The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-02-08
BY THE SUPREME COURT.
Opinions in Three Important Cases
Originally Tried in Cas-
oade County.
Without Making a New Rule tho
Court Settles a Question
OF Delivery.
Tho District Court at Great Falls IL
Reversed In Throo of the
Appeals.

The District Court at Great Falls IL
Reversed In Three OF ths
Appeals.
Opinions in the following eases have been
rendered by the supreme court: Bardwell,
Robinson d Co.. appellants VI. II. A. An
derson, Timothy Il. Collins and John
Lepley. respondents. An action for judR-
msnt ON account and to forecloss a lien for
building materials alleged 10 have been
purchased by defendant Anderson from
PLAINTIFF assiRno-. y. n. Morgan, and
used in the construction of a three story
brick block, by Anderson a. contractor and
builder for Collins aud Lepley, known az
the Collins and Lepley block. Judgment
reversed and case remanded for trial.
Opinion by Associate Justice Harwood.
Tho Goodrich Lumber company. appel
Henry Weloh. respondents. An action to
obtain q judgment for an account and to
foreoloss u lien for lumber and material for
n building. supplied by plaintiff. Gelsthorpe
is the owner. Davis ia the contractor with
tho owne for tho construction of the
building and the person to whom the
building was sold. The defendant Weloh
lie a MORTGAGE under an instrument dated
March u. 1891. The material was fuHn-
ished between Jan. 8 and May 8 and the
lien was filed Nav IL. 1891. Tho property
against which il is sought to enforce the
lion, and that which 10 actually owned by
Gslsthorps ia lot 13, block 200 at Great
Falls. The desc iption In the notice OF the
lien is OF lot IA. block 200. The point Of the
appeal is whether the description, as made
In the notice Of lien, is such that
"ths property may be identified by said
dissertation" Section 1871, Attn division.
notice of lien in the case at bar is not de-
~fectivo, or Insufficient, or uncertain. 1t
does not come within the GLASS of csses
whe . descriptions of such a nature have
been allowed to be helped by averment.
The description of the ground ia perfectly
definite and certain. The only difficulty ia
that IL was = wholly wrong description. An
Indiana case remarks that a description in
a notice cannot be supplied by oral evil
dence. That 10 what ia sought to be done
plant a lot wholly different from the one
particularly described in the notice of lien.
The judgment of the court was that the
plaintiff take nothing by its complaint and
that Gslsthorpe and WEIGH rscovsf their
costs. But a cnuss of action is stated in
Suo SoIl UkulAluv "a q IL OcAb y
on an account for the material furnished to
him. Therefore the Judgment that the
plaintiff take nothing by its complaint was
not warranted, because all that the court
reached was that there was not a cause Of
action against the owner and a mortgage.
The district court IL therefors directed to
modify the judgment so that II shall DO to
the effect that the plaintiff take nothing by
its complaint, "a against Gelsthorps and
Welch only. The judgment as so modified
d. -Aa~1@1 ~s-s~ ~ AS
Dewitt.
Robert Stevenson. plaintiff and appel
liant, W. s. w. M&tteson, Jr., George l..
stevenson. L.nest w. Ryder. Jr.. and
James Blesoker, defendants and respond
ents. This 10 a suit brought in the lower
court by appellant to set aside and have
declared void q certain decd Of assignment.
On Jan. 16, 1892. George l.. Stevenson and
Ernest w. RYDER. d., who claim TO be CO.
partners doing business at Great Falls, as
Stevenson u Ryder. made an assignment
TO 8. w. Mattsson. Jr.. .of their slock Of
general hardwa o. harness. etc., for the
benefit Of the firms creditors. Tte deed
of assignment names but two preferred
creditors. to wit, First National bank Of
Great Falls for $1,000 and James Blseeksr:
is alleged that Stevenson l. Ryder
made the assignment without consulting
Blesohsr, the New York partner, who could
have easily been consulted BY telegraph. as
WAS often done in important matters AZ re-
quired by the articles Of co. partnership;
that Bleeoker did not eonsen. to said as
slpnment, or authorize 1t, but Immediately
repudiatsd il after hearing of it; that
Blocker was fraudulent!y mad q pre-
ferred creditor to the amount OF 81. 900.
The appellant obtained Judgment in the
lower court against Stevenson. Ryder and
Bleeoksr for 1864, which remains unsatis-
fed. Appellant asks that the assignment
be set aside and for other relief. The court
below sustained the demurrer, and the ap-
reliant declining to plead further, the
spondent Mattsson and rendered judgment
against appellant for costs. Ths respond
ents defend the action Of the court in sns.
tanning the demurrer and dismissinR tho ao-
ton a. to Respondent MatteBon on the
ground that judgment was rendered on the
declined to further plead after the demurrer
was sustained, because he believed no had
stated . good cause Of action in his COM
plant a. TO MRtteson. ss we'll as to the
other respondents. n had perhaps stated
Nil the facts no could state in an amended
complaint. II was his right in that case TO
stand on his complaint, and In tho event he
did 40, 1t was the duty Of the court TO ron
der Judgment for costs, so as to place the
appellant In a position to appeal. and his
asking the court TO do Its duty. or to render
such judgment as would allow of an appeal,
was not such e consent to tho Judgment as
to debar him OF the right to appeal.
Respondents further contend that the de-
murrsr Of respondent Mattsson should
have been sustained. because the complaint
contained no allegation that he (MRtter-
SOM. the assignee, had knowledge of the
matters alleged in the COMPLAINT to be
fraudulent. Respondent Matteson was a
proper party to this suit. because he was
the assignee. and had possession of the as
signed goods and property. which tho COM
plant alleges to have been fraudulently az
signed, and WAS presumably disposinQ of
tho pro erty for the purpose of paying OIL
the preferred credits, the principal one OF
which was alleged to be fictitious and fraud
nlent. Matteson also had a right to defend
the assignment. and for that reason alone
was a proper party. Whether there was
any allegation in the complaint imilieating
him i'll the alleged frauds, il immateriai.
1t was the tight and tho duty of
the cou upon the fling of the COM
plant. to make such orders in relation
to the assigned estate, az wsrs
necessary to preserve 1t for the use and ben
eft of the r ghtful creditors, SO as to rem
der available any Judgment that might be
rendered in the final determination OF this
cause. The court could have appointed a
receiver to hold and care for the assigned
estate until final judgment herein, 30 that
If the appellant should succeed in this 40
tion there would have been something out
of the estate left out ut which he could sat
isfy his claim. To sustain the demurrer
and dismias this cause rs to Mattsson would