Hore and others. From a judgment in favor tend that it is insufficient in that it fails to of plaintiff, defendant Elizabeth C. Meyer state that any tender had been made to apappeals. Remanded. pellant of the amount due her on her prior Maury & Hogevoll, for appellant. W. D. mortgage. It is entirely immaterial that Kyle, for respondent. plaintiff's lien had its inception in services rendered in an action by Ilore against Meyer HOLLOWAY, J. M. , M. r. Gilchrist com (formerly Whitney) to have a certain instrumenced this action against Jeremiah Hore ment, on its face a deed, declared to be a to foreclose an attorney's lien upon lot 10, mortgage. An attorney's lien is given by block 6, Barnard's addition to Butte, and statute. Code Civ. Proc. § 430. Gilchrist made Elizabeth C. Meyer a party defendant, was not in any sense a successor in interest alleging in his complaint that she had or of Ilore. Ile merely acquired a lien upon claimed some interest in the property. The Hore's property upon which Meyer had a defendant Hore defaulted. The defendant prior mortgage lien. The situation was not Meyer filed a demurrer, which was overruled. different at all from what it would have She then answered, admitting the allegations been had Hore given Gilchrist a second mortof the complaint, and affirmatively set forth gage upon the property to secure the payınent of that she had a mortgage upon the property his attorney's fee. In commencing an sought to be sold, for $1,785.13 and $316 ac action to foreclose such a second mortgage, crued interest; that she had paid out for tax it could hardly be contended that Gilchrist es and repairs upon the property $317.80; would have been compelled to pay or tender that $250 was a reasonable attorney's fee payment of the amount of the first mortgage to be allowed her in foreclosing her mort as a condition precedent to foreclosing his gage, and that the lien of her mortgage was second mortgage. There is not anything in this contention. prior and superior to any claim of the plaintiff. She asked that her mortgage be fore 2. In his reply the plaintiff alleged that closed. The plaintiff filed a reply in which the defendant Meyer had received $1,000 in he disputed some of the items claimed by rents from the property from October 20, her. He further alleged that defendant Mey 1.903, to July 28, 1905. When the defendant er had received rents and profits from the Meyer offered evidence tending to show that property amounting to $1,000, and bad bad she had received only about $1.30, objection the use of certain portions of the property was made by plaintiff that, by failure to reply herself, and that such use was reasonably to his reply, defendant Meyer had admitted worth $400. The reply admits that the lien that she had received the sum of $1,000 as of the defendant Meyer is prior and superior alleged in the reply. The court admitted the to the lien of plaintiff. The cause was tried evidence subject to the objection, with the to the court without a jury. The court found statement that, if it decided that a reply on that the defendant Meyer had been in pos the part of the defendant Meyer was necessession of the property in controversy from sary, the evidence offered by her would not be October 20, 1903, to July 28, 1905, and that considered. There is not anything in the during that time she had received in rents record in terms which discloses what the from the property $1,000. The court found court's final ruling upon the matter was, but that the balance due her, including attorney's from the fact that the court found that defee for foreclosing her mortgage. was $1, fendant Meyer had received in rents the 616.06. A decree was rendered and entered, full sum of $1,000 as alleged in plaintiff's adjudging defendant Meyer's lien superior reply—a finding not supported by the evito plaintiff's, directing the sale of the prop dence at all-it becomes apparent that in fact the court did hold that the allegation in erty, and the proper application of the proceeds. From this decree, the defendant plaintiff's reply was admitted, and that the Meyer appealed. The evidence is presented evidence tending to show the exact amount in a bill of exceptions. received had been excluded from final conThe errors specified are (1) that the court sideration. The position of plaintiff in the erred in excluding from consideration all trial court was that the pleading by which testimony offerell tending to show the defendant Meyer set forth her claim for the amount defendant Meyer had actually re foreclosure of her mortgage was in fact a ceived in rents from the property from Octo cross-complaint, and that plaintiff's pleading her 20, 1903, to July 28, 1905; (2) the court putting in issue certain allegations therein erred in rendering a decrce in favor of the and setting up affirmative matter was in fact plaintiff, for the reason that the complaint an answer which required from the defenddoes not state facts sufficient to constitute ant Meyer a reply, or, in the absence of such a cause of action. The third and fourth a reply, the affirmative allegations were adspecification each raises the same question mitted. But this position is not maintainas the first, and the fifth the same as the able at all. "The Code establishes the law second. of this state respecting the subjects to which 1. Does the coinplaint state a cause of it relates.” Code Civ. Proc. § 3453. Section tion? The complaint is in the usual form in 661 of the same Code provides: “The forins foreclosure. But counsel for appellant con- of pleading in civil actions, and the rulers amount of