The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-12-04
An IMPORTANT RULING
A Decision Rendered In the Cor.
ue-Washos Case.
THE DEMURRER SUSTAINED


Judge Lindsay yesterday made an
important ruling in passing or q de-
murrer In the case of Ellen s. Cornue
against the wsshoe company. the suit
to recover possession Of the Pacific mine
and set aside the deed in the purchase
of the property from the Davis estate
for $4,000. The court. sustained the
demurrer OF the defendant company,
which goes to the foundation and merit
OF the case.
Mrs. Cornue. who is one of the Davis
heirs. claims to be entitled to q 5-154th
interest in q 17-32nd In the mining prop
erty. brought the suit in her own name.
but in behalf of all the other heirs the
complaint was demurred TO IN the
ground that two causes OF action-a le-
gal n equitable cause-had been i'm
properly Joined; the other heirs of the
estate should have been made parties
to the action. The case was argued at
great length about six weeks ago. w.
w. Dixon and William Seallon repre-
eenting the Washoe company, n
Judge Bach Of Helena appearing for
Mrs. Cornue. Elaborate briefs were
submitted by both sides. and the court,
In deciding the matter, made an equally
comprehensive and elaborate decision.
which construes the statutes as to
whether legal and equitable actions
could be Joined In the same suit. n
deciding also that the other heirs Of the
avis estate must be made parties
plaintiff.
The opinion and order of the court
sustaining the demurrer is in full as
follows:
Two separate causes of action are set
up in the plaintiffs complaint. In the
first nanGn nf nnftnn ntntnffh nllRO1S
that on Feb. s. 1898. plaintiff was, and
ever since has been seized and pos
sessed and entitled to the possession OF
an undivided five o~ne-hundred fifty
fourths (5-15f of seventeen thirty-sec-
onds G7-32) of certain real estate, to-
wit: The Pacific lode mining claim,
situated in Silver Bow county, Mon
n and that, on said date. while
plaintiff was so seized n pos
sessed and entitled to the possession
thereof. defendant entered and ousted
and elected plaintiff from said prem
Uses. and ever since withhoids posses
sion thereof. and thereupon plaintiff
demands judgment against defendant
for the recover of the possession OF
said premises.
This cause of action is one in the ma
ture of ejectment. Plaintiff apparent
ly sues for herself alone.
In the complaint there is a separate
statement of another cause of action,
wherein plaintiff alleges seizure and
possession and title to possession on
said Feb. s. 1898. of said premises; that
on hat date Henry A. Root and is
other persons were and ever since have
been tenants I'm common: plaintiff and
said other persons named are owners
in fee simple and entitled to the pos
session of said premises; that by e
son of the number" of said tenants in
common. plaintiff has not made them
naFtiQQ IN this apfiOp htIt CIlaQ for
their benefit as well al her own.
Continuing. the complaint, In the
statement OF the second cause, sets
forth that on March IL. 1890. Andrew
j. Davis died seized and possessed and
entitled to the possession of the same
premises and left the same as a part
of his estate. to his administrators,
heirs and successors; that thereafter a
special administrator Of said estate
was appointed by this court and quail
flied. and while acting as such special
administrator, such proceedings were
had through petition. order Of sale. and
sale. etc, as that said real estate was
sold and conveyed by said administra-
tor for a consideration of $50, 900 and
that by mesne c~onveyances the said
property has been conveyed to de-
PENDANT, who is now in possession
thereof as against the plaintiff and
said other tenants in common; that
thereafter. on April s, 1896, an admins
traitor. with the will annexed. of said
decedent was appointed n qualified.
and has ever since been acting as such;
that on or about February, =, 1895, by
order OF said court duly made and en-
tered, plaintiff and said other tenants
in common became vested with title to
said premises, and were entitled to the
possession thereof: that neither plant
IN, nor any of sal a in common,
nor any of their predecessors in inter-
est, have received any part or portion
Of said $50. 900 paid by the purchaser
of said real estate: hat each and all
proceedings whereby the said real es-
tate was so sold by the special admin
istrator of said estate. and all orders
of said court in regard thereto, were
null and void: that defendant has since