and with what it shall be charged, it only remains for the courts to give effect to its provisions. Admittedly, the language of the section of the Code specifying in what instances the homestead shall be subject to execution and forced sale does not include the liens of material men. The language is in satisfaction of judgments 'on debts secured by mechanics', laborers', or vendors' liens upon the premises.' The chapter of the Code of Civil Procedure which provides for liens of the nature claimed by the plaintiffs is headed 'Liens of Mechanics and Others upon Real Property,' and gives to ‘mechanics, material men, contractors, subcontractors, artisans, architects, machinists, builders, miners, and all persons and laborers, of every class, performing labor upon or furnishing materials to be used in the construction, a lien,' etc. Code Civil Proc. § 1183." I do not observe any marked distinction between the California statute and our own, nor can I agree that section 328 of our Code of Civil Procedure helps the contention that a pure material man may enforce a lien against a homestead. Section 323, Code Civil Proc., provides that this homestead exemption shall not affect a laborer's or mechanic's lien. I think we all concede that the enforceability of the laborer's and mechanic's lien is intended to be saved by this section, even granting that my construction of the words "laborer" and "mechanic" is correct, and that those terms are not generic, so as to include all material men.

Now, it is further suggested that the enforceability of liens, including material men's, (such as plaintiff herein,) is saved by the proviso of section 328, which is as follows: "Provided, that this act shall not be construed as to in any manner relate to judgments or decrees rendered on the foreclosure of mortgages, either equitable or legal." The construction of this proviso, as held by part of this court, makes the words "mortgage, either equitable or legal," in section 328, to include material men's liens. I cannot satisfy myself that such inclusion was intended. A mortgage is an incumbrance placed upon property by the acts of the parties, either expressly so intended by the parties or so construed by a court of equity. On the other hand, the mechanic's or laborer's or material man's lien is given by virtue of an express statute. A mortgage is given by the debtor, voluntarily, either expressly or by construction of equity. A mechanic's or laborer's or material man's lien is secured against the debtor without his consent. A mortgage has the characteristic of a lien, in that it is a security upon property. A mechanic's lien is also a security on property, but it is not obtained by the voluntary act of the debtor. A mortgage is a lien, and something more. 1 Jones, Liens, §§ 2, 11. I quote from those sections as follows: "The word 'lien' is here used in its legal and technical sense. Much

confusion has arisen from using the word in a loose manner, at one time in its technical sense, and at another in its popular sense. It is often convenient and proper to speak of the lien of a mortgage or of the lien of a pledge. Of course, it will often happen, when the word is used in this sense, that the description of the lien shows that the word is used merely to denote the charge or incumbrance of a mortgage, pledge, attachment, or judgment." Section 2. "A mortgage is sometimes inaccurately called a lien. 'And so it is,' says Mr. Justice Story, 'and something more; it is a transfer of the property itself as security for the debt. This must be admitted to be true at law; and it is equally true in equity, for in this respect equity follows the law. It does not consider the estate of the mortgagee as defeated and reduced to a mere lien, but it treats it as a trust estate, and, according to the intention of the parties, as a qualified estate and security. When the debt is discharged, there is a resulting trust for the mortgagor. It is therefore only in a loose and general sense that it is sometimes called a lien, and then only by way of contrast to an estate absolute and indefeasible.' Conard v. Insurance Co., 1 Pet. 386, 441." Section 11. I think that the intent of the proviso of section 328 was to treat of mortgages, as the language says, and not of the material men's liens, which are not mentioned in terms, and which it is not necessary to include in the word "mortgage." In this view, the proviso of section 328 looks to the saving of a security created by the act of the party, namely, a mortgage. This seems wholly just. It is right that the debtor should not be relieved from a security which he had voluntarily created. But when the statute makes this sort of a declaration, I do not understand that we must also hold that, by the same language by which it retains the security of the voluntary mortgage, it also intended to retain the security of the involuntary mechanic's lien, which operates against the debtor in invitum, which was the creature of the statute, and not of the debtThe appellant cites us to Windmill Co. v. Shay, 32 Neb. 19, 48 N. W. Rep. 896, as holding a view contrary to that which I entertain. All that is said in that case is as follows: "Section 3, c. 36, Comp. St., provides that the homestead is subject to execution of forced sale in satisfaction of judgments obtained-First, on debts secured by mechanics', laborers', or vendors' liens upon the premises; second, on debts secured by mortgages upon the premises, executed and acknowledged by both husband and wife or an unmarried claimant.' This sec tion makes the homestead liable for a mechanic's lien." The matter is thus disposed of by the Nebraska court in one line of the opinion. Whatever good reasons that court had for its view are not disclosed by the

or.

