The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-05-23
STATE SUPREME COURT
Three Opinions Were Handed
Down by the Bench.
A JUDGMENT SET ASIDE
In an Appeal From Deer Lodge County
in the Case OF Anna Collier VS.,
John Fitzpatrick-Excus-
able Neglect.
Special Dispatch to the Standard.

Special Dispatch to the Standard ..
Helena, May 22.-The supreme court
handed down threee opinions to-day
The court denied the motion made re-
Gently to reinstate the cases of Hos
kins VS.. Hubbard and Gibbons VS.. Hub
bard, appealed from Flathead county
and dismissed because the courts rules
had not been obeyed in preparation of
briefs. The stipulation of respective
counsel to advance on the calendar the
contested election case of Dowty VS..
Hittwood from Great Falls, was grant
ed.
One of the cases decided was appeal
ed from Deer Lodge county. 1t was
entitled Anna Collier VS.. John Fitz-
patrick, an appeal from an order of the
district court entered May "a, 1885, de-
nying Fitzpatrick's (appellanD motion
to vacate a judgment. 1t appears that
when the case came on for trial APP
pellant's attorney failed to put in an
appearance, The case was heard and
decided in plaintiffs favor. Defendants
attorney, Col T. O'Leary, who had
been unavoidably absent from Ana
conda when the case came on for trial.
on the day following the rendering of
the judgment, moved to set it aside
on the ground of excusable neglect.
This the court refused to do, and hence
the appeal. Colonel O'Leary's law part
ner was present at the time of the
calling of the civil calendar. but knew
nothing about Collier VS.. Fitzpatrick,
and had not been informed by the Sc
tOLeary) was an attorney in the case,
therefore did not call his attention to
IA 70 nf h1 he no ia
for May 49, A rule Of the district court
made it the duty of the clerk of the
| court to inform the different attor-
neys after cases had been set in which
they were interested. This had not
been done in this case. In consdera-
ton of all these circumstances the su-
preme court holds that the neglect of
defendants attorney in representing
his client when the case came on to
| be heard. was not SO gross as to be
| inexcusable, and that therefore the
| trial court should have granted the
motion to set AS aside the Judgment com
| planned of. The costs of all the pro-
| ceedings, however, are taxed to the
| appellant Opinion by Justice Pigott
In an opinion by Justice Hunt the
court affirmed the judgment of the dis
| trict court for Flathead county in the
case of c. f. Proctor VS.. William Irwin,
| an action for damages for the Illegal
detention of 1856 head Of. cattle. The
| lower court granted Proctor 5000 judg
ment The two other cases de-
| cided follow:
l. Morty A. Sullivan VS.. Carrie Schultz,
appeal from the district court of Sill
yer Bow county. The plaintiff had en-
tered into a contract with the defend
ant to furnish her 20 feet of cut gran
lite for the grave of the defendants
mother. The price to be paid was 1882.
The plaintiff sublet the contract to one
Theran for $3.50, he furnishing the
tools and experimenting the work
generally. The stone was taken from
the public domain. Defendant ascer-
tanned that Therian was doing the
work some $3.50 cheaper than sullivan.
She had paid to Therian on the con-
tract by order of plaintiff $50. She
asked Therian to put the stone in place,
and she would give him $3.50 for the
whole job, or $40 more than Sullivan
had agreed to pay him. Therian con-
sented and did as requested. Sullivan
| then made demand for the balance.
This was refused by defendant. where
upon Sullivan brought this suit to re-
cover the contract price for the stone,
The district court found for plaintiff
in the sum of $102. The defendant ap-
pealed. Chief Justice Brantly. writing
the opinion for the court, affirms the
lower court, holding that 'in all fair
ness Therian could not be permitted
to disregard his employers rights, and
thus, for his own profit, dispose of
| what as near as he was concerned and
according to every principle of right
and fair dealing, belonged to his en-
ployer. His act amounted to a con-
version Of his employers property.
Having obtained possession of the stone
| from Therian by collision with him.
| defendant stands upon no higher
ground, and therefore should be held
to abide by the terms of her contract
with the plaintiff" Judgment at
| firmed,