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of said section, but is good as an action at mitting the form of the general verdict to common law, which may entitle the plaintiff the jury, the same be so framed as to specify to recover his actual damages. [Ed. Note.-For other cases, see Trespass, arate cause of action, and also in such form

and state the amount found upon each sepDec. Dig. $ 16.*]

that the jury in the general verdict might Appeal from District Court, Bonner Coun- find for either plaintiff or defendant, and ty; Robert N. Dunn, Judge.

also in refusing its request to require the Action by the Menasha Woodenware Com- jury to render a separate verdict upon each pany against the Spokane International Rail- separate cause of action set forth in the comway Company. Judgment for plaintiff, and plaint. defendant appeals. Modified and affirmed. Sections 4396 and 4397, Rev. Codes, are as and remanded, with directions.

follows: Allen & Allen and Charles L. Heitman, for

"Sec. 4396. The verdict of a jury is either appellant. John P. Gray, Post, Avery & Hig- general or special. A general verdict is that gins, and A. H. Conner, for respondent.

by which they pronounce generally upon all

or any of the issues either in favor of the WOODS, District Judge. The respondent plaintiff or defendant; a special verdict is sues to recover damages from the appellant that by which the jury finds the facts only, for the value of a right of way appropriated leaving the judgment to the court. The speand used by appellant through certain lands,

cial verdict must present the conclusions of including the value of the timber cut from fact as established by the evidence, and not said right of way and used by appellant; for the evidence to prove them; and those conthree times the value of the timber alleged clusions of fact must be so presented as that to have been cut by appellant, wrongfully nothing shall remain to the court but to draw and unlawfully, on lands of respondent out from them conclusions of law. side of and adjoining said right of way, and

"Sec. 4397. In an action for the recovery of used by the appellant; for damages alleged money only, or specific real property, the to bave accrued to its whole tract of land, jury, in their discretion, may render a genexclusive of the part taken for its right of eral or special verdict. In all other cases way, by reason of its severance from that the court may direct the jury to find a spepart taken by its right of way; and the cial verdict in writing upon all or any of grading, construction, and operation of the the issues, and in all cases may instruct railroad, and the manner in which the same them, if they render a general verdict, to has been, is now, and will be, done; and for find upon particular questions of fact, to be a separate cause of action, alleges that about stated in writing, and may direct a written July 9, 1906, appellant unlawfully, negli- finding thereon. gently, etc., caused a fire to be started upon

“The special verdict or finding must be its roadbed and lands adjacent thereto, which tiled with the clerk and entered upon the spread and destroyed 1,653,000 feet of tim- minutes. Where a special finding of fact is ber, to respondent's damage.

inconsistent with the general verdict, the The appellant by answer admitted the con- former controls the latter, and the court struction of its railroad across two forties must give judgment accordingly." of respondent's land in 1905 and 1906, with

[2] The defendant did not request special out condemnation proceedings; denied that findings upon any material facts, except as its acts were without the knowledge and con

to the amount, if anything, the jury by their sent of respondent; admitted that it cut tim-verdict should find to be due respondent upher off the right of way and used the same;

on each separate claim made by it against and admits the value of the right of way was appellant. Whether under the statutes the of the sum of $520.70. All other material al- appellant had a right to have the court legations of the complaint were denied, and comply with its request is not material, for appellant offered to allow judgment for said the court by its action did submit to the sum of $520.70.

jury a list of questions to be answered by Upon these issues the trial was had before them, and which were so answered, as fol. the court with a jury, and on December 23,

lows: 1909, the jury returned a general verdict in "We, the jury sworn to try the abovefavor of respondent in the sum of $7.069.80, entitled cause, having found a general verwith interest, and also a special verdict or dict for the plaintiff, make the following findfindings in the form of questions and an- | ings of fact, shown by question and answer, swers. On the general verdict and the spe- to wit: Question 1. How much do you find cial findings the court, on the 24th day of for the value of the right of way, including December, 1909, signed and entered judgment the value of the timber upon said right of in favor of respondent and against the up-way cut by the defendant? Answer: $772 pellant in the sum of $10,113.31 and costs. and interest at 7 per cent. from December 1, This appeal is from the judgment.