rents received by her from the property, but must have held that the allegation in plaintff's reply—that the amount was $1,000—was admitted. In this the court erred. The cause is remanded to the district court, with directions to hear proof and determine the amount of rents received by the defendant Meyer from the property, and to make such modification in the decree as inay be justified by the finding upon the matter so considered. Remanded. BRANTLY, C. J., and MILBURN, J., concur. by which the sufficiency of the pleadings are to be determined, are those prescribed in this Code." Section 662 provides: "The only pleadings allowed on the part of the plaintiff are: (1) The complaint. (2) The demurrer to the answer. (3) The reply to defendant's answer. And on the part of the defendant: (1) The demurrer to the complaint. (2) The answer. (3) The demurrer to reply." The only pleading of facts on the part of the defendani, then, is the answer, and this is so irrespective of whether the action is one at law or in equity, for there is now but one form of civil action known to our law. Section 460. The answer may consist of (1) denials, and (2) statements of new matter. The new matter may constitute a defense or a counterclaim. Section 690. When a cause is tried, judgment may be given which determines the ultimate rights of the parties on each side as between themselves. Section 1001. And this being so, and an answer being the only pleading of facts permitted on the part of a defendant, it must be apparent that a cross-bill or cross-complaint is not known to our practice, but that an answer under our Code affords a defendant every opportunity for relief which a cross-bill or cross-complaint could have secured to him. No matter, then, what form the answer assumes, it is nevertheless an answer, and the only pleading of facts on the part of the plaintiff thereafter is a reply. In such reply the plaintiff may allege any new matter, not inconsistent with the complaint, constituting a defense to the counterclaim or new matter in the answer. Chapter 5, p. 8, Laws of 1903. But every allegation of new matter in a reply is deemed denied. Code Civ. Proc. $ 754. And in this case, no matter what the defendant Meyer may have called that portion of her pleading in which she sought foreclosure of her mortgage, it was in fact a part of her answer, and the pleading of facts thereafter filed by the plaintiff, no matter by what term designated, was in fact a reply, and every allegation of new matter in it was deemed denied. It was the last pleading of facts authorized by our Code. These conclusions appear plain upon principle from the language of the Code itself. They do, howerer, find support in the decisions of other courts treating similar Code provisons. Kollock v. Kaiser, 98 Wis. 104, 73 N. W. 776; Hughes v. Durein, 3 Kan. App. 63, 44 Pac. 434. Counsel for respondent refers to section 981 of the Code of Civil Procedure, and suggests that it mar modify section 662 above. But the provisions of section 981 are by express terms applicable only to title 7 of that Code, and that title has to do with provisional remedies in civil actions and not qestions of pleading, which are controlled by title 6 of the same Code. It is apparent from finding No. 5 that the trial court refused to consider the evidence offered by the defendant Meyer to show the (34 Mont. 448) STATE ex rel. BRAY V. SETTLES. County Treasurer. (Supreme Court of Montana. Oct. 29, 1906.) 1. INTOXICATING LIQUORS-LICENSES-NECESSITY OF OBTAINING LICENSE. Laws 1905, p. 154, c. 71, requires retail liquor dealers to obtain a license from the county treasurer, but provides that he shall not issue a license until directed so to də by the board of county commissioners on a petition signed hy a specified number of freeholders residing in the city, etc., in which any person, seeking such a license, “intends to engage in business." Code Civ. Proc. § 3135, provides that in the construction of a statute the intention of the Legislature is to be pursued if possible, that when general and particular provisions are inconsistent the latter is paramount, and that a particular intent controls a general one inconsistent therewith. Hld, that one engaged in the liquor business, under a license, on the expiration thereof is not entitled to receive another license from the treasurer until there has been a petition to the county commissioners and favorable action thereon by them. 2. SAME-STATUTES-VALIDITY. The statute is not obnoxious to constitutional principles on the ground that it grants to the board of county commissioners authority to act capriciously. [Ed. Note.--For cases in point, see vol. 29. Cent. Dig. Intoxicating Liquors, $$ 17, 18.] Appeal from District Court, Lewis and Clarke County; J. M. Clements, Judge. Vandamus by the state, on relation of M. H. Bray, to compel W. M. G. Settles, as county treasurer of Lewis and Clarke county, to issue a liquor license to relator. From a judgment dismissing the proceedings, relator appeals. Affirmed. . C. B. Nolan, for appellant. Albert J. Galen, Atty. Gen., and W. H. Poorman, Asst. Atty. Gen., for respondent. BRANTLY, C. J. Mandamus. On or before September 9, 1903, the appellant (relator) "filed and presented to the board of county commissioners" of Lewis and Clarke county a petition signed by 20 freeholders residing in the village of Wolf Creek in said county, asking that a license be issued to him permitting him to carry on the business of a retail liquor dealer at Wolf Creek for six months, said village having a populatiou vi less than 100. After considering the