opinion, which, therefore, does not give me any light. The cause of action in the Nebraska case was for supplying a windmill. The counsel in the case for the lienor put their claim upon the ground that it was for both labor and material, and that only pure material men were excluded by the homestead exemption. That the claim was for both labor and material does not, however, appear in the statement of facts made by the court, nor in the meager expression of opinion as to the law. But if the Nebraska case was, as counsel therein argued, one for material and labor both, then the case is not in conflict with the views which I suggest; and, if the case was one for material only, all that I can say is that the case was not sufficiently reasoned out to give me any satisfaction. This matter was suggested in Merrigan v. English, supra, and the 70 and 74 Cal. (11 and 16 Pac. Rep.) cases were called to the attention of the court. But the court held that those cases were not in point in Merrigan v. English, and said: "In each of the cases cited, the court treated the lien as a lien for material alone. In the first case cited, the lien, as a matter of fact, was for material only. We do not hold that a material man has such a lien as will be valid against a homestead. That is not the question before us." I am therefore of opinion that the district court should be sustained in its finding that the premises were a homestead, and also in its conclusion that a pure material man or lumberman cannot enforce a lien against a homestead.

MATTOCK v. GOUGHNER. (Supreme Court of Montana. Sept. 5, 1893.) APPEAL EFFECT OF REVERSAL-CONFLICTING EV

IDENCE.

1. Where appeal is taken from the entire judgment, a general reversal and remand require a new trial of all the issues, as if the case had never been tried.

2. Where the record on appeal from a judgment based on conflicting evidence does not disclose any abuse of judicial discretion in overruling the motion for a new trial, the judgment will not be disturbed.

Appeal from district court, Park county; Frank Henry, Judge.

Action by Getchell L. Mattock against Emanuel Goughner. Plaintiff had judgment, from which, and an order denying a new trial, defendant appeals. Affirmed.

For former report, see 28 Pac. Rep. 301. Savage & Day, for appellant. Allen R. Joy, for respondent.

PEMBERTON, C. J. This is a suit for debt. There are two counts in the complaint, the first alleging an indebtedness for labor done and performed. The second is based on a duebill. This is the second appeal of this case. See Mattock v. Goughnour,

11 Mont. 265, 28 Fac. Rep. 301. The former appeal was taken from the entire judgment, as well as the order denying a new trial. This court reversed the judgment, set aside the order appealed from, and remanded the cause for new trial. At the second trial of the case in the court below the appellant sought, and requested the court, to confine the issues to be tried to the first count in the complaint; claiming that the judgment of this court on the former appeal was limited to the insufficiency of the evidence to sustain the verdict of the jury on said first count and consequently left nothing to be tried but the issues under this count. The appellant, at the close of the testimony, requested the court to instruct the jury in this respect as follows: "You are instructed that the only issue in controversy in this action is as to the employment of the plaintiff by the defendant subsequent to the 25th day of October, 1888, and you will exclude from your consideration all evidence of the execution of the duebill, and the payment made thereon." The court refused the request of the appellant, and this action is assigned as error on this appeal.

The former appeal of this cause was from the entire judgment, and order of the trial court refusing a new trial. This court reversed the entire judgment, and set aside the order denying a new trial, and remanded the cause for new trial. This placed the case in the court below, at the time of the second trial, in the same condition as if it had never been tried at all. The former appeal was not taken from a part of the judgment rendered at the first trial, as might have been done. Code Civil Proc. § 444, p. 180; Bank v. Fuqua, 11 Mont. 285, 28 Pac. Rep. 291. Everything done in the first trial by the court below was reversed, set aside, and the whole case remanded for a new trial by this court on the former appeal. We think the court committed no error in refusing the request of appellant, complained of here. We cannot see how the trial court could have done otherwise than try the whole case anew.