1905, up to December 24, 1909. Question 2. [1] The appellant contends that the court How much, if anything, do you find as damerred in refusing its request that, in sub-l ages accruing and which will accrue to the

•For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes whole 280 acres described in, the complaint, in the complaint in this action is that apexclusive of the part taken for said right of pellant "wrongfully trespassed upon that way, by reason of its severance from that part of said land adjoining said roadbed, part taken for a right of way, and the grad- and wrongfully cut standing timber thereon, ing, construction, and operation of the rail and converted the same to its own use." road in the manner in which it has been The words contained in the section of the graded, constructed, and operated? Answer: statute, "without lawful authority," do not $5,090 and interest at 7 per cent. from July appear in the allegation above stated, but 9, 1906, up to December 24, 1909. Question there is the averment in the complaint that 3. How much, if anything, do you find as respondent has been damaged on account damages for timber cut and appropriated by thereof in the following sums, beside interthe defendant from the lands of the plaintiff est, as follows: "(a)

(b) In the sum outside of the right of way, and is such of $2,861.88 besides interest, being three times amount the actual damage found by you to the value of the timber cut by defendant, have been suffered, or three times such dam- wrongfully and without authority, outside age? Answer: $528.40 and interest at 7 and adjoining said right of way upon plainper cent. from August 9, 1906, up to Decem- tiff's land, and by defendant in the construcber 24, 1909. Actual damage. Question 4. tion of its road, and otherwise.” How much, if anything, do you find upon In the case of Barnes V. Jones, 51 Cal. plaintiff's second cause of action as damages 303, the court says: on account of fire? Answer: $679.50 and in- “The complaint avers that the plaintiff terest at 7 per cent. from August 9, 1906, up owned the land, and that the defendants, to December 24, 1909. C. R. Green, Fore- | 'without leave of the plaintiff, wrongfully' man."

entered and cut down and carried off the This we hold was within the province of timber, whereby the plaintiff was damaged the court, was a compliance in substance in a specified sum, 'contrary to the form, with the request of appellant, and that there force, and effect of section 251' of the pracwas no error in this action of the trial court. | tice act, giving its title and date. There is

The provisions of the sections of the Re- no averment that the trespass was commitvised Codes above quoted answer the objec- ted knowingly, willfully, or maliciously. The tion of appellant contained in its third as- answer denies that the plaintiff owned any signment of error, namely, that the court of the land described in the complaint, exerred in rendering judgment upon the gener- cept a certain specified portion thereof, and al and special verdicts, and we pass to the that any of the timber was cut on this porother points urged in argument.

tion. The court finds that the defendants [3] The objection of the appellant that the cut and carried away from the plaintiff's court erred in entering judgment for treble land described in the complaint timber of the the value of the timber cut from the land of value of $1,200; but that they entered 'un. respondent, outside of the right of way, will der a mistake as to the identity of the now be considered. Section 4531 of the Rev. land, believing it to be a portion of anothCodes provides that any person who cuts er tract which they claimed by purchase.' down or carries off any timber on the lands The court trebled the damages, and entered of another person without lawful authority a judgment for the plaintiff for $3,600; from is liable to the owner of such land in treble which, and from the order denying their mothe amount of damages which may be as- tion for a new trial, the defendants appeal. sessed therefor in a civil action in any court "The ground chiefly relied upon for a rehaving jurisdiction. This section is as fol. versal of the judgment is that the court lows: "Any person who cuts down or car- erred in trebling the damages; and we are ries off any wood or underwood, trees, or of the opinion that the judgment is erro. timber, or girdles, or otherwise injures any neous in this particular. While the statute tree or timber on the land of another person, does not so state in terms, it is clear, we think, or on the street or highway in front of any that it was not intended to apply to cases person's house, village, or city lot, or cul- in which the trespass was committed through tivated grounds; or on the commons or pub- an innocent mistake as to tbe boundary or lic grounds of or in any city or town, or on location of a tract of land claimed by the the street or highway in front thereof, with defendant. Similar statutes of other states out lawful authority, is liable to tue owner have received this construction, and we are of such land, or to such city or town, for satisfied it is correct. Batchelder v. Kelly, treble the amount of damages which may be 10 N. H. 436, 34 Am. Dec. 174; Russell v. assessed therefor, in a civil action, in any | Irby, 13 Ala. 131; Perkins v. Hackelman, court having jurisdiction."

