The Billings gazette. [volume] (Billings, Mont.) 1896-1919, 1903-09-18

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face of it showed that the writ was
directed to Sidney F. Morse, and did
not show that it was issued to Hanna,
Harris or any of the others.
Another ground was that not elDlgl
facts had been stated in the first
place in the petition for the writ, and
that the affidavit failed to show that
a return on the writ had been made
by the sheriff and that it also failed
to show that the writ had not been
discharged.
Mr.. Goddard then proceeded to ar
que the motion. He maintained that
it must be shown conclusively that the
writ had been served upon Morse be.
fore he could be held guilty of con.
| tempt. 1t might be held by the op-
posing counsel that Morse knew the
writ had been issued and he should
have made inquiry concerning it, but
this was consideration hardly worthy.
of entertainment. In support of his
contention he read from the statutes
, and different reports. Admitting that
service may be made by posting when
1T is found impossible to find the Off
Ger to whom writ is directed, he held
that it must be shown that diligent
search had been made before such
service by posting would be valid He
reiterated the statement in his motion
that the allegation in the Hathhorn
affidavit that "after due search and
inquiry" Sidney F. Morse could not
be found, was conclusion OF law, in
stead of statement of facts, and also
that the same view was applicable as
to the allegation that Robert T. Hanna
claimed to be in charge of the Jail in
which Snyder was confined
'@The law holds" he said, ''that the
other side must exhaust all efforts to
find the officer to whom the writ is
issued before they can make service
by posting copies IL is not enough
,, to allege on information and belief
that he could not be found. It is not
shown that Sidney F. Morse could not
be found in Yellowstone county, con-
sequently posting of copies of the writ
was not legal, and insufficient" On
the contrary, he declared, it was adj
mitted in the affidavit that he was in
Billings at the time, while it was not
asserted that he had concealed him
self to avoid service neither was it al
legged he saw the posted copies OF the
writ, or that he knew of it's existence.
For this and the other reasons given,
1T was held that the defendant, Sidney
F. Morse, was not guilty of contempt
AS regards the other defendants, Mr..
Goddard held that their names did not
appear in the affidavit, except toward
the end, where it was asserted that
they had entered into a conspiracy.
This was mere conclusion, and not
statement Of fact. Again, all the alle-
cations made were on information and
belief and were not made as facts
known to the affiant. Morse alone ex-
cepted, the charges against the defen-
dants were insinuations and not
statement of facts known to have ex-
istence.
In conclusion Mr.. Goddard said he
had not prepared answers, wishing the
court first to pass upon the motion to
vacate the citation. In case it was de-
MED it would be necessary to file a
separate answer for each OF the de-
PENDANTS and he had not had time to
prepare them.
;. Mr.. Cooper's Argument. :.
In reply to Mr.. Goddard, Mr.. Cooper,
for the affiant, said that Defendant
Morse and all the others named were
charged with having had knowledge
of the issuance OF the writ, and that
in spite of such knowledge had con-
spired to get the subject matter OF
the writ beyond the jurisdiction of the
court. They had worked to circum-
vent the order of the court and there
fore were guilty of contempt, by their
acts having defeated the courts order.
His side he said, had evidence that all |
the parties named in the citation knew
that the writ had been issued. Com
plant was not made against Mr..
Morse that he did not produce the
body OF Carey P. Snyder, but for con-
spring to make impossible service OF
the writ They held that the service
made was regular and in compliance
with the law, because Morse could not
be found, notwithstanding the sheriff
had made due effort to find him and in