The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-05-19
A new TRIAL GRANTED
In the Carr, Ryder & Adams Co.
We. Closer & Davidson Case.
JUDGE NAPTON'S OPINION
It Was Handed Down Yesterday Morn
ing in the District Court : The
Case Was Formerly Tried
Before Judge Brantly.

Judge Napton handed down an impor-
tant decision yesterday morning in the
case of Carr, Ryder & Adams company
vs.. Floyd Closer and T. c. Davidson.
This suit was brought to foreclose me-
chanic's lien and was tried before Judge
Brantly without jury and a verdict rem
dered in favor Of the defendant The
plaintiffs filed a motion with Judge Nap
ton for a new trial, which was granted,
the judges decision being as follows:
This cause came on to be heard before
the court on motion for a new trial. 1t
without jury. His findings were in IA
vor of the plaintiffs, and a decree was en-
tered in accordance with the findings. The
statement on motion for new trial was
in accordance with the findings. The OBJ
lection urged by counsel for plaintiffs is
that the court has no jurisdiction of the
cause for the reason there 8 nothing in
the statement to show there was either a
motion for a new trial filed or a notice
thereof served In other words, both of
these should be incorporated in the state
ment
''The statute does not specify what is to
be put into the statement on motion for a
new trial, but contemplates that the NOV
ing party will embody in his statement
the errors only upon which he bases his
motion for a new trial. The statement
made by him may be amended by the
moving party. If no notice of intention
was served or FLEA in time, then the OPP
posing party has a right to have the
statement show these facts The notice
of intention and the stipulation extend
ing the time in which the statement was
to be made and filed are neither contained
in the statement, ana it will be presumed
that these steps were regular, in accord
ance with the statutes. The record in
this case shows that these proceedings
were regularly taken in accordance with
the statutes, and this objection is untena-
BILE.
From the finding it appears that the
account due to Carr, Ryder, Engler COM
pany passed by assignment or otherwise
from that corporation to plaintiffs on or
about the 31st of December, 1885, that af-
forwards, to-wit. on the 25th day of Janu-
airy, 1897, the lien was filed in the office of
the county clerk by the first mentioned
corporation. The plaintiffs I'D not there
by acquire any right to lien upon these
promises, and new trial should be grant
ed upon these grounds.
at appears from an examination of the
evidence in this case that the Carr, Ryder.
Engler company gave credit to Floyd
Closer alone, because they kept no ac-
count, and required Closer to keep no ac-
count, of money received from Davidson
and forwarded by him to them. They
ought not now to be allowed to change
their position to the injury of the defend
ant. 1t was incumbent upon them to keep
these accounts separate. Tne lien, under
our present statutes, is given to sub-con-
tractors in the second degree at lease.
GIG Mont, p. s4S9..s &s - y II y
"Although the clause which the supreme
court seems to consider important and
which was inserted in the compiled stat
utes, and is as follows: All persons fur
nishing things, or doing work. as pro-
vided for by this chapter shall be con-
sidered sub-contractors, except such as
have therefor contracts directly with the
owner or proprietor his agent of trus-
tee has been omitted from our present
statute, the first section obviously in
cludes sub-contractors in the second de-
gree under the construction placed upon
it by our supreme court. The policy of
the law is, of course, thing exclusively
in the prerogative of the legislature.
Much of the evidence in this case was
by dispositions. and in passing upon this
motion, assume the truthfulness Of the
testimony of all the witnesses.
Motion for new trial granted.
"WELLING NAPTON. Judge"