The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-03-28
STATE SUPREME COURT
Corporations Organized Prior to
July l, 1896.
THE OLD LAW APPLIES
Unless the Corporations Elect to Come
Under the Provisions Of the Code.
Advice Given by Notary Pub
lie Is Not Privileged.
Special Dispatch to the Standard.

special Dispatch to the Standard.
Helena, March Interpretations or
ganized in Montana prior to July 1,
1895, when the codes went into effect.
will be generally interested in an opin-
ion rendered by the supreme court To-
day The case was Edward VS.. the
Montana Central, an action for $3.50
damages for stock killed by the railroad,
and was appealed from the district
court of Lewis and Clarke county. The
lower court instructed the jury to find
for the plaintiff in the sum sued for.
The railroad company asked for new
trial, which was granted, and the
plaintiff appeals from the order. Plant
if sought to recover under sections $50
and 951 of the civil code, the first of
which makes 1t the duty Of the railroad
companies to fence their railroad lines
where they have a right to fence, while
the second lays it down that the killing
and injury shall be prima facie evidence
of negligence on the part of the COM
| pany.
The defendant company commended
| that it, as a corporation, was formed
| under the laws Of 1886 and was existing
|
went into effect, and it not having
elected to come under the
provisions Of the code, it was
not subject to the provisions of sec
tons $50 and 951. Justice Plgott, for
| the court, holds the position taken by
the defendant is correct and that unless
corporations existing before the codes
! took effect choose to continue their ex-
stence under the provisions Of the codes
| they must be governed by the laws in
| effect before they went into effect
TT may be undesirable or inconven-
| lent that corporations formed before
July /, 1896, should be governed by stat
| utes differing from those applicable to
| corporations of the same kind organized
thereafter; but any suggestion that
| such distinction is repugnant to the
constitution is without merit says the
court.
1t is held that the court properly
granted a new trial. having misdirected
the jury in the first instance. The de-
cision of the lower court is affirmed.
One other appeal was passed upon,
from the district court of Galiatin
county. The decision in this case is
of some interest to lawyers who may
be called to testify as to the duties
they have performed as notaries public,
the supreme court defining the differ
ence between such testimony and evil
dence as to information derived from
clients which is privileged. 1t appears
that Smith brought suit against Cald-
well, as sheriff of Gallatin county, to
recover damages for personal property
sold by the sheriff under an execution
! issued in a case entitled Black VS.. KEEL
ly, to which property he claimed to be
entitled. The lower court found in ia
vor of Smith and Caldwell appealed.
1t appeared on the trial that one Hor-
ace r. Kelly, rancher in the Gallatin
valley, sold to one Almich, his hired
man, growing crops on some of his
lands for $1,000 and took his note in
payment: this note. secured by chat
tel mortgage, he sold to plaintiff; Kelly
was indebted to one John H. Black,
who brought suit against Kelly to col
lect his debt. He secured Judgment
against his debtor for the sum of
81 1920 and costs, and 1t was under
the execution of this judgment that
Caldwell sold the property for which
smith sought to recover, claiming that
Almich's note, purchased from Kelly,
had been secured by chattel mort
gage on the property sold by the
sheriff.
Defendant Caldwell. in his defense,
attacks the transactions between KEEL
ly and Almich on the ground that 1t
was fraudulently entered into and that
Smith knew of their fraudulent design
when he purchased the note. On the
trial defendants counsel endeavored to
prove by one Stephenson, an attorney
and notary public, in Bozeman, that
Kelly and Almich had a conversation in
his office touching their fraudulent in
tent in making the note and cfattel
mortgage. The court refused to permit
Stephenson to testify on the ground
that it was q privileged communication
between attorney and client. All Steph-
enson did for Kelly was in the capacity
of a. notary public and not as an attor
ney. The supreme court holds that the
court erred in this ruling and that an
attorney must answer unless his
advice was sought professionally, and
that informa ton obtained as a notary
by a lawyer as a notary public, when
professional advice is not given or ask
ed, is not privileged. For this error
the case Is reversed.
The court dismissed the appeals in
the cases of Craig VS. Brown, Wiser VS..
Muth and First National bank VS.. Cas-
cade bank. Arguments were presented
to the court in the mandamus proceed
ngs commenced by the State Printing
company of Helena against the secre
tary of state to compel him to furnish
work for the state printing concerns
contract, B. P. Carpenter appearing
for the secretary of state and Colonel
ceiildsiS LII 'tie pidtiilht. 1ne Soult L.
served its judgment. AS announced in
the Standard, the governor and the
state treasurer recently vetoed 'tihe con-
tract made with the State Printing
company on the ground 1t was Illegal.
This prompted the secretary of state to
withhold the state work. The supreme
court is asked to review the matter
and furnish an Interpretation of con-
stitutional provision relating to the
matter at issue.