The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-06-26
DAVIS APPEAL CASES.
They Will be Heard by the Supreme
Court Next Wednes-
day.
Some Comments Made on the Afn-
davit Of Henry A. Root,
Appellant.
Ruling In tho Edgerten Separate Mainte-
nance Case-A New Panel of Trial
Jurors Summoned.

their briefs yesterday in the supreme court
in reply to the briefs of Henry A. Roots
attorneys. The three appeal cases are set
down for hearing on Wednesday,, July l at
two p. m. In reply to the charge of bias
aud prejudice on the part of Judge McHat-
ton Davis attorneys say: "The charge rests
upon the unsupported affidavit of Appellant
Root, and when reduced to its elements
consists in a complaint that the court has
in many instances differed on questions of
law from the affiant and his counsel.
The affidavit, however, is made the vehicle
for conveying to this court the most serious
charges that can be made against Il judicial
officer; and upon the slight foundation
of this affidavit counsel for contestants in
their brief; have taken occasion to make
what we call an unwarranted and uncalled
for attack on the judge of the cour below.
But IL needs no counter afidavita to refute
many of MI. Roots statements and
to show that lie has sworn SO
carelessly and reoklessly without
examination to ascertain the truth in many
instances, as to render him unworthy of
belief in any. Thus what Mr.. Root says in
his affidavit in regard to the rules of the
court and the wilful alteration of those
rules which he charges upon the judge be-
low, is contraaicted by the statements Of
one of his own counsel, MIR. Z. w. Toole.
That gentleman was too honorable to at
tempt to impose upon the court a statement
of his client which he knew to be untrue"
Referring to the action OF Judge McHat-
ton in ordering a jury panel to be drawn
from which to select jurors in the case
Roots affidavit is quoted from as follows:
"Said list of names was. as affiant is in
formed and believes, made up entirely by
the Judge of said court" To this Davis
attorneys say: ''This is a charge in effect,
AZ we understand it, that the Judge in per-
son and by his own direct action had
packed against contestants the panel from
which a jury for the trial of this cause
would be at least in part selected. Can it
be believed that such a charge as this,
which If true would consign a
judicial officer to everlasting infamy, would
be made and spread upon the records of the
court, and that too by a lawyer, for Mr..
Root, we believe is a member of the bar of
New York and of Montana, without first
having made thorough and careful %investi-
WV ~ 4OGLlAl U uluUuI
'Counsel for the appellant claim that the
contracts between John A. Davis and Err
win Davis and between John A. Davis and
Il. j. Davis, establish a want of integrity in
John A. Davis, and for this reason his APP
pointment should be revoked. 10 this we
reply that the want of integrity and any
and all other grounds which may be sug-
gested for the revocation of the appoint.
ment of John A Davis, or in any Wav af-
fecting the general administration of thu
the estate. can only arise for consideration
after the issue of lntestacy is determined
by refusing to probate the will. If the will
be admitted to probate these questions can
never arise. for in that event there can be
no general administration"
On the appeal of Maria Cummings from
an order denying and overruling petition to
set aside the order appointing John A. Da-
1.-The order is not appealable, and the court
has no jurisdiction except to dismiss the
appeal. The attempted appeal il from an
order denying the petition of Maria Cum
mlngs to set aside the order appointing
Davis administrator of the estate, and not
directing John A. Davis to qualify as ad-
minlstrator, as stated by appellants, for the
court made no order directing Davis to
qualify. There was but one petition and
one order denying it. The court below made
an order on April %, 1880, appointing DAVIS
VI tue G4tHGe ana directing
the issuance of letters to him uron his exc
cutting bond and qualifying as such. Pending
the appealof Rootfrom that order and before
it was affirmed by the court on July "a, 1890.
Davis presented to the court below the al
legged will of the deceased, n filed his
petition praying tho probate thereof. Root
n Cummings have filed answers to the
petition denying the genuineness of the
Will and resisting it's probate. These issues
are now pending, undeterminedin the court
below. Our contention is that in this state
of the case, pending the contest of the pro-
bate of the will, and Davis not having quail
ltied as administrator, the district court
had no power or jurisdiction to take any
further steps regarding the general admin
lstratlon of the estate; no jurisdiction to
grant general letters to Root or anyone
else, or to revoke the grant already made to
John A. Davis, or require him to qualify
or to do any act whatever az
general administrator of the estate.
h pending the contest as to the
probate of the will and until its determine
ton, the power of the court as regards the
general administration was md is suspend
ed. and that an exigency had arisen which
justified and required the appointment of Il
special administrator to take charge of the
estate until it could finally be determined
no question in regard to the general ad.
ministration. or in regard to the revocation
OF the grant OF letters to John A. Davis was
in order or could be properly considered BY
the court"
The attorneys who sign tho briefs TO,
Davis are Hon. w. W. Dixon, Col. w. F
Sanders, Judge M. Kirkpatrick and Forbi.
d Forbis.