The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-06-07
HELD A BRIEF SESSION
The June Term of the State Su-
preme Court.
TWO APPEALS PASSED ON
Another Great Falls Opera House Case
Decided-The Court Says Plume
Is Mistaken in His
Remedy.
Special Dispatch to the Standard.


Helena, June 6.-The June term of the
supreme court began to-day. The court
held bref session, during which two
appeals were passed upon. after which
the court adjourned until tomorrow
morning, when the semi exam
ination of applicants for admission to
the bar of Montana will be held. The
court has prepared the questions itself
for this examination, not relying upon
a committee of lawyers to perform
that duty, as has been customary in
the past. The examination will prob
ably last two days. The applicants who
will tackle the examination are: P. H.
Burns, c. g. Dolman, II. w. Trask. S.
G. Whitehead, Butte; F. S. Gibson, Vir-
gnia City; G. w. MCGEE, Dupuyer; E.
S. Stanton, Bozeman, and J. r.
Schacht. Michigan.
One of the cases decided to-day was
entitled the Merchants National bank
of Great Falls. plaintiff, VS.. the Great
Falls Opera House company c. M.
Webster H. o. Chowen, E. Crutcher
and F. P. Atkinson, defendants and re-
spondents, and F. P. Atkinson, appel
liant, an appeal from an order of the
district court of Cascade county, direct
ing an execution to issue in favor Of
Webster, Chowen and Crutcher against
their co-defendant and co-surety, At
kinson. The case is very similar to the
son appealed from the lower court S
ruling in the case of the Northwestern
National bank VS.. Great Falls Opera
House ct al.
Both cases were heard at the same
time. and upon substantially the same
proof. The bank secured judgment
against the Opera House company for
the sum of s2,240.5O, with interest, in
December. 1892, All of the defendants
paid, with the exception of Atkinson.
who set up. as he did in the other case,
that he had been released by prior ar
rangement made at the time he, as a
banker, loaned money to the Opera
House company. AS in the other case,
the lower court, after hearing the evil
dence. ordered execution to issue
against Atkinson for $44S.50. or one-ffth
of the Judgment, with interest From
this order Atkinson appealed.
The supreme court, in an opinion by
the chief justice, discusses the several
assignments of error raised by Atkin-
son, and concludes that the order APP
| pealed from must be affirmed.
L
nounce in this case says the court
I'VE are not unmindful of the old dis
| tinctions between actions at law and in
J equity. Under the provisions of Oul
! statutes these distinctions have beer
abolished. and the court having juris-
diction of the parties. can accord such
relief as the facts of the case may JUS
| tify. An examination or the authorities
cited in the former part of this opinion
| will show that courts of equity readily
| granted such relief as is sought herein
and we see no reason why it should be
denied here, and the respondents driven
| to a separate action
| In an opinion by the whole court, the
motion of D. J. Plume is denied ant
his application dismissed in an orisina
proceeding instituted by him before the
supreme court for leave to prove before
a referee or by deposition the facts ir
relation to the statement of the case
on motion for a new trial in the case
of Plume VS.. the Great Northern rail
| road. This case came un for trial be
fore the district court of Flathead coun
ty in February, 1898. and resulted in E
non-suit. Plaintiff Plume. it appears
after his case was non-suited. filed ant
! served a notice of his intention to NOV,
! for a new trial. Subsequently h
served a draft of his proposed state
| ment of the case to which defendan
! proposed amendments. Inc plalnt1n OH
not accept the amendments, but deliv
cred the proposed statement an
amendments to the clerk Of the cour
for delivery to the judge. When tn
Judge came to consider them in May
1899, he refused to settle the statement
upon the ground that unreasonabl
time had elapsed since the statemen
was presented to the clerk Of the court
Plaintiff excepted, and applied to tn
supreme court for permission to prov
his contentious, by deposition or ref
cree. The supreme court says tina
Plume was mistaken in his remedy
"If the judge or court below abuse
his or it's discretion in making the or
der by which a settlement was re
fused" remarks the court, mandarin
will lie. or since the order was mad
after final Judgment. the remedy b
appeal from that order might parhap
be resorted to: it is we'll establishe
that mandamus. being speedy as we
as plain and adequate, is an efficier
remedy in this case"