The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-08-02
IN THE SUPREME COURT
A Case Which Looks Like a Man
Suing Himself.
WILSON VERSUS HARRIS
Chief Justice Pemberton and Justice
Pigott Afirm the Decision OF the
Lower C~ourt-Judge Hunt Gives
a Dissenting Opinion.


Special Dispatch to the Standard.
Helena, Aug. 1.-The supreme court
to-day passed upon a case in which, to
the average layman, 1t would appear
that the plaintiff was in the attitude
of suing himself. The case is entitled
j. L. Crowder VS.. Edward Mcdonnell,
John Mcdonnell ct al. an appeal from
the district court of Fergus county. 1t
was instituted to collect alleged DAM
ages to the plaintiffs crops by the
water of an ~irrigating ditch that ran
through his land and was owned by the
defendants. In a certain sense Crowder
was also an owner in the ditch. 1t APP
pears that the plaintiff purchased the
ranch from a man by the name of
Mills. Mills had previously entered
into a contract with the defendants, by
the terms of which they were permitted
to run a ditch through his land, they
agreeing to furnish him with go inches
of water for irrigating and he to per-
form o~ne-seventh of the work of con-
structing the ditch, but to be relieved
of the repair work. A year or so after
acquiring the land from Mills, Crowder,
who. in making the purchase, of course,
acquired Mills interest in the ditch,
commenced the suit for damages,
claiming that the ditch had been neg
ligently constructed n not kept in
roper repair, resulting in destruction
of his property by reason of the water
flowing owe his land. Judge Du Bose,
in the lower court. granted the defend
ants a n%on-suit. holding. in substance,
that Crowder being a co-tenant in the
ditch, could not sue any of his CO.
tenants.
In an opinion by Justice Hunt, the
supreme court reverses the lower court
and sends the case back for a new trial,
not upon the question of ~co-tenancy,
but OF the point raised by the plain
tiff that the ditch had not been prop
erly repaired. The court holds that
the question of repairs was expressly
excepted from the contract entered INTO
between Mills and the defendants, and
that by reason of this exception the de-
PENDANTS would be liable, If on another
trial negligence in the matter of repair
ing the ditch could be established.
The supreme court rendered one other
decision to-day. 1t was in the ease of
Milton H. Wilson eft al. VS.. b. Harris
ct al, an action that has been before
the supreme court three different times,
and is the outgrowth of q famous Hell
ena failure. The court divided in it's
conclusions, Justice Pigott and Chief
Justice Pemberton concurring and JUS
tice Hunt dissenting.
This suit was brought by the plain
tiffs in the district court of Lewis and
Clarke county, some time in 1892, the
late Judge Buck presiding, to set aside
an assignment for the benefit of credi-
tors made by Bathsheba Harris to
Moses Morris in the latter part of 1891.
Plaintiffs sought to have the assign
ment set aside on the ground of fraud,
which 1t was alleged was committed in
the transaction. The district court
found for plaintiffs to the effect that
certain debts claimed by relatives of
B.. Harris to be owing them from her
were of a fictitious nature, that boxes
of goods had been removed from the
cellar of the store in which b. Harris
conducted her clothing business on
Main street to the cellar in her house
on Ewing street, and that the transact
ton had between II. L. Frank of the
assignee, whereby the former became
the purchaser of the stock of goods
assigned, was not bona fide purchase,
but made in the interest of b.. Harris
in short that the whole transaction
from beginning to end was one web of
fraud and deception. The defendants
appealed, and the case has been argued
and reargued several times. The first
decision a in the case was one of
~affirmance, in December, 1896, just prior
to Justice De Wits retirement from
the bench; Justice Hunt took no part
in this decision, and Chief Justice Penn
berton not being able to agree with
Judge lie Will, the case was d1I1TIneu.
The then asked for a re-
hearing; this was granted: then JUS
tice Buck died, and all parties desiring
a full bench to hear the case, it was
~reargued, and this opinion is the final
settlement (for the presently of his
much argued case. The opinion is n
of the longest ever written by the
court, covering some 80 pages of type
written matter.
Justice Pigott. Chief Justice Pember-
ton concurring, holds to the effect that
personal property capable of manual
delivery can be attached only by an ac-
tual seizure by the sheriff under the
writ lin this case a service of a writ of
attachment was simply made oil the
assignee); that an order made in a
proceeding supplemental of execution
authorizing an execution creditor to
commence an action to recover property
capable of manual delivery, or of an in
terest' therein, in the possession of
third persons claimed by them under an
assignment thereof, good as between
the parties to it, but void as to credit
ors, imposes no lien upon such proper
ty, and that such an order is not a
prerequisite to the bringing of an action
appropriate to the relief sought to be
obtained by the CREDITOR; and that the
order made in a supplemental proceed
ing authorizing the institution of an ac-
tion by the creditor to reach the prop
erty does not charge the property ca
pable of manual delivery with a lien,
without which lien a creditors bill for
the purpose of removing an obstruction
standing In the way of an execution
cannot be maintained. The next point
decided is that before a creditor will be
permitted TO maintain a suit the object
of which is to clear away an obstruction
from the path of an execution, he must
nave first acquired some specific lien
upon an interest in or trust concerning
the property which Ne seeks TO reach
by the execution. The point that the
complaint was defective because of an
omission to charge the insolvency of the
a~ssignor is disposed of by holding that
the answer in this case to the complaint
supplied the omission and cured the de-
feet.
The evidence. which appellants con-