The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1894-03-20
IN The SUPREME COURT
S.Y,Fal Gases Of Inp0rtanC, D,cidsd
al Helena
SOME STOOD MANY YEARS
One Man Gets Judgment After
Fourteen Years OF Legal De-
lays-ihe Opinions as
Handed Down.
srcrlnl Dl.pa,ca to the standari.

Special Dlspl,ch to the standard.
HELENA. March i9.-The supreme court
handed down iour decisions to-day. One
was in the case OF David Merritt, appol-
liant, vs.. d. j. McNaliy ct al, respondent,
an appeal from LOWS nnd Clarke county.
MCNaIly was building inspector of
Helena. A wall OF two stony stone and
brick building next to Merritt's house fell
in August, 1891, crushing il in, destroying
his furniture and killing has infant child.
lie claims that this was due to McNally's
neglect to see that the new building was
constructed in safe manner Suit
was brought against McNally as
building inspector and his baudsmen. A
demurrer was sustained by the lower
court on the ground that the complaint
did not state facts sufficient for cause OF
action. From this an appeal was taken.
The supreme court quotes aut horities 10
the effect that whore public officer 10
exercising ministerial powers and per-
forms his duties neglgently. or fails to
perform that NJ all, and damage results
to another through that failure, the person
so damaged has cause Of action against
the officer. by the city ordinance fixing
the inspectors duty, he is required to
see that each house is being erected
according 10 ordnance. In McNally's
view tho word "see" would seem 20 imply
simply TO look at or to observe. The
court thinks II Is used in the sense to
cause to Dc done or accomplished. Tho
court concludes thai tho duty was clearly
imposed on the inspector to require that
the building IN question was properly
erected. The judgment OF tho district
court was reversed. opinion by Justice
Dewitt. Chief Justice Psmberton and
Associate Justice Hlrwood concur in q
separate opinion, in which they say that
il McNaliy's Interpretation OF the ordl-
nance regarding his duties are correct, IL
would have been as well, and perhaps
even better. less expensive to the city and
less dangerous To the people, to have ap-
pointed stone or wooden statue.
In the matter OF the estate of Frank
Mouilierat, an appeal from Gallatn
| county. the claim OF one Meudouhall had
boon d.sallowcd ON protest OF two credit
ors Of the estate. Appeal was taken on
| the ground that the claim having been
previously allowed by tho administrator
and approved bv the court. could not then
/ bo attached. The supreme court rules
| that IL can bc attached under section 267
Of the probate practice act, which says:
ION the day appointed, any person inter-
estcd in tho estate may appear and file
| his exceptions in writing. aud contest the
clalm.' Tho previous allowance Of the
account by tho administrator and its
approval by the court, the opinion
says, was not final Judgment.
Mendenhall's claim was for an amount
paid as judgment in the United States
court as bondsman Tor Mouillerat. and
that claim was therefore not barred by
tho statute of limitations. The supreme
court ilnds that the amount paid was on
compromise. and the claim therefore be-
came an open account, and as such was
barred by the statute of limitations; and
that the administrator must pload the
statute Of limitations against. The opin-
ion is by Dewitt, Pemberton concurrinc.
Harwood dissents.
In William Braithwaitc, appellant, YER
sus Philip Harvey, administrator Of tho
estate of Joseph Leighton, deceased. re-
spondcnt; appeal from Custer. suit
against the administrator growing out OF
n contract between BraithwaIie and Leigh
ton ct al. in 1880 for transporting freight
from Bismarck to Fort Buford by boat.
SUIT was brought in Dakota IN 1857 and
judgment obtained. In tho present suit
the defendant made n motion TO strike
out all that part of the complaint
referring TO the Dakota judgment as irrel-
cvaut on the ground that IL had no bind
ing effect OH the administrator for tho
same estate in Montana. The motion
was allowed 10y the trial court aud n de-
murrer sustained on the ground that the
complaint did not show sufficient facts to
constitute a cause OF action and that it
was barred by the statute of limitation.
The supreme court sustaius tho trial
court. Opinion 10y Chief Justice Pember-
ton.
William Muth, receiver of Greenhood,
Rohm d Go. vs.. ). Il. Erwin, appellant; |;
appeal from Lewis aud Clarke. Muth
brought suit as receiver against Irwin TO
enforce payment of note and sued out
an attachment writ. Motion to dissolve
the attachment was oYcrruled and an ap-
peal taken. Judgment sustained.
In the matter of the disharment pro-
cecdiugs against l.. L. Caldwell the court
sustained the demurrer of Caldwell as TO
five out of six OF tho charges demurred
to. Answer to the remaining charge will
be filed. Answers have already been made
TO l. where no demurrcrs wero inter
posed.
Tho supreme court admitted Lieut..
George Ahern OF the united States army
: 10 practice. Ahern has been military in-
struct0r in Deer Lodge college and is 60
ing Oh an expedition TO the north pole.