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and with what it shall be charged, it only re- confusion has arisen from using the word mains for the courts to give effect to its in a loose manner, at one time in its techprovisions. Admittedly, the language of the nical sense, and at another in its popular section of the Code specifying in what in

It is often convenient and proper stances the homestead shall be subject to to speak of the lien of a mortgage or of execution and forced sale does not include the lien of a pledge. Of course, it will often the liens of material men. The language is happen, when the word is useu in this sense, in satisfaction of judgments 'on debts se- that the description of the lien shows that cured by mechanics', laborers', or vendors' the word is used merely to denote the charge llens upon the premises.' The chapter of the or incumbrance of a mortgage, pledge, atCode of Civil Procedure which provides for tachment, or judgment." Section 2. "A liens of the nature claimed by the plaintiffs mortgage is sometimes inaccurately called a is headed 'Liens of Mechanics and Others lien. 'And so it is,' says Mr. Justice Story, upon Real Property,' and gives to 'mechanics, 'and something more; it is a transfer of the material men, contractors, subcontractors, property itself as security for the debt. artisans, architects, machinists, builders, This must be admitted to be true at law; miners, and all persons and laborers, of ev- and it is equally true in equity, for in this ery class, performing labor upon or furnish- respect equity follows the law. It does not ing materials to be used in the construction, consider the estate of the mortgagee as de

• a lien,' etc. Code Civil Proc. $ feated and reduced to a mere lien, but it 1183." I do not observe any marked distinc- treats it as a trust estate, and, according tion between the California statute and our to the intention of the parties, as a qualified own, nor can I agree that section 328 of our estate and security. When the debt is disCode of Civil Procedure helps the contention charged, there is a resulting trust for the that a pure material man may enforce a lien mortgagor. It is therefore only in a loose against a homestead. Section 323, Code Civil and general sense that it is sometimes called Proc., provides that this homestead exemp- & lien, and then only by way of contrast tion shall not affect a laborer's or mechanic's to an estate absolute and indefeasible.' lien. I think we all concede that the en- Conard v. Insurance Co., 1 Pet. 386, 441." forceability of the laborer's and mechanic's Section 11. I think that the intent of the lien is intended to be saved by this section, proviso of section 328 was to treat of morteven granting that my construction of the gages, as the language says, and not of the words "laborer” and “mechanic" is correct, material men's liens, which are not menand that those terms are not generic, so as tioned in terms, and which it is not necesto include all material men.

sary to include in the word “mortgage." In Now, it is further suggested that the en- this view, the proviso of section 328 looks to forceability of liens, including material the saving of a security created by the act men's, (such as plaintiff herein,) is saved of the party, namely, & mortgage. This by the proviso of section 328, which is as seems wholly just. It is right that the follows: "Provided, that this act shall not debtor should not be relieved from a securibe construed as to in any manner relate ty which he had voluntarily created. But to judgments or decrees rendered on the when the statute makes this sort of a dec foreclosure of mortgages, either equitable or laration, I do not understand that we must legal.” The construction of this proviso, as also hold that, by the same language by held by part of this court, makes the words which it retains the security of the volun"mortgage, either equitable or legal," in sec- tary mortgage, it also intended to re tion 328, to include material men's liens. I tain the security of the involuntary me cannot satisfy myself that such inclusion chanic's lien, which operates against was intended. A mortgage is an incum- the debtor in invitum, which was the brance placed upon property by the acts of creature of the statute, and not of the debtthe parties, either expressly so intended by The appellant cites us to Windmill Co. the parties or so construed by a court of V. Shay, 32 Neb. 19, 48 N. W. Rep. 896, as equity. On the other hand, the mechanic's holding a view contrary to that which I or laborer's or material man's lien is given entertain. All that is said in that case is by virtue of an express statute. A mort- as follows: "Section 3, c. 36, Comp. St., gage is given by the debtor, voluntarily, provides that the homestead is subject to either expressly or by construction of equi- execution of forced sale in satisfaction of ty. A mechanic's or laborer's or material judgments obtained-First, on debts secured man's lien is secured against the debtor by mechanics', laborers', or vendors' liens without his consent. A mortgage has the upon the premises; second, on debts secured characteristic of a lien, in that it is a se- by mortgages upon the premises, executed curity upon property. A mechanic's lien is and acknowledged by both husband and also a security on property, but it is not wife or an unmarried claimant.' This sec. obtained by the voluntary act of the debtor. tion makes the homestead liable for a me A mortgage is a lien, and something more. chanic's lien.” The matter is thus disposed 1 Jones, Liens, $82, 11. I quote from those of by the Nebraska court in one line of the sections as follows: "The word 'lien' is here opinion. Whatever good reasons that court used in its legal and technical sense. Much had for its view are not disclosed by the



