Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-09-16

James r. Boyce has renewed his sui
against the First National bank. He asks
Tor Judgment for s62. O0S. 40. The action
was brought July s. 1896, but on August
~ OF this year. just n days ago. the court,
at the request of the plaintiff, dismissed
1t without prejudice. Since then a new
complaint. in which virtually the same
allegations as those of the first complaint
are set forth, has been prepared and filed
in the district court.
AS stated by the Inter Mountain three
years ago Mr.. Boyce and Andrew J. Da-
Wis, ST., who died in 1891, owned the bust
ness then conducted under the name Of
James X. Boyce, Jr. & Co. Davis had
bought out the interest of one Sands.
who. prior to the Boyce-Davis utilization,
mad been a Of the firm. The pur-
chase price was $50, 900. While Boyce.
and Davis We're doing business the latter
attached the stock of goods on a nrom;s-
sorry note and closed Boyce out. The
store was located at the northwest cor:
ner OF Main street and Broadway. takine.
IN the apartments occupied by Hight &.
Fairfield n the Prahman Dry Goods
AS Davis virtually owned the
bank. the institution has been made de-
in the action to recover the
amount stated.
IN the suit of w. A. Clark & Bro.
against the Grand Opera House COMPANY
ana IT'S individual members to recover
Judgment for about $500, which suit was
tired a short time ago and resulted in
plaintiffs getting that for which they
asked, together with interest and expense
money enough to swell the total to about
$l4, 200, l.. O.. Evans has filed an affidavit
to offset the ffidav made a few davs
by John Mcguire in support of a
motion for a new trial in the case on the
ground Of newly discovered evidence. In
his affidavit Mr.. Mcguire stated that the
note executed by the officers of the com
pany and given M. j. Cornell did not
amount to as much as plaintiffs alleged.
being for only S2,610. IS.
The gist OF the Evans affidavit is as
follows:
Il. Q. Evans being duly sworn says:
This atfiant is informed n believes that
John Mcguire, one of the defendants in
this action, who has made affidavit Of al
legged newly discovered evidence. was.
during the years 1897 and 1899, claiming
to be and acting as president of the
Grand Opera House and as
such verified the original answer of the
defendants filed in the case January 10,
1898; that at the time the action was
commenced and ever since, Charles
ODonnel, attorney for the Grand Opera
House company and other defendants in
the cause, has claimed to be and has been
acting as an officer of the being
it's secretary as well as it's attorney in
the cause. hat at n sometime prior
to the trial O'Donnell asserted and con-
tended to attorneys for plaintiff that at
the time of the execution and delivery of
tnH nr0Jn1cCOrV nnfl tho v,-oc
only indebted to NJ. ]. Council in the sum
mentioned in the affidavit made by Mr..
Mcguire IN relation to alleged newly dis
covered evidence, towit, 49, l OBS, which
indebtedness arose from the payment of
taxes by Mr.. Connel on the property of
the company; that each and all parties to
and actors in the transaction relative to
the execution and delivery of the promis-
sorry note resided in and We're at and
about the city a great portion Of the time
intervening between the
ofthea action and trial, save w. r. Kenyon,
who in the fall of 1897 went to Syracuse,
N. Y, and has resided there since that
time; that Mr.. Kenyon's place Of resi-
dence has been know by many persons
in Butte and could have been ascertained
by any of the defendants.
'Affiant further says that when the
cause was called for trial in June. 1898.
the defendants asserted by affidavits that
they ueSlIeu W procure testimony from
w. r. Kenyon and could not safely go to
trial without it, n at the time procured
a continuance of the cause for the alleged
purpose of taking the depositions OF
Messrs. Kenyon and Connell, but defend
ants, having procured said continuance
the alleged purpose mentioned. never
took either of the dispositions, although
more thai a year elapsed between that
and the time of the trial"