The appellant insists that the evidence is insufficient to sustain the verdict, and claims the evidence is substantially the same as on the former trial, and claims that, as this court held the evidence insufficient to support the verdict in the former trial, it must do so in this appeal. The respondent claims that the evidence is not the same in this as in the former trial; that other evidence and circumstances are disclosed in this record, not in the former, sufficient to authorize and support the verdict, and the record sustains this position. There is, it must be confessed, a palpable conflict in the evidence in this case. The jury, we think, would have been justified in finding for either party. We cannot say that the evidence is so satisfactory as to make it clear to our minds that the verdict should not have been the other way. But it is the province of the jury, under the law.

to pass upon the credibility of the witnesses, and the weight to be given to their testimony, and to determine conflicts therein. The court below heard the witnesses testify on the stand, observed their manner, considered whatever interest they may have had in the result of the suit, and doubtless duly considered these matters in passing upon the motion for a new trial. In such matters a very large discretionary power is given to the trial court, and rightly so. We cannot interfere with the exercise of this power, unless convinced, from a consideration of the whole record, that there has been shown abuse of such discretionary power. From such consideration of the record, we are not satisfied that there has been such an abuse of discretion as to make it incumbent upon us to interrupt the judgment and rulings of the court below, especially as this is the second trial of this cause. The judgment of the court below is affirmed.

HARWOOD, J., concurs.

DE WITT, J. I concur in the affirmance. My views were fully expressed on the former appeal. 11 Mont. 265, 28 Pac. Rep. 301.

JORGENSON. BUTTE & MONTANA COMMERCIAL CO.

Supreme Court of Montana. Sept. 5, 1893.) PRACTICE-NONSUIT-CROSS-EXAMINATION.

1. Plaintiff was injured by a fall while employed as a carpenter by defendant, and in an action therefor he alleged that the fall resulted from the incompetency of H., a coservant, and that because of the careless and unskillful treatment of the wound by a surgeon employed by defendant it was necessary to amputate plaintiff's leg. The evidence failed to show any lack of skill by H., or the necessity for his exercise of any particular skill, or that defendant had knowledge of any incompetency of H. of which plaintiff was ignorant. Plaintiff's evidence tended to show that H. was not working with plaintiff at the time of his injury, and that plaintiff had stated that he alone was to blame; that the surgeon employed was duly qualified, under the laws of the state, to practice his profession; and it failed to show any injury to the leg, as a result of a lack of skill. Held, that a nonsuit was properly directed.

2. In an action by a servant for personal injuries resulting from the incompetency of H., a coservant, plaintiff called H. as a witness, stating that "the witness would refer to the time and place plaintiff fell, for the purpose of fixing the time and place of other events in connection with the case, and does not wish to make the witness his witness as to the acts he was doing at the immediate time of the fall." H. then testified to facts connected with plaintiff's fall. Held proper to allow H. to be cross-examined as to the entire case.

Appeal from district court, Cascade county: Charles H. Benton, Judge.

Action for personal injuries by H. C. Jorgenson against the Butte & Montana Commercial Company. From a judgment of nonsuit directed by the court, plaintiff appeals. Affirmed.

F. C. Park, for appellant. Arthur J. Shores, for respondent.

PEMBERTON, C. J. This is a suit for damages for personal injuries. The appellant, who was plaintiff below, alleges in his complaint that he is a skilled carpenter; that on March 5, 1891, he was employed by respondent to work on its mill at Great Falls; that on the 20th day of March, 1891, while engaged at work handling heavy plank on the third story of respondent's said mill, he fell to the floor below, breaking his leg; that his fall, by which he was so injured, was caused by the incompetency, lack of skill and knowledge, of one Harlander, a colaborer who was engaged in assisting him in his work; that defendant knew of the incompetency of the said Harlander, and appellant did not. The complaint further alleges that defendant employed, as it was bound to do under its contract with appellant, surgeons to treat his broken limb; that these surgeons so carelessly and unskillfully treated his leg, and were so negligent in nursing and caring for appellant during his sickness, that it became and was 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 to the respondent at the time, and unknown to appellant; that defendant was guilty of negligence in the employment of said unskillful laborer to assist appellant in his work on said building, and in the employment of unskillful and negligent surgeons to treat and nurse him. The appellant testifled to the fact of his falling, how it occurred, and the result. He attributes his fall to the incompetency of Harlander. to the manner of his treatment by the surgeons and nurses, his evidence is unreliable, as he admits that a great part of the time he was unconscious. Besides, his testimony