opinion, which, therefore, does not give me 11 Mont. 263, 28 Fac. Rep. 301. The former any light. The cause of action in the Ne appeal was taken from the entire judgment, braska case was for supplying a windmill. as well as the order denying a new trial. The counsel in the case for the lienor put This court reversed the judgment, set aside their claim upon the ground that it was for the order appealed from, and remanded the both labor and inaterial, and that only pure cause for new trial. At the second trial of material men were excluded by the home- the case in the court below the appellant stead exemption. That the claim was for sought, and requested the court, to confine both labor and material does not, however, the issues to be tried to the first count in the appear in the statement of facts made by complaint; claiming that the judgment of the court, nor in the meager expression of this court on the former appeal was limited opinion as to the law. But if the Nebraska to the insufficiency of the evidence to sustain case was, as counsel therein argued, one the verdict of the jury on said first count for material and labor both, then the case and consequently left nothing to be tried but is not in conflict with the views which I

the issues under this count. The appellant, suggest; and, if the case was one for ma- at the close of the testimony, requested the terial only, all that I can say is that the

court to instruct the jury in this respect as was not sufficiently reasoned out to

follows: "You are instructed that the only give me any satisfaction. This matter was issue in controversy in this action is as to suggested in Merrigan v. English, supra, and

the employment of the plaintiff by the de the 70 and 74 Cal. (11 and 16 Pac. Rep.) ferdant subsequent to the 25th day of Occases were called to the attention of the

tober, 1888, and you will exclude from your court. But the court held that those cases

consideration all evidence of the execution of were not in point in Merrigan v. English,

the duebill, and the payment made thereon." and said: "In each of the cases cited, the

The court refused the request of the appelcourt treated the lien as a lien for material

lant, and this action is assigned as error on alone. In the first case cited, the lien, as

this appeal. a matter of fact, was for material only. We

The former appeal of this cause was from do not hold that a material man has such a

the entire judgment, and order of the trial lien as will be valid against a homestead.

court refusing a new trial. This court reThat is not the question before us." I am

versed the entire judgment, and set aside the therefore of opinion that the district court

order denying a new trial, and remanded should be sustained in its finding that the

the cause for new trial. This placed the case premises were a homestead, and also in its

in the court below, at the time of the second conclusion that a pure material man

trial, in the same condition as if it had never or

been tried at all. The former appeal was not lumberman cannot enforce a lien against a

taken from a part of the judgment rendered homestead.

at the first trial, au might have been done. Code Civil Proc. $ 444, p. 180; Bank v.

Fuqua, 11 Mont. 285, 28 Pac. Rep. 291. MATTOCK v. GOUGHNER.