petition, precludes the idea that after a license has the board ordered the county treasurer to is- once been issued, an applicant for another lisue the license, and that officer did so under cense at the expiration of the term for which date of September 9, 1903, upon payment of he has already been licensed, shall again ap$165, this sum being fixed by the statute ply to the board for an order. It is mani(chapter 82, p. 174, Laws of 1905, § 1) as fest, however, from reading the act, that it the amount to be paid semiannually for such was the intention of the Legislature to prolicense. On March 9, 1905, the day the li- hibit specially the sale of intoxicating liquors cense expired, the relator tendered $165 to in the class of communities mentioned in all the county treasurer, and demanded a license cases, except where the people residing in to be issued to him to carry on the same busi- them should give their consent. For unless ness at the same place for the six months be- this were the purpose, the act could not apginning on that day. The treasurer refused ply to a person already engaged in the busito grant the demand without an order of the ness at the time of the passage of the act; board of commissioners, directing him to do and we may not conclude that the Legislaso. This action was then begun to compel ture intended it to apply only to persons the issuance of the license. The district about to engage in it in those communities court issued an alternative writ. The de- / where no such business was then being carfendant showed cause by demurrer, which ried on. "In the construction of a statute the upon consideration the court sustained, dis- intention of the Legislature * * * is to missing the proceedings and rendering judg- | be pursued if possible; and when general ment for defendant for costs. Thereupon the and particular provisions are inconsistent, relator appealed. the latter is paramount to the former. So The contention is that it was the duty of a particular intent will contro! a general one the treasurer, under ine provisions of chap- that is inconsistent with it." Code Civ. Proc. ter 71, p. 151, of the Laws of 1905, to issue § 3133. the license on demand, because the appel- We think the general intention of the Leglant, haying once presented his petition to islature is manifest, and that the loose use of the board of county commissioners, was not the word "intends” in the recital, upon which required thereafter at any time to present appellant founds his contention, cannot be il new petition or to have any action thereon held to be an expression of a particular inby the board. The act referred to is en- tent which will control and in great measure titled: "An act to regulate the issuance of render the act nugatory. Literally interlicenses of retail liquor dealers in cities, preted, the word "intends” conveys the idea towns, villages or camps containing a popula- contended for by appellant; but we think it tion of less than one hundred;" and whether apparent that its use was the result of hasty the appellant's contention is maintainable and careless work on the part of the person (lepends upon what construction is to be giv- who drew the bill, rather than that it is the en to it. expression of a well-defined intention on the Section 1 of the act, after declaring that part of the Legislature to limit its operation. all retail liquor dealers in all cities, towns, It renders the act somewhat ambiguous, but villages, or camps, etc., having a population the ambiguity must be resolved in favor of of less than 100 shall obtain a license from that construction which will render the act the county treasurer, proceeds: "But before uniform in its operation in all localities to the county treasurer shall be permitted to which it was intended to apply. And it can issue such license, petition shall first be filed be no serious objection to the act as a whole, and presented to the board of county commis- that it renders it exceedingly inconvenient sioners of the county, signed by at least for persons intending to obtain a second litwenty freeholders residing within the par- cense, to apply to the board of county comticular city, town, village, camp, or town- missioners, for the reason that licenses expire ship in which any person seeking such a at different dates, and that the board is not license, intends to engage in business, re- always in session, or that, in order to acquesting the issuance of such license to such commodate those engaged in such business, person, and they shall in their discretion it must hold special meetings at the expense thereupon direct the county treasurer to is- of the county. It is entirely within the provsue such license, but not otherwise.” ince of the Legislature, in the exercise of the Section 2 lodges the matter of directing police power of the state to regulate the sale the license to issue, entirely in the discretion of intoxicating liquors and to impose such of the board of county commissioners. restrictions upon those engaged in the busiSection 3 provides for the revocation of ness as will carry out its purpose. "The such license, and specifies the circumstances right to manufacture and traffic in intoxicatunder which the revocation may be made. ing liquors is one which is exercised subject Counsel for appellant bases his contention to the regulation and control of the police upon the words "intends to engage in busi- power of the state; a power of which the ness,” found in section 1 quoted supra, and Legislature cannot divest itself; and such argues that one already engaged in business body is the