The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1891-02-08
ROOT GAINS TWO POINTS,
The Silver Bow Jury Panel VIII
DO Drawn s H. Con-
tended For.
kilograms Produced Before q
Commissioners to Show a
Conspiracy.
the Decisioa in Lewis and Clarke
County.

The decision Of the supreme court yester.
day morning iii the Davis will case IL con
sidered a victory for Henry A.. Root and the
other claimants. so far as IL goes. TIL,
court at Butte will now appoint q jury som
mission Of three to select the names Of 3l
taxpayers to form a Jury panel from which
thu jurors will DO selected to pass upon the
alleged fraudulent will offered for probate
BY John A. Davis.
Root and Maria Cummings on the part Of
the contestants of the will applied to the
supreme court for a temporary writ Of man
date to compel Judge Mediation to appoint
three persons to serve az a commission in
selecting a petty jury. The same parties
also applied for a writ of prohibition ia
command the judge from refraining from
further proceedings in the matter of the
probate Of the alleged will until otherwise
ordered by the supreme court. There ID nc
controversy respecting these facts. The
question before the supreme court was to
BIO solved by the construction OF the consti-
tuition and statutes relating to the impanel-
ing OF a jury in district courts which exer-
else jurisdiction in a single county. The
material facts considered by the court
were: Andrew J. Davis died March
il, 1890, in Butte, and left an estate exceed-
mings and others are heirs at law Of the
deceased. John A. Davis, q brother of the
deceased, produced in the Silver Bow dis
trict court July ~, 1880, . paper %purporting
to be the will of the deceased, and to have
been executed in the state of Iowa July ~.
1866. BY it the estate with the exception Of
some small annuities was bequsathed to
John A. Davis. Root and Maria Cummings
within the proper time appeared and con-
tested the will in the manner required by
law. The issues Of facts thereby raised
we're settled October %, 1880, and Judge
second of this month. On January 23th
last the contestants filed in his court their
demand in writing to have these issues
tried by. a jury. The panel of jurors was
obtained and drawn in pursuance of a
certain order of the court made December
20. 1890.
Judge Mediation took his position HON
section II of the constitution, which reads:
1.-The district court in each county which
is a judicial district by itself, shall be al
ways open for business, except on legal hol-
idays and n%on-iudicinl days. In each dis
until otherwise provided by law, the judges
of such district shall tx the term OF
court, provided there shall be at least four
terms q year held in each county" Cnder
section fifteen Of the act of March, 1889, he
had juries drawn whenever necessary. The
act OF March authorized the judge of q ter
ritorial district court to appoint a jury
commission to select jurors for each term,
but this was not done in Silver Bow at the
term before the admission Of the state.
II the position of Judge Mediation is
in the second judicial district which il com.
posed of the county Of Silver Bow, say the
supreme court. a remarkable conclusion
must be declared. Juries would be i'm
paneled in one forum by a mode which
would be different from that pursued in
other courts of equal jurisdiction, and the
wholesome part Of the act authorizing the
jury commission would be obeyed in twelve
counties md ignored in the remainder of
the state. There is no net which prescribes
the times when the terms of the district
courts shall begin or end, and by virtue of
the acts of congress the territorial courts
vera closhed with this power. The state
constitution has expressly empowered the
judges Of certain districts to fix the terms
Of the courts subject to a limitation as to
the number which must be held in every
year, and until otherwise prescribed by
law. There must be one statute for the
e%mpanellinR of a petty jury by each district
court of the state. And the rights of the
parties which are dependent upon the COM
msncement, duration or adjournment of its
terms, which have been protected in the ex-
corpus OF the supreme supreme court from
the code of civil procedure and criminal
practice act must be the same in every
county. The cour say: We have examined
the rules of practice which have been
adopted by Judge Mediation, and find that |
he has not fixed the terms of the court ac-
cording to the views which have been up |
hold by US. This is an omission which |
should be promptly remedied.
W cannot conclude these observations
without commendig the conduct of the re- /
spondent, who seems to have been led into |
error by n Misrepresentation Of the language
OF the seventeenth section of the constitu.
tion. and who has in a spirit of candor re-
quested u to remove the cloud of doubt"
When asked what would be the effect of
tho decision in Lewis and Clarke Judge |
Hun said: "The situation in this county
is different from that in Silver Bow. In the
court in Helena the first iuries
drawn after the state was admitted we're
from the lists furnished by the jury COM
and the law strictly followed by
Judge Hunt. Since then the lures have
been drawn under the provision of the law
directing the judge and clerk to draw them.
No special terms of court have been desio-
mated and no adiournments taken sine die.
Questions therefore may arise here which
are mot touched upon by the opinion Of the
court"
THEY WANT H KILOGRAMS.