Everything done in the first trial by the (Supreme Court of Montana. Sept. 5, 1893.) court below was reversed, set aside, and the APPEAL EFFECT OF REVERSAL-CONFLICTING Ev

whole case remanded for a new trial by this

court on the former appeal. We think the 1. Where appeal is taken from the entire court committed no error in refusing the rejudgment, a general reversal and remand re

quest of appellant, complained of here. We quire a new trial of all the issues, as if the

cannot see how the trial court could have case had never been tried. 2. Where the record on appeal from A

done otherwise than try the whole case anew. judgment based on conflicting evidence does The appellant insists that the evidence is not disclose any abuse of judicial discretion insufficient to sustain the verdict, and claims in overruling, the motion for a new trial, the judgment will not be disturbed.

the evidence is substantially the same as on

the former trial, and claims that, as this Appeal from district court, Park county: court held the evidence insufficient to support Frauk Henry, Judge.

the verdict in the former trial, it must do so Action by Getchell L. Mattock against

in this appeal. The respondent claims that Emanuel Goughner. Plaintiff had judgment,

the evidence is not the same in this as in the from which, and an order denying a new tri

former trial; that other evidence and circumal, defendant appeals. Affirmed.

stances are disclosed in this record, not in For former report, see 28 Pac. Rep. 301.

the former, sufficient to authorize and supSavage & Day, for appellant. Allen R. port the verdict; and the record sustains this Joy, for respondent.

position. There is, it must be confessed, &

palpable conflict in the evidence in this case, PEMBERTON, C. J. This is a suit for The jury, we think, would have been justidebt. There are two counts in the com- fied in finding for either party. We cannot plaint, the first alleging an indebtedness for say that the evidence is so satisfactory as to labor done and performed. The second is make it clear to our minds that the verdict based on a duebill. This is the second ap- should not have been the other way. But it poal of this case. See Mattock v. Goughnour, is the province of the jury, under the law.


to pass upon the credibility of the witnesses, F. C. Park, for appellant. Arthur J. and the weight to be given to their testi- Shores, for respondent mony, and to determine conflicts therein. The court below heard the witnesses testify PEMBERTON, C. J. This is a suit for on the stand, observed their manner, consid- damages for personal injuries. The appelered whatever interest they may have had lant, who was plaintiff below, alleges in in the result of the suit, and doubtless duly his complaint that he is a skilled carpenconsidered these matters in passing upon the ter; that on March 5, 1891, he was employed motion for a new trial. In such matters a by respondent to work on its mill at Great very large discretionary power is given to the Falls; that on the 20th day of March, 1891, trial court, and rightly so. We cannot inter- while engaged at work handling heavy plank fere with the exercise of this power, unless on the third story of respondent's said mill, convinced, from a consideration of the whole he fell to the floor below, breaking his leg; record, that there has been shown abuse of that his fall, by which he was so injured, such discretionary power. From such con- was caused by the incompetency, lack of sideration of the record, we are not satisfied skill and knowledge, of one Harlander, a that there has been such an abuse of dis- colaborer who was engaged in assisting him cretion as to make it incumbent upon us to in his work; that defendant knew of the ininterrupt the judgment and rulings of the competency of the said Harlander, and apcourt below, especially as this is the second pellant did not. The complaint further altrial of this cause. The judgment of the leges that defendant employed, as it was court below is afirmed.

bound to do under its contract with appel.

lant, surgeons to treat his broken limb; HARWOOD, J., concurs.

that these surgeons so carelessly and un

skillfully treated his leg, and were so negDE WITT, J. I concur in the affirmance.ligent in nursing and caring for appellant My views were fully expressed on the former during his sickness, that it became and was appeal. 11 Mont. 265, 28 Pac. Rep. 301. necessary to amputate the leg of appellant

in order to save his life; that the want of

skill and ability of said surgeons was known JORGENSON v. BUTTE & MONTANA

to the respondent at the time, and unknown COMMERCIAL CO.

to appellant; that defendant was guilty of

negligence in the employment of said un(Supreme Court of Montana. Sept. 5, 1893.)

skillful laborer to assist appellant in his PRACTICE-Noxsuit-Cross-EXAMINATION.