26 Miss. 41, 59 Am. Dec. 243; Whitecraft v. That section, being identical with the pro- Vandever, 12 Ill. 235. In the case first citvisions of section 733 of the Code of Civil ed, the Supreme Court of New Hampshire Procedure of California, renders the deci- said: "The general tenor of the statute is sions of the California Supreme Court upon such as wholly to preclude the idea that it the construction of such section entitled to was designed to apply to unintentional tresgreat consideration. Before passing to that, passers ;' and in Russell v. Irby the Su

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entirely clear that the cutting of trees upon , divided between appellant and respondent.
another's land, under the impression that This cause is remanded, with directions to
the party had not gone beyond his own the district court to modify the judgment
boundaries, was not within the contempla in accordance with this opinion.
tion of the Legislature. Moral justice would
forbid any extraordinary infliction in such

AILSHIE, P. J., and SULLIVAN, J., con-

a case, and the damages recoverable at com-


mon law would afford an adequte repara-


“The plaintiff, however, contends that the

(43 Mont. 102)

finding, to the effect that the defendants


committed the trespass unintentionally, and (Supreme Court of Montana. March 22, 1911.)

through mistake, in outside of any issue rais- 1. JUDGMENT ($ 279*) – JUDGMENT ROLL-

ed by the pleadings, and should be disregard-


ed. But, upon our construction of the stat- Under Rev. Codes, $8 6784, 6806, respec-
ute, the complaint fails to state a case en- tively providing that the verdict, or orders sus-
titling the plaintiff to treble damages.

It taining or overruling a demurrer, or orders al-

lowing an amendment to pleadings, or striking
contains no averment that the trespass was out a pleading, or portion thereof, shall be deem-
willful, but only that the entry and cutting ed excepted to without any exception, and that
of the timber was wrongful, and without the judgment roll shall consist of the pleadings,
the plaintiff's leave. The statute has no

verdict, or findings, and all orders deemed ex-

cepted to without exceptions, an order sustain-
application to such a case; and, though good ing a motion to strike out part of the defend-
as an action at common law, entitling the ant’s answer is part of the judgment roll.
plaintiff to recover his actual damage, the [Ed. Note.--For other cases, see Judgment,
complaint does not state a case in which Cent. Dig. $8 546–551; Dec. Dig. $ 279.*]
the damages can be trebled. The judgment 2. APPEAL AND ERROR ($ 518*) — RECORD
is therefore hereby modified by reducing the

amount thereof to $1,200, and as so modified

The original pleadings after an amendment

are no longer part of the record.

is affirmed."

[Ed. Note. For other cases, see Appeal and

[4] The respondent contends that every Error, Cent. Dig. & 2347; Dec. Dig. § 518.*]
presumption in favor of the validity of the

judgment not negatived by the record must

be taken by this court, and we may concede Where a motion to strike out part of the
that proposition to be true. In our con- defendant's answer was sustained, an amended
struction of the statute, the complaint does answer being filed, and the defendant after ver-

dict in her favor sought a review of the action
not state facts sufficient to entitle it to treble of the court on the motion to strike under the
damages. As said in Barnes v. Jones, supra: provisions of Rev. Codes, $ 7118, allowing a re-
"It contains no averment that the trespass view of orders prejudicial to respondept, and
was willful, but (as in the case at bar) only ported copies of the original pleadings and mo-

filed an additional transcript containing pur-
that the entry and cutting was wrongful and tion to strike, which had neither caption nor
without plaintiff's leave. The statute has no conclusion, nor recitals identifying those docu-
application to such a case, and though (the ments, although there was a purported bill of
complaint is) good as an action at common exceptions, signed by the trial judge on the mo-

tion to strike, which incorporated none of these
law, entitling the plaintiff to recover his ac- papers into the record by reference, the action
tual damages, the complaint does not state of the trial court in sustaining the motion to
a case in which the damages can be trebled.” strike cannot be reviewed, for, while the order
We find additional authority for this con- original pleadings against which it was directed

sustaining that motion is part of the record, the

struction of the statute in cases cited by are no longer a part of the record.