exclusive judge of the manner cannot entertain an intention to engage in it, in which such police power shall be exercised, and therefore the use of the word "intends" and its action thereon should be liberally construed." In re O'Brien, 29 Mont. 545, 75 Pac. 200. Any regulation of it is an inconvenience to the dealer, but no matter what inconvenience may be imposed upon him by the Legislature, so long as it bears equally upon all persous falling in his class, he has no right to complain. Counsel says that the legislation is obnoxious to constitutional principles, in that it grants to the board of county commissioners authority to act capriciously. The discretion referred to in section 2 of the act must be construed to be a fair administrative discretion. The act does not in terms nor does it impliedly authorize the board to act capriciously or arbitrarily. The fact that it may so act is no objection to the validity of the statute, because wherever , discretion in a particular matter is lodged in any judicial or administrative officer, he may be guilty of an abuse of it; but the fact that he may abuse the power vested in him is no valid objection to the legislation which vests the power. Let the judgment of the district court be aflirmed. Affirmed. court which provides: "3. The appellant's brief shall contain, in the order here stated : a. A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised. The abstract shall refer to the page numbers in the transcript in such a manner that pleadings, evidence, orders, and the judgment may be easily found: Provided. that in cases in which the transcripts are not printed, the briefs shall contain so much of the record as is necessary to make out the appellant's case, with references to the transcript by page and marginal numbers." The transcript is not printed, and appellants brief does not anywhere refer to the pleadings, and does not attempt to state the issues, or how they were raised. The purpose of the rule above is to relieve an appellant from the burden of printing the transcript in certain classes of cases, provided his brief contains so much of the record as will make out his case, and proper references are made to the transcript. It may not be necessary to print the pleadings in the brief if concise statements of their contents are made, with proper references to the pages of the transcript where they may be found, but, certainly, appellants do not make out their case in their brief, when they neglect to state whether any pleadings were filed, and, if any were filed, where they may be found, their contents or what, if any, issues. were raised. The rule above was adopted for the benefit of appellants, and is deserving of more consideration than an observance of its existence by a breach of its conditions. The motion is sustained, and the appeal is dismissed. Dismissed. MILBURN and HOLLOWAY, JJ., concur. BRANTLY, C. J., and MILBURN, J., concur. (34 Mont. 433) ALEXANDER V. GREAT NORTHERN RY. CO. et al. (Supreme Court of Montana. Oct. 29, 1906.) APPEAL-BRIEFS-FORM AND REQUISITES. Sup. Ct. Rule 10, par. 3, subd. a (82 Pac. x) requires appellant's brief to contain a concise abstract of the case, referring to the page numbers in the transcript in such manner that the pleadings, evidence, orders, etc., may be easily found ; provided, that, where the transcript is not printed, the briefs. shall contain so much of the record as is necessary to make out appellant's case, with references to the transcript by page and marginal numbers. Held, that where a transcript was not printed, and appellant's brief did not refer to the pleadings, and did not attempt to state the issues, or how they were raised, the appeal should be dismissed. [Ed. Note.--For cases in point, see vol. 3, Cent. Dig. Appeal and Error, $8 3095, 3126.] Appeal from District Court, Silver Bow County : Geo. M. Bourquin, Judge. Action by Mrs. G. A. Alexander, Jr., against Great Northern Railway Company and Montana Central Railway Company. Judgment for plaintiff, and defendants appeal. Motion to dismiss. - Sustained. E. L. Bishop, for appellants, John A. Shelton, for respondent. (34 Mont. 477) JOHNSON V. MAIETTE. (Supreme Court of Montana. Nov. 12, 1906.) 1. MASTER AND SERVANT-INJURIES TO SERV ANT — CONTRIBUTORY NEGLIGENCE – QUESTION FOR JURY. Where a servant was directed to perform certain work about an elevator, and he went on the elevator to do the work though he could have done it more safely standing outside the elevator, but he did not know that it was more dangerous to go on the elevator and the circumstances did not warrant the presumption that he ought to have known, negligence could not be imputed to him as a matter of law, but it was properly left to the jury to determine whether he ought to have known of the danger. [Ed. Note.-For cases in point, see vol. 34, Cent. Dig. Master and Servant, $$ 1099–1132.] 