work on said building, and in the employ1. Plaintiff was injured by a fall while

ment of unskillful and negligent surgeons to employed as a carpenter by defendant, and in an action therefor he alleged that the fall re

treat and nurse him. The appellant testisulted from the incompetency of H., a coserv- fied to the fact of his falling, how it ocant, and that because of the careless and nn

curred, and the result. He attributes his skillful treatment of the wound by a surgeon employed by defendant it was necessary to

fall to the incompetency of Harlander. As amputate plaintiff's leg. The evidence failed to the manner of his treatment by the surto show any lack of skill by H., or the neces- geons and nurses, his evidence is unreliable, sity for his exercise of any particular skill, or that defendant had knowledge of any in

as he admits that a great part of the time competency of H. of which plaintiff was igno

he was unconscious. Besides, his testimony rant. Plaintiff's evidence tended to show that

does not show any knowledge of these matH. was not working with plaintiff at the time ters. He was manifestly not supported by of his injury, and that plaintiff had stated that he alone was to blame; that the surgeon

the testimony of his other witnesses as to employed was duly qualitied, under the laws

the material facts in his evidence. Harof the state, to practice his profession; and it lander, the man appellant says was assistfailed to show any injury to the leg, as a re- ing him at the time he fell, and to whose sult of a lack of skill. Held, that a nonsuit

incompetency appellant attributes his fall was properly directed. 2. In an action by a servant for personal

and injury, swears he was not helping apinjuries resulting from the incompetency of H., | pellant at the time he fell and was injured; a coservant, plaintiff called H. as a witness,

that the appellant was working alone at that stating that "the witness would refer to the time and place plaintiff fell, for the purpose of

time. H. L. Smith, another witness for ap fixing the time and place of other events in pellant, testified as follows: "I talked with connection with the case, and does not wish to him (appellant] about this fall. He said he make the witness his witness as to the acts

slipped and fell, and said nobody was to he was doing at the immediate time of the fall." H. then testified to facts connected

blame for it but himself." The appellant with plaintiff's fall. Held proper to allow to testified that at the time he fell he was be cross-examined as to the entire case.

using a pevee in handling and moving the Appeal from district court, Cascade coun- planks. Beecher, a witness for appellant, ty: Charles H. Benton, Judge.

testified that he was a carpenter, at work Action for personal injuries by H. C. Jor- on the same building with appellant at the genson against the Butte & Montana Com- time he fell; that appellant was using a mercial Company. From a judgment of non- pevee; that he considered it safer worksuit directed by the court, plaintiff appeals. ing where appellant was without a pevee; Affirmed.

and that the superintendent had given all


the men instructions not to use a pevee , appellant were duly licensed, qualified, and in work like that in which appellant was authorized, under the laws of this state, to engaged. The evidence offered by the appel- practice their profession, and fails to show lant as to the negligence and want of skill that appellant hurt his leg or sustained damof the surgeons who treated him is vague, age as a result of a want of skill or care on and far from being satisfactory. It is true their part in the treatment of his wound. the appellant testified to some apparent neg- From this review of the evidence, we are lect and want of care during his sickness. unable to see how the court below could Smith, a witness for appellant, testified that have done otherwise than to instruct the jury he assisted in taking care of the appellant to find for the defendant, or direct a nonsuit part of the time; talked to him about his on the close of the appellant's testimony. condition; that he did not complain at any On the evidence, we are of opinion that aptime of how he was treated; that there was pellant had shown no right to recover, or no lack of attendance at any time. The that there was any substantial merit in his surgeon who treated him testified to proper treatment and care of appellant. Although Appellant also complains of the action of there is some evidence of unprofessional the court in permitting the cross-examinawitnesses which might be construed into tion of the witness Harlander. Appellant meaning that there was some want of care, placed the witness on the stand, and stated yet on the whole the evidence seems to that “the witness would refer to the time and show that as good care as the circumstances place Mr. Jorgenson fell for the purpose of would admit of was bestowed upon appel- fixing the time and place of other events lant. There is no evidence showing that the in connection with the case, and does not surgeons employed to treat appellant were wish to make the witness his witness as to not skilled and learned in their profession. | the acts he was doing at the immediate time All these witnesses were the appellant's wit of the fall." The witness swore to facts nesses. The defendant offered no evidence, contemporaneous with the fall of the appelbut on the conclusion of the testimony of- lant, so closely connected with the main fact fered by appellant moved the trial court that we think there was no error in permitfor an instruction to the jury to render a ting his being cross-examined as to the entire verdict for the defendant. The court gave case, especially as he was the person to whose this instruction, and upon the verdict so want of skill and care the appellant attributes rendered a judgment was entered for the his fall and injury. defendant for costs. From this judgment The appellant also claims that the trial this appeal is brought.

