The Anaconda standard., 1899-06-06
STATE SUPREME COURT
Two Decisions From Cascade
Were Affirmed.
MARCH TERM is ENDED
Great Falls Opera House Case Decided
Against Appellant -- New Trial
Granted in Granite
County Case.
Special Dispatch to the Standard.

Special Dispatch to the Standard.
Helena, June 1.-THE March term of
the supreme court ended to-day. The
June term will commence tomorrow,
and the court will meet for a few min
utes at noon to formally begin the new
term. Four appeals We're decided to-
day, all being affirmed. In per curiam
the court affirmed the district court of
Cascade county in the case of P. B.
Gallagher and Robert Vaughn, plaintiffs
and respondents, vs. J. w. Cornelius,
Minnie Cornelius and Morgan Cornell
ius (intervenor), defendants and re-
iSpondents. This was an action brought
ITO foreclose a mortgage upon certain
real and personal property belonging
to Cornelius that he had executed to
secure Gallagher and Vaughn as his
sureties upon a bond given for faith
ful performance of certain public work
for the city of Great Falls, more par
ticularly the construction Of the Sixth
street sewer. The bOndSmen had to
complete the work and they sued to re-
cover the difference between the con-
tract price and the cost of the work,
amounting to $6,346 l6. The property
upon which they sought to foreclose
pleasure boat plying on Broadwater
bay, and a horse named Montana
Sneak. Morgan Cornelius claimed to
own both the animal and boat. Tes-
tinony in the proceedings was taken
by a referee who found for the plain
riffs. The defendant moved for a new
trial and being denied the same, ap
,- pealed to the supreme court. The court
says that it must dismiss the appeal
for the reason that notice of appeal
was not filed and served until more
than a year after the judgment was
entered, which is not in conformity
with the codes.
Another case appealed from Cascade
county was the Northwestern National
bank, plaintiff and respondent, VS.. the
Great Falls Opera House company, c.
M. Webster, ]. Bookwalter, H. o.
Chowen, F. P. Atkinson, Ira Myers
and Ernest Crtucher, defendants; F.
P. Atkinson, appellant. An appeal from
the order of the lower court directing
execution to issue in favor of Webster.
.Crutcher, Chowen and Myers against
F. p. Atkinson ct ais defendant and
co-surety The bank, it seems, secured
judgment against the Great Falls
Opera House company as principal and
the defendants named as Sureties, for
the sum of 81, 701. so. All paid their pro-
portion of the Judgment with the ex-
ception of Bookwalter. who was out of
j
kinson. Atkinson claimed that he had
subsequently loaned the Opera House
company sum of money that it might
pay off it's outstanding Indebtedness,
and that at the time he made the loan
j it was understood that they would re-
lease him from all liability and never
hold him accountable, therefore he also
pleaded the statutes of limitation. The
lower court, however, decided against
Atkinson, and as stated he appealed
Chief Justice Brantly,a in an extensive
opinion discusses the numerous tech
nical points raised and concludes by af-
firming the judgment of the lower
court
The other two cases decided were
James Patten VS.. Joseph A. Hyde, ar
appeal from an order of the district
court of Granite county, granting a
new trial to defendant, Joseph A. Hyde.
The complaint in the action alleged
that on April 4, 1898, the plaintiff and
TWO others bought from the defendant
certain banking interests for So, ,250
paying S2,250 in cash and giving a note
for the balance; that on July 2S 1894
it was mutually agreed between the
parties that the contract of sale should
be rescinded and that Hyde should re-
turn to each of the three purchasing
parties his share of the $2.250 paid or
the price stipulated. and that defend.
ant has refused to carry out this agree
Hyde denied any agreement concern
ing the return of any part of the 50, $50
The trial resulted in a verdict in favor
of plaintiff. Defendants motion for 8
new trial was granted, hence the ap-
peal. One of the grounds upon which
the trial court granted new trial was
that the evidence was insufficient tt
justify the verdict The supreme cour
in a per curiam opinion holds that it il
a well settled doctrine that if judge
before whom case is tried, is salts
fled that a verdict is not warran tee
by the evidence he should set it aside
upon proper motion. and on eXamna
tion of the record, disclosing no goot
reason why this rule should not be OBJ
served, the order is affirmed.
The state of Montana eX rel Kaise
Water company VS.. the city of Phil
ipsburg, an appeal from a judgment o,
the district court of Granite county
granting to the plaintiff water com
pany a writ of mandate requiring th
city to pay certain water bills. In Jan
uary, 1888 the city of Philipsburs
granted franchise to the Kaiser Wa
ter company to supply it and its inhab
itants with water for ten years, con
tracting at the same time for Is fire
hydrants at a yearly rental of S112.5 &
per hydrant and reserving to itself tn
right thereafter at any time to tax
any additional number of hydrants i
might see fit to call for at a yearl,
rental of 500 each. In August lS9;
the city ordered four more hydrant
put in. The bills for these additiona
hydrants were regularly paid until OC
tober, 1897, whey they were rejected