As

does not show any knowledge of these matters. He was manifestly not supported by the testimony of his other witnesses as to the material facts in his evidence. Harlander, the man appellant says was assisting him at the time he fell, and to whose incompetency appellant attributes his fall and injury, swears he was not helping appellant at the time he fell and was injured; that the appellant was working alone at that time. H. L. Smith, another witness for ap pellant, testified as follows: "I talked with him [appellant] about this fall. He said he slipped and fell, and said nobody was to blame for it but himself." The appellant testified that at the time he fell he was using a pevee in handling and moving the planks. Beecher, a witness for appellant, testified that he was a carpenter, at work on the same building with appellant at the time he fell; that appellant was using a pevee; that he considered it safer working where appellant was without a pevee; and that the superintendent had given all

the men instructions not to use a pevee in work like that in which appellant was engaged. The evidence offered by the appellant as to the negligence and want of skill of the surgeons who treated him is vague, and far from being satisfactory. It is true the appellant testified to some apparent neglect and want of care during his sickness. Smith, a witness for appellant, testified that he assisted in taking care of the appellant part of the time; talked to him about his condition; that he did not complain at any time of how he was treated; that there was no lack of attendance at any time. The surgeon who treated him testified to proper treatment and care of appellant. Although there is some evidence of unprofessional witnesses which might be construed into meaning that there was some want of care, yet on the whole the evidence seems to show that as good care as the circumstances would admit of was bestowed upon appellant. There is no evidence showing that the surgeons employed to treat appellant were not skilled and learned in their profession. All these witnesses were the appellant's witnesses. The defendant offered no evidence, but on the conclusion of the testimony offered by appellant moved the trial court for an instruction to the jury to render a verdict for the defendant. The court gave this instruction, and upon the verdict so rendered a judgment was entered for the defendant for costs. From this judgment this appeal is brought.

This

The principal error complained of is the action of the trial court in directing the jury to render a verdict for the respondent. action of the court was tantamount to directing a nonsuit against the appellant for failure of the proof to sustain the allegations of the complaint. McKay v. Railway Co., (Mont.) 31 Pac. Rep. 999; Creek v. McManus, (Mont.) 32 Pac. Rep. 675. If there was such failure of proof the action of the court was not error. The evidence does not disclose wherein any particular skill was required on the part of appellant's colaborer to do the work he was employed in doing, or, if skill was necessary, wherein it was not exercised, or, if there was a lack of necessary skill, that the defendant had knowledge thereof, and that appellant was ignorant thereof. The evidence offered by plaintiff tends to show that he contributed to his own injury, by disobeying orders not to use the pevee in the work he was doing. The evidence also tends to show that Harlander, on account of whose incompetency and want of skill appellant claims he was injured, was not working with appellant at the time he fell. Harlander SO swears. Witness Smith also testified that after appellant was hurt he stated that he alone was to be blamed; that he slipped and fell from the building. The evidence shows that the surgeons and physicians employed by respondent to treat

appellant were duly licensed, qualified, and authorized, under the laws of this state, to practice their profession, and fails to show that appellant hurt his leg or sustained damage as a result of a want of skill or care on their part in the treatment of his wound. From this review of the evidence, we are unable to see how the court below could have done otherwise than to instruct the jury to find for the defendant, or direct a nonsuit on the close of the appellant's testimony. On the evidence, we are of opinion that appellant had shown no right to recover, or that there was any substantial merit in his

cause.

Appellant also complains of the action of the court in permitting the cross-examination of the witness Harlander. Appellant placed the witness on the stand, and stated that "the witness would refer to the time and place Mr. Jorgenson fell for the purpose of fixing the time and place of other events in connection with the case, and does not wish to make the witness his witness as to the acts he was doing at the immediate time of the fall." The witness swore to facts contemporaneous with the fall of the appellant, so closely connected with the main fact that we think there was no error in permitting his being cross-examined as to the entire case, especially as he was the person to whose want of skill and care the appellant attributes his fall and injury.

The appellant also claims that the trial court erred in permitting defendant to amend its answer while the jury was being impaneled. It does not appear that appellant was surprised, or in any way injured or inconvenienced, by the amendment. No postponement or continuance of the cause was rendered necessary thereby, or demanded on account thereof, by appellant. We are unable to see how appellant was aggrieved by this action of the trial court.

The appellant's deposition was read by his counsel in evidence at the trial, he not being present. Counsel for appellant did not, for some reason, desire to read the whole thereof to the jury. At the request of the defendant the court required the appellant's counsel to read the whole thereof. This is urged as error. Without inquiring whether this was error or not, it is apparent the appellant was not injured, as the part of the deposition the appellant sought to omit referred to the contract for nursing and medical treatment set up in the complaint, and the reading thereof to the jury could not possibly damage the appellant. We have been una ble to discover any substantial errors in the rulings and action of the trial court in the trial of this cause. The case seems to us to be void of merit, on the appellant's own showing. The judgment of the court below is affirmed.

HARWOOD and DE WITT, JJ., concur.

STATE ex rel. SIMARD ▼. FOURTH JUDICIAL DISTRICT COURT.

