The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-02-03
CELEBRATED CASE.
Another Chapter in the Legal Battle
for ths Distribution OF the
Davis Millions.
Henry A. Root Succeeds in Having
the Silver Bow Court
Restrained.
4 Writ of Prohibition and q Writ Of Man
damus Granted by the Supreme
Court.

The supreme court yesterday granted
the application of Henry A.. Root, contest
ant in the Davis will case, for a writ oil
prohibition on the district court of Silver
Bow county, and a writ of mandamus on j.
j.. McHatton, the judge of said court to ap-
pear before the supreme court. The writ is
made returnable at 10 o'clock tomorrow.
This is the first writ of prohibition issued
by the supreme court since Montana be-
came a state. Under this procedure the
Judge Of the Silver Bow court cannot go on
with the probate of the alleged Davis will
until cause is shown why he should not be
restrained.
In the affidavit of Henry A. Root for
himself and Maria Cummings, some pretty
strong assertions are made. The %applioa-
zion for the writs is based upon the pre-
sumption that the trial jury in Silver Bow
was not drawn in accordance
with law. The case was to come
up in Butte yesterday. The afiant,
Root, reiterates his allegation that the will
was never executed by the deceased and was
and is a fraud and forgery, and if ever exc
octed by the deceased, it was duly and
legally revoked by him. On December 20
the contest was set for hearing for Febru-
airy 2. 1891, and that Notwithstanding the
protest of the contestant who filed atfidavits
setting forth that it would be impossible
for them to be ready for trial at that time,
ever though the highest degree of diligence
was used, the trial was fixed for that day
and their application for continuance was
overruled. Then q demand was made for a
trial jury drawn in accordance with law. 1t
Us alleged that no legal jury is in attendance
at the said court, but she court proposed
and threatened to compel the contestants to
proceed with the hearing before a jury IN
lawfully drawn. 1t is further alleged that
~ = .-.-A ---.. l-- ~~,,~ 80 Ah&
statutes Of Montana in the matter of draw
ing a jury. The af6ant is informed and
believes that the panel of twenty
foul jurors are SO prejudiced against
the contestants that they will
not make fair and impartial
jurors. and that prepayment and his
friends have been diligent in creating a
prejudice against the contestants; that
newspapers have published almost every
step in the case, and at many times COM
ments have been mado in the papers tend
ing to prejudice the community against the
contestants.
The affiant says also that he believes the
Judge of the Silver Bow court is prejudiced
against the contestants. and that any jury
heretofore or hereafter drawn under the
direction and assistance of the said court
would not be fair INK impartial, and that
the said court is not disqualified, so that
the contestants can obtain Il change OF the
place of trial. He further AYERS that the
said court is proceeding and threatens to
and will proceed with the trial, whereby
the contestants will be compelled to submit
and have their legal rights to a vast amount
of property determined by an unfair, par
tial and illegal jury, and before a preiu-
diced judge. On these grounds the writs
were applied for and granted.
Il. w. Stapleton also makes affidavit to
the illegality of ths jury, and says there
should be 300 names drawn by a commits
sion, appointed by the court, which was not
DONE.