The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-12-10
H DISTRICT COURT.


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Bssts Grand Opera House Cass--Cha'
lotto sohmitt's DsQaost.
Judge Buck yesterday decided . numbs
Of cases which had been ssisd before hi'
and in whish judgment was withheld nj u
time. In the case Of the Grand Opsl
House company. Of Butte, versus job
Mcguire, the judge found for the plaintiff
and ordered judgment accordingly. Th
action WAS ons transferred from Butte
After ths distraction Of the Butte opsr
house by fire In 1888 the opera houss CON
pany sold tho land where the building ha
stood to Msguirs and took a mortgage o.
1t for $1,000. Mcguire rebuilt the oper
house. Then an error was discovered Il
the description Of property In the mort
gage. the vest l71S feet being described n
the esst 17x feet. A number Of mechanic,
liens were then alsd on the property. Thes
lisns were brought up By J. A. Murray.
s~tockholdsr In che ops.a hosse company
Ths Grand Opera House company hRough
suit to reform the mortgage % 70 The sRso.
neous description. and also to forecloss tn,
mortgage. Murray eontendsd that hi
liens took precedence ~ TO che lis fec
not described in the mortgage. Maguir,
claimed that there WAS an error of several
thousands In the notes hs had Rrivsn BY
reasons Of credits not allowed. Judge Bucl
decides that the mortgage took the prsce-
dsace of the loans and shat the opsrs
house company 10 entitled to the fui
amount claimed and to foreclosure OF th,
mortgage.
In the matter OF the estate Of Charlotte
Echmitt, deceased. there was a motion on
behalf OF the Home Mission society OF the
bequsss of $500 made BY the deceased in
her will to the society. and now in oourk, b.
paid to the society. There was q counter
motion in behalf Of the rssiduary lsRasee.
b snsinRsr, named in the will, that the
amouns BE- paid to him. The contention
was shat ths society Aforesaid was u chRsi-
tAnls or benevolent organizations; that the
bsquess was made BY the deceased within
thirty days before she died. and that there
fore under the statute the bequest Was n
nullisy and goes BY law to the rssiduary
opinion that before this bsqusss can b.
paid over to either OF the parsies demand
Ing il. proof must be submitted to the court
~ to the character OF this society;
that IL 10 say, whether OF not
EXNAlA0OAO0 ~ A0AV0 AhbvA9
whether the burden 10 upon Brens,nger to
show this, OF upon the Home Mission soci-
ely Of the German Lutheran church. ~ the
court on ITS own motion should exact this
proof before paying over the money. The
order Of tbs court il, however, that the
and make out . pHima faoie showing to the
court that this society 10 benevolent or
charitable and falls within the Language Of
the prohibition OF the statute. Leave 10
given the society. ii Bronsiager should
make this prina facie showing, to rsbut the
sans and show that the society does not
fall within the prohibition of the statute
In the case Of Stephen /. Whalen 81. al.
v. William Harrison, = demurrer was sub
mittsd to the second amended complaint Of
the plaintiff. Leave was given plaintiff to
file an amended complaint during the last
term of court. At the time whom that
leave was given plaintiff. the court was not
fully apprissd Of the amendment sought to
DO made to the original complaint. The
original complaint in this action was filed
several years ago. Some time later leave
was given plaintiff to tls an amended COM
plant. Tbs present second amended COM
plant sought to enlarge the action BY at
D aged for, demanded that the plaintiff be
permitted 80 show in his contract
sued upon that q mistake occurred
snd that il he reformed and
q recovery be had In accordance with the
contract ~ reformed. The affidavit upon
amended complaint was based Judge Buck
hnds. upon closer investigation. wholly in
sufficient 10 justify an enlargement Of the
original action. dc says it would he an
abuse Of disc etion to allow the original
cause Of action altar so long a delay to be
upon the demurrer and. gives the plaintiff
leave to withdraw his demurrer and file q
motion to strike the second amended CON-
plant from the files.
The suit of the Elkhorn Trading COM
pany against the Tacoma Mining company |
and others, was an action to fasten re-
sponsibility on trustees for failure to make
annual statement of the affairs of the cor
poratien Judge Buck says: II am of the
opinion that the estoppel pleaded by the
Rust 10 a good defense. The
bri I OF the plaintiff proceeds upon the
theory that our statute requiring an annual
report Of tho affairs OF the corporation is a
she s1tsnt commended for. The brief of the
defendant kust fully answers every point
made by tho plaintiff. therefore find for
t.s defendant, and order judgment for
Rust with his COSTS"
A jury in Judge Hunts department of
the district court was engaged Yesterday on
tho case OF John Quirk VS.. Anna Miller,
and brought in n sealed verdict after ad-
journment. Anna Miller gave Sully Buyck
money to invest in Helena real estate for
her. He bought the property in her own
name. Qnirk claims to have secured her a
lawyer and Witnesses, who secured her a
verdict In the district court for SS,O 900. He
cinins that he was to get 10 20. Cent Of
whatever was recovered. She claims that
his advice and friendship WAS given on ac-
count of friendship only,
The case of 7. 9. Power VI. b. o. Lenoir
10 on trial in Judge Bucks department of
the district court, but was not completed
when court adjourned. lhs suit 10 for rent
of the upper rart Of the Steamboat block. |
plaintiff claiming n fraudulent transfer by
Lenoir to his wife. Lenoir claims to have
been indebted to his wife and to have made
tho transfer for she debt Judge Hunt was
y witness in the case. and testified that
Mrs. Lsnolr previous to her marriage had
considerable money.
In this case OF Joseph Ernst vs. Charles
Gnbisoh. Judge Buck ordered Il judgment in
favor Of plaintiff TO $3.50. IL.
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assortment in the state.