The Anaconda standard., 1895-04-16
SOME MORE DECISIONS
No Frauds Exist In Frederick T. Shsp-
herds Accounts.
CANCELLATION OF DEEDS
Opinion In the jefferson County
Assault case-Judament OF the
Lower Court Affirmed In the
Helena Supply Co. Case.

Special Dispatch to tho Standard
HELENA, April 15.-Following are recent
| supreme court decisions: Fora +. Shep-
herd. respondent. VS.. the First National
bank of Butte, appellant, opinions of
court by Associate Justice Dewitt. This
action is brought by Mrs. Shepherd for
the purpose Of removing a cloud upon the
title Of certain real estate belonging to
her. The First National hank Of Butte
brought n suit against the husband of
Mrs. Shepherd, Frederick II. Shepherd,
and levied an attachment upon her house
aud .ot, claiming that while the title was
in her name, the premises really belonged
to her husband. She then brought this
action to set aside the writ of attachment.
The question raised in the case was
whether the deed of the property being
made TO Mrs. Shepherd for he consider
alton paid by Mr.. Shepherd, was in fraud
OF the bank, which was creditor of
Frederick Shepherd. The district court
held that Frederick Shepherd had no in
terest in the property and gave judgment
| in favor of the plaintiff. This judgment
| Is by the supreme court affirmed. II APP
pears that Frederick Shepherd was in
debted TO the bank in the sum of 5000
and to his wife in the sum of $500 with a
large amount of interest. Shepherd had
| n credit with the bank on overdraft. He
further overdrew his account $4,000 to pay
for the house. He had the house decided
TO his wife. 1t was found by the lower
| court that the debt from Shepherd to his
wife was an honest one, and that he de-
livered to her the house and lot in full
| payment. IL 10 held that debtor has n
right to pay one creditor and not another,
| even IL that creditor Is his wife, provided
| there Is no fraud shown In making such
payment. The district court determined
| that there was no fraud in Shepherds ac-
counts. And the decision OF the supreme
| court refuses to disturb the discretion ex-
ercised by the lower court. Chief Justice
Pemberton and Associate Justice Hunt
| concur.
Daniel p. Cotter, plaintiff and appel
liant, vs.. Julia Cotter ct al. appeal from
Silver Bow county. Opinion by Chief jus
| tice Perlberton. This is an action for an
| accounting and for tho cancellation OF
certain deeds to real estate. The plaintiff
also asks for an injunction restraining
the defendants from. transferring or dis
posing OF certain property, and for the
appointment OF n receiver pendenteliite.
| Tue court issued temporary restraining
order. Julia Cotter. defendant, in her an
swer, denied all the allegations in the
complaint. The Laytons, the other
defendants, demurred to the COM
paint. Upon q hearing the court re-
fused to appoint n receiver aud dissolved
the temporary restraining order. and
from this the plaintiff appeals. The su-
preme court holds the order of the lower
court In refusing to appoint n receiver is
not appealable. In refusing to issue an
injunction the lower court made no error
4. hA tfFxr- naft -
junction Is a matter of discretion in the
court dependent upon the facts in the
case, the judgment Is affirmed.
State, plaintiff and respondent VS.. Roger
McCaffery defendant and appellant, APP
peal from jefferson county. The defend
ant appeals from n judgment entered
Oct. 16, 1898, adiudging him guilty of the
crime OF assault on j. Il. Smith aud sem
fencing him to pay fine of s. aud costs.
At the first trial the jury disagreed and on
the second the jury found him guilty. The
appeal Is based on certain technicalities.
one of which Is that because the sheriff
verified the original complaint before the
justice on information and belief the
whole proceeding before the magistrate
was a nullity. The supreme court holds
that the verification of the original COM
pla mt was not defective. The justice
making decision, holds there never was
any former jeopardy aud the district
court properly sustained the demurrer OF
the state.
Helena Steam Heating and Supply COM
pany, plaintiff and respondent, VS.. Laura
j. Wells OF nj. defendant and appellant;
appeal from Lewis aud Clarke county.
and opinion by Chief Justice Pemberton.
This is an action to foreclose a mechanics
lien. Special findings of the fact
were submitted, and made by the
jury and n general verdict for plain
tiff returned. The court adopted the
findings of the fact by the jury and rem
dered judgment in favor of the plaintiff
for the amount of the verdict, s532.77, and
for 500 attorneys fee, and costs. from
which judgment defendants appealed.
The appellant contends that under the
findings OF the jury the court erred in
rendering judgment. Ii Is contended
that only one item of material for which a
lien is claimed. amounting to "a cents,
was sold by the plaintiff within 45 days
before the filing of the notice of lien. and
that all the materials in suit were sold
and delivered by special contract and
that they did not constitute one continu-
ing contract. The supreme court holds
that the materials were furnished under
one contract. The appellant contends
that Judgment in any event should not
have been rendered as to an attorneys
fee for the reason ne alleges, the law Civ
ing the court power TO enter judgment for
attorneys fee as costs, IN cases like the
one at bar, is unconstitutional. ma
jority OF the court holds the law constitu-
tional, and the judgment OF the lower
court is therefore affirmed.
"