(Supreme Court of Montana. Sept. 5, 1893.) CERTIORARI-CONTEMPT-VIOLATION OF INJUNC

TION.

1. The supreme court of Montana can review contempt proceedings on certiorari.

2. Defendant, recognizing the owner's title to certain land, agreed to cut the hay for him, but soon thereafter purported to sell the grass to L., and agreed to cut it for him. Afterwards, when an injunction against interfering with the grass was served on him, defendant said the grass was his own, and he was going to have it. He accompanied L. to consult "their lawyer," and on their return he advised the latter to cut the grass. Held, that defendant was guilty of contempt in procuring the violation of the injunction.

Application by Eugene Simard for a writ of certiorari to the fourth judicial district court to review the action of the court in fining relator for contempt of court. Writ denied.

Statement of the case by the justice delivering the opinion:

.

This is an application for a writ of certiorari to review the action of the fourth judicial district court in fining relator for an alleged contempt of court. Relator was attached for contempt, and a hearing was had, at which evidence was introduced. In the return to the writ of certiorari from this court, the papers, proceedings, and evidence which were before the district court, and upon which relator was adjudged to be guilty of contempt, are certified to this court, and from them the following statement of facts may be made: J. O. Hanratty and A. R. Tillman commenced an action in the fourth judicial district court against Eugene Simard, to obtain a judgment against him, restraining him from cutting hay on certain land, alleged in the complaint to belong to Hanratty and Tillman. A writ of injunction was issued July 28, 1893, from the district court, and served on Simard, the same day. On July 31st Hanratty made affidavit before the court that the injunction had been violated by the aid of the servants and employes of Simard, in that they had gone upon the land, and removed all the hay. An attachment for contempt was issued against said Simard and Asselin. The hearing was set for August 3, 1893. On the hearing the pleadings in the case of Hanratty et al. v. Simard were before the court, and also testimony was taken of witnesses. The testimony of Simard, Asselin, La Casse, and Hanratty, which the court below had before it on the hearing, being reduced to a short narrative, is as follows: The land was claimed by Hanratty and Tillman through purchase from the Northern Pacific Railroad Company, made May 31, 1893. This was known to Simard and to Asselin and La Casse.

Six years previous Simard had sown grass seed upon the land, and had fenced it

and cut the hay. Other than these acts, he made no claim of any rights to the hay or the land. In June Simard made a contract with Hanratty and Tillman that he would cut the grass for them for five dollars a ton. Afterwards, and on July 10, 1893, he sold the grass as his own, as he says, to Asselin and La Casse. After that, on July 24th, he told Hanratty that he had concluded to cut the grass for himself. Asselin and La Casse employed Simard to cut the grass, which he was doing on July 28, 1893, at which time the injunction was served upon him. Asselin was never on the land but once since the 10th of July, until he began to cut the hay, as hereinafter described. A few moments after the injunction order was served upon Simard, he told Hanratty that the grass belonged to him, Simard, and that he was going to have it, and that he, Hanratty, could not hurt him for taking it. He then went at once to Frenchtown, and told Asselin of the service of the injunc tion, and he and Asselin went to Missoula to consult lawyers regarding the moving of the hay. On their way to Missoula nothing was said by either of them regarding the hay or the moving of it. Returning from Missoula, Simard told Asselin that he thought, from what their lawyers said, he, Asselin, had better go ahead and cut said hay. Simard himself took no part in the moving of the hay, but the same was all taken from the ground by Asselin on the 30th of July. Hanratty had a talk with Simard regarding his purchase of the land from the railroad company, and Simard never in any way made any objection to Hanratty's ownership of the land prior to about the 24th of July, when he claimed the grass growing thereon as his own. Upon the facts appearing as above recited, the district court discharged Asselin from the charge of contempt, and held Simard guilty, and fined him $100 and costs. Simard contends that this action of the district court was without jurisdiction, and should be annulled by this court upon certiorari.

Bickford, Stiff & Hershey, for relator. Marshall, Francis & Corbett, for respondent.

DE WITT, J., (after stating the facts.) The respondent contends that this contempt proceeding is not reviewable in this court on certiorari, but that contention seems to be disposed of by the following cases: In re McCutcheon, 10 Mont. 115, 25 Pac. Rep. 97; In re Shannon, 11 Mont. 67, 27 Pac. Rep. 352; In re MacKnight, 11 Mont. 126, 27 Pac. Rep. 336. We proceed to the merits of the application.

The statement of case above recites what the testimony before the court tended to prove, and, indeed, is conceded by the reiator to be correct, except in one particular, which is not of great importance. We there