2. SAME-INSTRUCTION. Where, in an action for injuries to a servant, plaintiff requested an instruction that where an employé has two ways of performing a duty, one of which is dangerous and the other safe, and he knowingly and voluntarily or through negligent ignorance selects the dangerous one, thereby bringing upon himself an in HOLLOWAY, J. This is an appeal by defendants from a judgment of the district court of Silver Bow county in favor of the plaintiff for $122, and for interest and costs. The respondent moves to dismiss the appeal upon the ground that appellants have not complied with subdivision a, paragraph 3, Rule 10 (82 Pac. x) of the Rules of this jury which probably would not have befallen cage was so supported, the plaintiff, without him if he had selected the other one, he can directions from the defendant, but carelesspot recover damages, the modification of the instruction by inserting the word "obviously" ly, negligently, and wrongfully, went upon before the word “dangerous” was not error. it and busied himself in such a way thereon Appeal from District Court, Silver Bow that the plank broke, allowing the cage to County; Geo. M. Bourquin, Judge. fall to the ground, carrying plaintiff with it. Action by August Johnson against Joseph Upon these allegations there was issue by Maiette. From a judgment in favor of plain. reply. The trial resulted in a verdict for tiff, defendant appeals. Affirmed. plaintiff for $500, and judgment was entered accordingly. The defendant has appealed McBride & McBride, for appellant. Maury from the judgment and an order denying a & Hogevoll, for respondent. new trial. BRANTLY, C. J. This action was brought Many assignments of error are set out in to recover damages for a personal injury al the brief, but the only ones argued and subleged to have been suffered by the plaintiff mitted for decision are that the evidence is through the negligence of the defendant. insufficient to justify the verdict, and that The defendant is a building contractor. the court erred in submitting certain instruc At the time of the accident he was engaged in tions to the jury. . Plaintiff's evidence tended to show that erecting a building in the city of Butte. The plaintiff was employed by him as a mor the defendant, desiring to effect the neces sary change in the elevator, went with antar carrier. The complaint alleges that it was then and there the duty of the de other employé to the second floor, and while fendant to furnish to plaintiff a reasonably this employé, assisted by the plaintiff, who remained on the ground floor and pulled safe place to work; that the defendant directed the plaintiff to go upon a certain upon the cable, raised the cage, the defendelevator; that, unknown to the plaintiff, the ant thrust under it and across the shaft a elevator was insecurely and negligently sta plank, 2 inches thick and 10 or 12 inches in tioned at the second floor above the ground width, leaving the ends resting on the floor floor of the basement of the building; that on either side of the shaft. Upon this plank it was in a dangerous condition through the the cage rested. The defendant, having then negligence of the defendant in placing, or directed the plaintiff and the other employé allowing to be placed, under it to support it to make the change, went to another part of a plank which was weak, insufficient, unsafe, the building. A part of the work necessary and dangerous; and that without negligence to effect the change was a removal of the on the part of the plaintiff, and while he was guide rods. These were made of gas pipe engaged in exercising due care, the plank and had to be unscrewed and lifted out. They broke while he was on the elevator at the could be lifted out by a person standing on command of the defendant, with the result the floor on the outside of the elevator shaft, that he fell a distance of 20 feet, breaking but more conveniently by one standing on his arm at or near the wrist, resulting in per the deck of the cage. The plaintiff deemed manent injury. Judgment is demanded for it more convenient to stand on the deck of $2,570, including expenses for medical treat the cage, and did so, for the reason that ment. he could not have the same purchase for the The answer admits the employment and lift while standing on the floor, and for the the injury, but denies all the other material further reason that one board was missing allegations of the complaint. It alleges af. from the floor at the side of the shaft where firmatively that the injury was the result he would have to stand, and for this reason of plaintiff's own negligence, in this: That the footing was not safe. The evidence does the elevator had been used to raise brick and not show of what kind of wood the plank mortar from the ground to the second floor was, but it had a knothole in it, and, besides, of the building; that it had two cages, con was decayed. The plaintiff knew that the nected by cable, and was so operated that, cage rested uopn the plank, but knew nothing when one cage was at the ground floor, the of its character or of any defect therein. other was at the second floor; that during He testified that, if it had been sound and the progress of the work it became necessary without flaw, it would easily have sustained to change it so that it could be used to raise his weight as he lifted in addition to that material to the third floor also, and in order of the cage. The weight of the plaintiff was to effect the change it was necessary to de- 160 pounds. As the plaintiff lifted upon the tach the cage at the second floor from the rod, the plank broke and the cage fell, breakcable which connected it with the cage on ing plaintiff's arm. Immediately after the the ground floor; that to hold the cage at the accident the defendant admitted that he was second floor while making the change it solely to blame. The plaintiff had worked was allowed to rest upon a plank which was as a miner and bad had some experience placed under it, with its ends resting on the in using planks of the dimensions of the one floor on either side of the elevator shaft; here employed to support heavy machinery. that the plank was intended to support the Defendant's testimony was to the effect cage and nothing else; and that, while the that the cage was composed of hard wood |
