The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1898-05-10
m THE SUPREME COURT
Three Opinions Were Handed
Down From the Bench.
RIGHT OF TRIAL BY JURY
No Court Has . Right 70 Pas Upon
Issues Of Participation BY Pigott
in Case OF Murray vs.. Ovistt,
Spratt and Haueer.

Helena. May 9.-The supreme court rem
dered three opinions to-day. The case Of
John Murray VS.. H Oviatt. +. d. spratt
and 8. T. Hauser. an appeal from the dis
trict court of Lewis and Clarke county,.
was an action for breach of contract. The
action was commenced in 1899. when the
of contract. entered into between the par
ties to the action, with Watt as principal
and Spratt and Hauser as sureties. Haus-
er was the only defendant who put in an
appearance when the case came up for
trial. He set up as a defense that he sign
ed the contract IN behalf Of the Murray
Placer Mining company. and not In his
individual capacity. The jury disagreed
and were discharged. Tn court then took
the case. and regardless of the fact that
the jury had disagreed. entered judgment
in favor of the defendant Hauser. Upon
the appeal of Murray this matter of the
courts action was strongly commented
upon as unheard of in practice and the
question to be decided was whether the
court had the right to pass upon the case
after the jury had failed to agree. JUS
tice PiGott. in an opinion Of some inter-
est to attorneys who have perhaps never
seen the question raised. holds that this
cannot be done. 1.-THE court may not sub
stitute itself in place of a jury and pass
upon the effect OF evidence, which. be-
cause of a mistrial, is no longer before IT,"
The right of trial by jury is guaranteed
to ali, and unless such trial is waived, no
court has a right to pass upon issues of
fact. The judgment of the lower court
was reversed and a new trial ordered.
William Beck VS.. w. Y. Fransham ct
al, was an appeal from the district court
of Gallatin county. The action was COM
menced before Judge Armstrong for an
Injunction to restrain Sheriff Fransham OF
Gallatin county from selling certain prop
cry belonging to Beck on an execution Is
sued by Judge Henry in the case of Beck
VS.. O'Connor. The court issued a tempo
rary order. but dissolved II because the
plaintiff failed TO furnish the required
bond in the sum of $500. Plaintiff appealed.
The order dissolvins the temporary in
junction is affirmed by Justice Hunt for
the court on two grounds First. that
Beck had a remedy at law by appealing
from the judgment i'm Beck VS.. OConnor.
which he tried to do but failed by reason
of not furnishing the requisite appeal
bond in time; and second, because Judge
Armstrong was without power to interfere
with a judgment of another court OF con-
: current jurisdiction.
The other opinion rendered was i'm the
case of william Beck VS.. William O'Con-
= nor and Walter Cooper. This action was
originally brought i'm the district court
of Gallatin county and then taken to the
district court of Carbon county. 1t was
commenced for the purpose Of recovering
the sum of 81, 80 claimed to be due as
the balance of the purchase price for an
interest i'm a certain mining claim situated
in Silver Bow county. Judge Henry found
for defendants i'm the sum of 5000 claim
ed by them as the money paid for the in
terest upon the condition that the title
thereto was free from all membranes
The title having failed, they refused to
nav the balance and asked for the return
of the money paid down. Plaintiff appeal
ed. The supreme court, through Chief
Justice Pemberton. after administering a
mild roast to counsel for the way In
which the brief and transcript had beer
prepared, afirms the lower court In an
opinion which. stripped of technicaities
holds that one selling property, guaran-
teeing a clear title, cannot prevail
against the buyers Of such property who
refuse to pay the balance of the purchase
price until the title has been cleared, and
that they can recover the money paid un-
less a clear title is furnished. Judgmen'
affirmed.
The supreme court has appointed E. Z
Day. f. T.. Stranahan and Milton 8. Gunr
a committee to conduct the regular June
examination Of applicants for admission
to practice in the state of. Montana The
committee will meet at an early date an
prepare the set of questions to be asked
the candidates, then report to the court
when a day will be set for the examina'
| tion