew (Rev.

state. Codes, $ 7122); the district court then “sits Where a decree of distribution was made in as a justice of the peace in that case, and a foreign state under a foreign statute, it canwith no greater jurisdiction" (State ex rel. not be attacked in the probate courts of MonGrissom v. Justice Court, 31 Mont. 258, 78 tana; they being courts of limited jurisdiction. Pac. 498).

7. Judgment Ca 818(4)-California decree con. [3] 2. The remaining assignments challenge clusive in that state also conclusive as to the correctness of the judgment. The district same matters in Montana. court found that the justice court lost juris- It will be assumed that a court in Calidiction by failing to comply with the provi- fornia acted within its jurisdiction, and that its sions of chapter 6, tit. 11, pt. 2, of the Revised decree was in accordance with the law of that Code, and in this was clearly correct. This state, so that such decree is conclusive in question was settled in State ex rel. Akin v. Montana in every matter in which it is conWilliams, 50 Mont. 584, 148 Pac. 333, and re- clusive in California, in view of the full faith

and credit clause of the federal Constitution. quires no further discussion. The judgment is affirmed.

8. Executors and administrators 523-De. Affirmed.

cree of distribution disregarding foreign de

cree held not erroneous. BRANTLY, C. J., and HOLLOWAY, HUR- Where one died in California leaving propLY, and COOPER, JJ., concur.

erty in such state and also in Montana, and the probate court of California distributed all of the property there situated to the widow, a

decree in Montana distributing the property in (58 Mont. 526)

accordance, with statutes of Montana, disre

garding the distribution of the California propIn re BRUHNS' ESTATE.

erty as conclusive on all the heirs, and giving BRUHNS V. BRUHNS et al.

the widow one-third of the property in Mon.

tana and two-thirds to the children, held not (No. 4231.) (Supreme Court of Montana. Dec. 6, 1920.)

Appeal from District Court, Custer Coun1. Courts fm 18Jurisdiction of probate courts ty; C. C. Hurley, Judge. confined solely to property within state.

Proceedings to administer the estate of Jurisdiction of the courts in Montana in Henry Bruhns, deceased, wherein Aline probate matters pertaining to real estate is Bruhns filed objections to the administrator's confined solely to property situated in that state, and any order or decree affecting realty Paul E. Bruhns and others appeal. Modi

report and from an order of distribution, in another state is a nullity.

fied and affirmed. 2. Courts Om 18-California probate courts can

make no binding order as to real estate in Nichols & Wilson, of Billings, for appelMontana.

lants. The California probate courts may make no George W. Farr, of Miles City, for rebinding orders pertaining to real property in spondent. Montana, in view of Rev. Codes, 8 7919. 3. Courts 18 — Probate courts of state

HURLY, J. Henry Bruhns, a resident of where decedent was resident authorized to California, died in that state intestate in make orders as to property there situated. the year 1914, leaving surviving a widow,

Where decedent was resident of California this respondent, a daughter, and four sons, at time of his death, the probate courts of that appellants herein. At the time of his death state had authority to make orders within their he owned property in California, probated jurisdictional powers relating to property there. in that state and of the net value for dis4. Evidence Ow43(4)–Courts will not judicial. tribution, in the sum of $1,280.82, which,

ly notice that foreign decree was made under by the probate court of the county of his certain foreign statute.

residence, was awarded to the widow. He The courts of Montana cannot take judicial also owned real property in this state, which notice that a decree of a probate court in Cali- was sold in the course of probate proceedings fornia was made under Code Civ. Proc. Cal. in Custer county, the net value of which is | 1469.

