The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-03-13
A Decision OF Great Interest tC
Counties Which May Change
Classification.
yellowstone Advanced a Grade
by Taking Part OF tho
Reservation.
Judgment Ordered Entered Ss Rendered
"A Bond That Held Good The Kicker
Estate Decision Roanirmed.


o. she state OF Montana, ex. rel John r.
Herford. relstor, versus Andrew Is Cook
respondent II 10 very important in view
Of the changes that are liable 90 Occur In
the elassiGcatioa Of counties through in
ereasss in tbs assessed valuation Of prop
erty IN their limits Tue opinion ia as fol-
lows
"Herford. since Jan. I. 1898. has been
county attorney of Yellowstone county;
Cook il state audito-. Herford prays that
wit Of maudamus issue requiring the
state auditor 10 draw a warrant In his favor
for certain sums which be claims are due
him az county attorney Of second class
county. Ihs state moves TO quash the
wit The contention is whether ths petit
tion shows that Yellowstone county Is a
second class couaty. A second class county
must have an assessed valuation Of over
1900 600 and less than IS 600, 900 under ths
act OF March 6 1891. In 1892 the assessed
valuation OF Yellowstone county was S3s0,-
600. On Oct Il. 1892. portion Of the Crow
Indian reservation became a part OF Yell
lowstons county. The property on this
portion Of the reservation was in 1892 as
sessed by Custer county at Ssla0S7. Alts'
OF Yellowstone county the same prop
ersT so assessed remained thereon.
1t ia therefore the fact that when Herford
was elected Nov s. 1872, and qualified Jan.
l. 1898 tho assessed valuation Of Yellow
stone county was com oeed OF two items;
First IS 500 600. tbs Yellowstone assess
ment OF 1892; aud. second. SSl7,0SL an
amount assessed by Custer county, and
added 10 Yellowstone county by the accre-
tion OF the piece Of the reservation These
two sums aggregate $L6lL037. Therefore,
prior 10 lie ford's election and qualifca-
tion, bis county had the assessed valuation
of a second class county. This fact enti-
tleshim, under the provisions Of the law OF
March 6. 1891, passed prior to bis election
and qualification. 10 a salary a. a second
class county officer. This the state auditor
refused. Hence. this application for writ
Of mandamus.
The only question is as TO the evidence
by which 10 is shown that Yellowstone IL a
second class county. The evidence bv
which il is shown Is Custer county's essoss-
ment In 1892 upon the property which at
she time OF the assessment was in Custer
county, but which wont with the land on
which 10 was found into Yellowstone
county, Oct. Il 1892. That assessed
valuation was $sla031 That fact could be
Rscertained on Jan. /. 1898, when HerfOrd's
term Of ONCE commenced, By no method
other than the assessment books OF Custer
county. We are satisfied that It sufiicisatly
appears that when he was elected county
attorney, and when be qualife1 Yellow
s1ons was a second class county. He IL
therefore entitled 20 this writ But coun-
eel stated in argument that Hereford nt
this time demands a war ant from the state
auditor for only the Period Of time since
Ii q ~Hs
commanding the state auditor to draw war
rants in favor Of Teiatof IN such amounts
as shall pay him as far as the stats Is Liable
for his salary, 81 the rate Of Sl5JO per an
nun, since Dec. !. 1898" Opinion by As
sociate Justice Dewitt.
Associate Justics DsW.tt also wrote the
opinion in the case Of George Parfott AZ
pellant versus Peter McDev.tt. respondent;
peal from Deer Lodge county. In the
lower court judgment was rendered 10 favor
Of Parrott McDevitt claimed that iudg-
ment had not been entered. Par OFT moved |
that judgment be entered uunc pro tune
which was denied by the district court /
4 he supreme court revorses this bscauss II {
a. peared By the reoo da that Judgment had /
been rendered and the district cuu should I
have therefore ordered % entered. The su- 4
IRENE court opinion savA why the dis /
tfiet court refused 20 orde, the Judgment I
entered nunc pro tune. doe- not appear by
the reeord. Nor can the " dest excursion (
into the field Of 81 m.ss discover reason /
for this decision. Tao order should have /
been made. Plaintiff is left In most uu- I
usual position for o successful litiQant. He I
obtained judgment. On defendants APP I
peal be obtained an Hffrmance. 10 has .
never been questioned that be has jrdg- T
ment. But the court qusshed his .
writ Of restitution, whether rightiully o. I
Wrcn fully, Il moi now before us for I
review. The court stayed ang further issu-
Yn of n nf
&c dings by the court we're upon she ground (
tha. Judgment had not been entered. 1heu
the court refused 20 order the judgment
entered. A wholly valueless judgment is
this. The plaintiff achieved Pyrric vic
tory; such a enc Rs WOuld lead him to eK-
claim. with tie king ~ EpIrus. Another
such q victory and / nm lost. 4 be law
cannot contemplate such resalss. The or
der OF the district cJurt Is rovo SD and the
case is remanded. with directions 70 that
court 10 order judgment 10 DO entered as
ire same vas rendered"
Chief Justice Psmberto wrote the opin-
ion in the case Of John h. Watson, plaintiff
ana appellant, versus Joseph O'Ntill end
Jacob Swiiz8r, defendants AMI rsapondsnts.
appeal from Lewis end Clarke county.
ONeih aud saitzsr we're on a bond for
81 900 for tred.rlck Eide. who contracted
10 put up business building for Watson,
aud 10 fu nish al mate % and laho. Wat
son alleged that he wag compelled to nav
tp47.ot through Elled failure TO furnish
certain labor anu material lie brought
the action ia the district court on the
theory that the bond vas defective ia that
~ ala NOT refer sufficiently 10 the contract
and cover the damages. aud asked that tLe
bond be reformed. Al the close Of the
evidence. O'Neill aud Switzsf asked Tor
non-sut on the gfou1d that there was
nothing TO prove any liability. This mo
ton was sustained ana "a pigment for uon-
suit entered. From this tDe appeal was
tnken. The supreme court say.
Tho question arises whether the trinl
court Was warranted Ia granting "a non
suit. thereby DENYING Watson oil relisf ia
the action, upon tho ground that 10 had
not made out sufficient facts 20 sustain bis
demand for reformation Of the bond We
are OF the opinion that Sic whole question
Of reformation Of tho bond was uuutces-
sarily brought into the action; and that the
te ms OF the bond, as executed. we're suil-
cieut ~ sustain this elton for the recovery
OF money which Watson may have been
compelled to pay out toward The furnishing
of the material ami labor. without any -
formation or extension % the terms Of the
bond" Judgment reversed.
The court also denied a clearing in tho
matter Of the estate OF j. G. Kicker. Thts
II the case where Ale Kicker heirs sued W
A. Chesaman, execute. for IN nc-
counting. hey were given Judgment ia
Judge Bucks department % the district
court The Supreme court reversed TINS
AID ordese the proceedings dismissed. An
application was made for q rehearing. This
Was denied yesterday. In th0 order DENY
ing u the supreme court says; There has
been no exposition Of the poiats wherein
the court overlooked or erroneoualy applied
sr rnnHrrIffrar