court erred in permitting defendant to amend The principal error complained of is the its answer while the jury was being impanaction of the trial court in directing the jury eled. It does not appear that appellant was to render a verdict for the respondent. This surprised, or in any way injured or inconaction of the court was tantamount to di- venienced, by the amendment. No postpone recting a nonsuit against the appellant for ment or continuance of the cause was renfailure of the proof to sustain the allegations dered necessary thereby, or demanded on of the complaint. McKay v. Railway Co., account thereof, by appellant. We are una(Mont.) 31 Pac. Rep. 999; Creek v. Mc- ble to see how appellant was aggrieved by Manus, (Mont.) 32 Pac. Rep. 675. If there this action of the trial court. was such failure of proof the action of the The appellant's deposition was read by his court was not error. The evidence does not counsel in evidence at the trial, he not being disclose wherein any particular skill was re- present Counsel for appellant did not, for quired on the part of appellant's colaborer some reason, desire to read the whole thereto do the work he was employed in doing, of to the jury. At the request of the deor, if skill was necessary, wherein it was fendant the court required the appellant's not exercised, or, if there was a lack of counsel to read the whole thereof. This is necessary skill, that the defendant had knowl. | urged as error. Without inquiring whether edge thereof, and that appellant was ignorant this was error or not, it is apparent the appelthereof. The evidence offered by plaintiff lant was not injured, as the part of the depotends to show that he contributed to his sition the appellant sought to omit referred to own injury, by disobeying orders not to use the contract for nursing and medical treatthe pevee in the work he was doing. The evi- ment set up in the complaint, and the readdence also tends to show that Harlander, ing thereof to the jury could not possibly on account of whose incompetency and want damage the appellant. We have been una. of skill appellant claims he was injured, ble to discover any substantial errors in the was not working with appellant at the time rulings and action of the trial court in the he fell. Harlander

swears. Witness trial of this cause. The case seems to us to Smith also testified that after appellant was be void of merit, on the appellant's own hurt he stated that he alone was to be blamed; showing. The judgment of the court below that he slipped and fell from the building. is affirmed. The evidence shows that the surgeons and physicians employed by respondent to treat HARWOOD and DE WITT, JJ., concur.



and cut the hay. Other than these acts, he STATE ex rel. SIMARD v. FOURTH JUDI

made no claim of any rights to the hay or CIAL DISTRICT COURT.

the land. In June Simard made a contract

with Hanratty and Tillman that he would (Supreme Court of Montana. Sept. 6, 1893.)

cut the grass for them for five dollars a ton CERTIORARI-CONTEMPT-VIOLATION OF INJUNO