$1,929.84. The administrator appointed in 5. Statutes em 281-Foreign statutes must be Montana, in making his final report and peti

sufficiently pleaded and proved to sustain tion for distribution, alleged that under the rights based thereon.

laws of California and of the state of MontaWhere rights are based upon the statutes na one-third of all the property of the deof a sister state, there must be a sufficient ceased, after the payment of the indebtedpleading and proof thereof.

ness of the deceased and the expenses of

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

administration, is required to be distributed in the proceedings here appellants should to the widow, and the remaining two-thirds be allowed to have deducted from the widow's to the five children of the deceased in equal distributive share of the Montana property shares, but that the said widow had received, a sum sufficient to enable the sons and daughand has the exclusive benefit of, all the prop- ter of the deceased to obtain, so far as the erty of the deceased within said state of proceeds of the estate will permit, their twoCalifornia to the exclusion of said children, thirds interest in the value of the properties and that the property so received by said in the two states. widow greatly exceeds in value the one- [1-3] We do not deem it necessary to cite third interest in all the property of the de- authorities to the effect that jurisdiction ceased to which, under the law, she was of the courts in Montana in probate matters entitled, and that therefore she should not pertaining to real estate is confined solely have distributed to, her any part of the to property situated in this state, and that money in the hands of the Montana admin- any order or decree affecting realty in anistrator.

other state would be a nullity. Likewise Respondent filed her objections to such the California probate courts may make no report on the ground that the order of the binding orders pertaining to real property in California court in setting aside all of the this state. See section 7919, Revised Codes. property in that 'state to her was made in The deceased having been a resident of Caliaccordance with the laws of that state and fornia at the time of his death, the probate is conclusive on all the heirs of the deceased, courts of that state were, of course, authorizand she asserts her right to receive one- ed to make any orders within their juristhird of the residue of the Montana property, dictional powers relating to decedent's propregardless of the fact that all of the Call. erty there, subject to attack only upon fornia property was awarded to her,

grounds not. pertinent to a decision of this After hearing, the court sustained the ob- case. jections of the respondent and distributed the So far as appears from the record, we do estate, awarding her one-third and the re- not learn that the children of deceased parmaining two-thirds to the children. By anticipated in the California proceedings, nor oversight, however, the name of Paul E. that any reference was made to the Montana Bruhns was omitted from said award, and lands, nor that any appeal has been taken it is conceded by appellants and respondent from any of the orders of that court, and that his name should be included as one of we assume that the same are in full force the distributees.

and effect. Copies of the inventory of the property, [4, 5] While it may be that the decree in decree of distribution, and final discharge California was made under the provisions of the administrator in California are an- of the statute above referred to (though the nexed to the final report. In the inventory statement is made in the inventory that the are included sundry items of real and per- property was community property, an ownsonal property, of the appraised value of ership not recognized in this state), we are $1,468.82. The inventory contains the recit- not permitted to take judicial notice that al: “The estate mentioned in the foregoing it was so made. We conld as well assume inventory is community property." The de that the property was exempt from execution, cree of distribution recites that the net value and that, in accordance with the provisions of the estate is less than $1,500, “that the said of sections 1465 and 1468 of the California surviving widow does not have a maintenance Code of Civil Procedure (our sections 7509 derived from her own property equal to the and 7512), the court awarded the same to said estate of said deceased,” and then the surviving widow. However, we may awards to her the entire estate in California. not indulge in either of such assumptions.

We are in effect asked to hold that the Where rights are based upon the statutes proceedings in California in awarding the of sister states, there must be a sufficient property to the widow were under statutory pleading and proof thereof. Bank of Comprovisions similar to those found in our sec- merce v. Fuqua, 11 Mont. 285, 28 Pac, 291, tion 7513, Revised Codes; the California sec- 14 L. R. A. 588, 28 Am. St. Rep. 461; Me. tion being section 1469 of the Code of Civil Knight v. Oregon, etc., R. R. Co., 33 Mont. Procedure.

40, 82 Pac. 661. The position of appellant is that the pro- [6, 7] But, conceding that the decree was vision found in each of the above statutes made under the statute referred to by apfor summary disposition of estates of in- pellants, we know of no method of attacking testates when “it appears that the value of in our probate courts—they being courts of the whole estate does not exceed fifteen limited jurisdiction—the judgment or decree hundred dollars," means the whole estate so made. What remedy, if any, the appelwherever situated, and therefore that the lants may have, if the California decree is value of the "whole estate" exceeds $1,500, erroneous, we are not called upon to decide. in consequence of which it follows that the To grant appellants the relief they ask in California decree was erroneous, and that this court would be the equivalent of setting

