The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1894-02-20

accepted bv C3ckrn AMI recaiptsd bills for
] ell material and labor furnished to him bY
Davie. 10 appears that Cockfiil did Win.
hold payment OF the last inatal ment ana
applied 10 on the liens. Daring the ttlal
she court granted a motion 20 dismiss the
case as 90 Cornelius. leaving 10 90 proee. d
against kennar This ruling WAS MADE
bscause Cockiill VAS unSbie 90 trove
that Cornelius signed the bond With
the understanding that 10 should be de-
livered aud have effect without the sigma
turs OF Davis. Ia thu opinion OF the su-
irene court 10 was not necessary 90 show
an express understanding 90 that eject.
outside Of the bond. Both parties on the
appeal insisted that the court erred In dis
missing Cornelius and giving Judgment
alone against keuner "Cockulfs ooun-
sci, the court says. may be right In their
position that nader the law aud the terms
OF the obligation sued on. they have q right
TO proceed against one surety alone. but
in this case they have proceeded against
both suraties. aud 10 has been adIudieatsd
and determined IN this action that the co
surety with Renner ia not liable. II this
diets mination Is erroneous as this inVssti-
CATION leads Us 10 conclude. then Renuer
has serious reason for complaint. The la
bility OF his co-surstY TO share the burden
OF loss by reason OF Davies default, has
been removed by this adjudication, aud
while such determination stands, appellant
would be unable 20 compel contribution
from his co-surety. which would not be the
case n one surety had been proceeded
against seVerally. There Is no showing
that the cass was dismissed as 70 Cornelius
without prejudice; indeed, the tendency OF
the record and rulings, 10 to show shat non-
suit in effect was entered ne 20 bic. because
she proof offered was insufficient 30 sup
port judgment against hun. GA thls Foint
alone Wo think the court erred. and there
fore the Judgment must be revel ssd aud
tbs Gauss rsmanded for new trial. Opiu-
ion By Justice HAYWOOD
Cher Justice Pemberton wrote the opin-
ion 10 the case Of the Penn Placer Mining
company 20 al, respondents. versus John
schieinsr ct al, appellants Appeal from |
Jefferson county. This case stood on
motion 20 strike from the record the state
ment on motion for new trlA. One |
ground was that this statement was not |
,eryad within the time prescribed by law or /
allowed BY court, lt was claimed that /
when the court extended the time 10 Dec. /
he period OF extension expired a. the close /
II Dee. 1. The supreme court thinks the /
} der contemplated Dec. ? as the close OF /
he period named. Another ground was that
be evidence IN the statement on motion /
or a new trial was not entirely reduced 10
form. The supreme court says
other records have offended more grew
,usly on that score than this one. and yst
rave been tolerated by this court. IL Is
he cases which should and those which
hould not be dismissed on this ground. IL
Z a ground on which tue cOuft should and
viii act on Its own motion. And when
dmonition 10 unheeded. and the abuse
z eosds Just indulgence extended to liti-
.auts, unaware OF she improper practice,
ntheT than 80 counsel, who are the real
blenders, We shall then Apply the pruning
.nife Of dismissal, TO sever from this ap-
RELATE Jurisdiction, such records as are un-
sieldly, eumb Gus and improper, engraft-
nsnts thereon. From our examination Of
his record vo do not consider 10 one which
hould be thus dealt with. The motion to
tIke ont the statement, in our opinion,
hould be Overruled. An Vrdsf will b. en-
cred accordingly
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