Afterwards, and on July 10, 1893, he sold

the grass as his own, as he says, to Asselin 1. The supreme court of Montana can re

and La Casse. After that, on July 24th, view contempt proceedings on certiorari. 2. Defendant, recognizing the owner's ti

he told Hanratty that he had concluded to tle to certain land, agreed to cut the hay for cut the grass for himself. Asselin and La him, but soon thereafter purported to sell the Casse employed Simard to cut the grass, grass to L., and agreed to cut it for him. Aft

which he was doing on July 28, 1893, at erwards, when an injunction against interfering with the grass was served on him, defend

which time the injunction was served upon ant said the grass was his own, and he was him. Asselin was never on the land but going to have it. He accompanied L. to con- once since the 10th of July, until he began to sult "their lawyer," and on their return he advised the latter to cut the grass. Held, that

cut the hay, as hereinafter described. A few defendant was guilty of contempt in procuring moments after the injunction order was the violation of the injunction.

served upon Simard, he told Hanratty that Application by Eugene Simard for a writ the grass belonged to him, Simard, and of certiorari to the fourth judicial district

that he was going to have it, and that he, court to review the action of the court in Hanratty, could not hurt him for taking it fining relator for contempt of court Writ

He then went at once to Frenchtown, and denied.

told Asselin of the service of the injuncStatement of the case by the justice de

tion, and he and Asselin went to Missoula livering the opinion:

to consult lawyers regarding the moving of This is an application for a writ of certio the hay. On their way to Missoula nothing rari to review the action of the fourth was said by either of them regarding the hay judicial district court in tining relator for or the moving of it. Returning from Mis an alleged contempt of court. Relator was

soula, Simard told Asselin that he thought, attached for contempt, and a hearing was

from what their lawyers said, he, Asselin, had, at which evidence was introduced. In had better go ahead and cut said hay. the return to the writ of certiorari from this Simard himself took no part in the moving court, the papers, proceedings, and evidence of the hay, but the same was all taken which were before the district court, and from the ground by Asselin on the 30th of upon which relator was adjudged to be July. Hanratty had a talk with Simard reguilty of contempt, are certified to this garding his purchase of the land from the court, and from them the following state railroad company, and Simard never in any ment of facts may be made: J. 0. Hanratty way made any objection to Hanratty's own. and A. R. Tillman commenced an action in ership of the land prior to about the 24th of the fourth judicial district court against July, when he claimed the grass growing Eugene Simard, to obtain a judgment against thereon as his own. Upon the facts aphim, restraining him from cutting hay on pearing as above recited, the district court certain land, alleged in the complaint to be- discharged Asselin from the charge of conlong to Hanratty and Tillman. A writ of tempt, and held Simard guilty, and fined him injunction was issued July 28, 1893, from $100 and costs. Simard contends that this the district court, and served on Simard, the action of the district court was without same day. On July 31st Hanratty made jurisdiction, and should be annulled by this atfidavit before the court that the injunc- court upon certiorari. tion had been violated by the aid of the servants and employes of Simard, in that

Bickford, Stiff & Hershey, for relator. they had gone upon the land, and removed

Marshall, Francis & Corbett, for respondent all the hay. An attachment for contempt was issued against said Simard and Asselin. DE WITT, J., (after stating the facts.) The hearing was set for August 3, 1893. On The respondent contends that this contempt the hearing the pleadings in the case of Han- proceeding is not reviewable in this court ratty et al. v. Simard were before the court, on certiorari, but that contention seems to be and also testimony was taken of witnesses. disposed of by the following cases: In re The testimony of Simard, Asselin, La Casse, McCutcheon, 10 Mont. 115, 25 Pac. Rep. 97; and Hanratty, which the court below had In re Shannon, 11 Mont. 67, 27 Pac. Rep. before it on the hearing, being reduced to a 352; In re MacKnight, 11 Mont. 126, 27 Pac. short narrative, is as follows: The land was Rep. 336. We proceed to the merits of the claimed by Hanratty and Tillman through application. purchase from the Northern Pacific Railroad The statement of case above recites what Company, made May 31, 1893. This was the testimony before the court tended to known to Simard and to Asselin and La prove, and, indeed, is conceded by the re Casse. Six years previous Simard had sown iator to be correct, except in one particular, grass seed upon the land, and bad fenced it | which is not of great importance. We there

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