(193 P.) aside or modifying the California decree. 3. Vendor and purchaser Om 232(1)-PossesWe must assume that the court in that state sion to claimed boundary charged purchaser was acting within its jurisdiction, and that

of adjoining land with notice. its decree was in accordance with the laws Owner's occupancy of land to claimed of that state; therefore such decree is con- boundary line was notice to purchaser of adclusive upon our courts in every matter in joining land of owner's claim to all land es. which it is conclusive in California. State tending to such line. ex rel. Ruef v. District Court, 34 Mont. 96, 83 Pac. 866, 6 L. R. A. (N. S.) 617, 115 Am. Appeal from District Court, Cascade St. Rep. 510, 9 Ann. Cas. 418. Any other County; H. H. Ewing, Judge. result, upon the record presented, would do

Action by the Box Elder Live Stock Comviolence to the full faith and credit clause of our federal Constitution (section 1, art. 4). pany against Thomas F. Glynn and another.

Judgment for plaintiff, and defendants apWe are not unmindful of the rules relating

peal. Reversed. to ancillary administration in cases where property of a decedent exists in two or more John W. Stanton, of Great Falls, for apstates. But appellants assert, and respondent pellants. concedes, that the Montana proceedings are Cooper, Stephenson & Hoover, of Great not intended as ancillary to those in Call- Falls, for respondent. fornia, and no attempt is made to bring the case within the rules governing such pro

HURLY, J. Action in ejectment to recover ceedings, and we therefore decide the appeal possession of two tracts of land, one conupon the contentions urged by the parties. [8] The decree was made in accordance in section 20, township 19 north, range 6 east,

taining 11.3 acres, and one 46.4 acres, both with the provisions of our statute, no error appearing except as to the omission, in the M. M., for which land plaintiff has record

title. decree of the name of Paul E. Bruhns as one of the sons and heirs of deceased. The curacies in the government survey, contains

The section referred to, by reason of inaccause is therefore remanded to the district between 800 and 900 acres of land, instead court, with direction to modify the decree of of the usual 640. Upon the trial plaintiff indistribution by making proper distribution to troduced in evidence conveyances of the south said Paul E. Bruhns, and, when so modified, half of the southwest quarter, section 20, It will stand affirmed.

above, as follows: A quitclaim deed dated Modified and affirmed.

May 25, 1900, from one Van Bergen to

Jennie Reese, reciting it to be the intention to BRANTLY, O. J., and HOLLOWAY, MAT- transfer all of grantor's interest in the land THEWS, and COOPER, JJ., concur.

embraced in his desert entry therefor, of date
November 1, 1898; a similar deed, dated
November 5, 1902, from Reese to one Susan
Hanley; patent from the United States to

Hanley, dated June 9, 1910; warranty deed (58 Mont. 561)

from Hanley to Reese, dated January 21, BOX ELDER LIVE STOCK CO. V. 1903; warranty deed from Reese to A. GLYNN et al. (No. 4222.)

Nathan, dated January 10, 1903; and war

ranty deed from Nathan to plaintiff, dated (Supreme Court of Montana. Nov. 1, 1920.) June 30, 1914. Defendants thereupon stip

ulated that the 11.3 acres above described are 1. Frauds, statute of Om70—Parol boundary within the boundaries of the south half of agreement held not within statute; “sale or the southwest quarter, and that the 46.4conveyance of land."

acre tract is within the boundaries of the Where there was a disagreement as to the west half of the southeast quarter of said location of the boundary line which could not sec'ion. The plaintiff then offered in evibe determined in the ordinary manner, a parol dence a plat of the section, made from a agreement between the adjoining owners as to survey showing the lands in dispute and the location thereof was valid, since such agree their location with reference to the legal ment did not constitute a contract for the sale or conveyance of land, and therefore was not description, and rested its case. Defendants within the statute.

thereupon called one Sinclair, the surveyor

who made the plat above, who explained 2 Public lands en 139–Entryman's boundary the survey so made. agreement with adjoining owner held valid.

Mrs. Bert Colvin was then called by deEntryman's agreement with adjoining owner fendant, and testified that her name was as to location of boundary line was binding on formerly Jennie Reese. Defendants' counsel the entryman and those claiming under him, sought to show by her that during the time notwithstanding that agreement was made be- she had possession of the land under said fore issuance of patent.

desert entry there was a disagreement be

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