appellant. McDonald v. Montana Wood Co., [Ed. Note. For other cases. see Appeal and

14 Mont. 88, 35 Pac. 668, 43 Am. St. Rep. Error. Cent. Dig. 88 2685–2687; Dec. Dig. $

616, and Endlich, Interpretation of Stats. $



4. DIVORCE (8 144*) - PROCEEDINGS — Func-

In our view of the law, it is not necessary


The action of divorce is an equitable action,

to pass upon the question of adding interest and hence, if there be a jury, its office is merely

to the amount included in the treble damage. advisory; its findings not being binding upon

The respondent, in conceding it to be error the trial court.

so to do, and in its offer to remit the amount

[Ed. Note.-For other cases, see Divorce,

so erroneously included in the judgment, but Cent. Dig. $$ 484-487; Dec. Dig. § 144.*]

yields to the law.


Subdivision 3 of the judgment for the sum

of $1,594.90 is mouified to the amount of ac- failure or refusal of the court at the request of

Where a trial is had before the court, the
tual damages as shown by the special finding a party to make separate findings of fact is
of the jury to the sum of $653.11, thus modi error, for Rev. Codes, $8 6763, 6764, provide
fying the aggregate judgment to $8,807.09, that upon a trial of a question of fact by the
and as so modified the judgment is affirmed. in writing, and though section 6766 provides

court its decision or findings must be given

The entire costs of this appeal to be equally that no judgment shall be reversed for a failure

*For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key No. Series & Rep'r Indexes


to make such findings where they are not re-13. DIVORCE ($ 184*) - RECORD - QUESTIONS quested.

PRESENTED FOR REVIEW. [Ed. Note.-For other cases, see Trial, Cent. In an action for divorce, where letters adDig. 88 908–911; Dec. Dig. 8 388.*]

mittedly written by one of the parties, though

excluded below, were incorporated in the rec6. APPEAL AND ERROR (8 931*) — REVIEW ord, the appellate court, in making a final de PRESUMPTIONS.

termination of the case, will consider them. Where the trial court, sitting as a jury, ad

[Ed. Note.--For other cases, mits incompetent evidence, it is to be presumed Cent. Dig. $$ 570-573; Dec. Dig. § 184.*]

see Divorce, that such evidence was disregarded when the court made its decision.

14. DIVORCE ($ 37*)-GROUNDS_DESERTION. [Ed. Note.For other cases, see Appeal and tual consent, that consent is not revoked be

Where a husband and wife separate by muError, Cent. Dig. $ 3766; Dec. Dig. $ 931.*]

cause the husband fails to support the wife 7. EVIDENCE (8 151*) -- INTENT-ADMISSIBIL- when she does not complain, or because he at

tempts to secure a divorce, where she also seeks In an action for divorce on the grounds of to dissolve the marriage, for Rev. Codes, $ 3650, desertion, where the plaintiff's wife, who had provides for a separation by consent, which may been living apart from him, refused to return be revoked by either of the parties, and in this upon his invitation, testimony of the husband as case there was no revocation; the parties showto his intention in making this invitation is ad- ing a willingness to remain separate. missible.

(Ed. Note.-For other cases, see Divorce, [Ed. Note.--For other cases, see Evidence, Cent. Dig. $$ 120-129; Dec. Dig. $ 37.*] Cent. Dig. § 440; Dec. Dig. § 151.*]


Whether or not a letter written by a husThe exclusion of material evidence is harm- band to his wife, requesting her to return to less error, where the same testimony has pre- him and resume their marital relations, was viously gone into the record without objection. written in good faith is a question of fact. [Ed. Note.-For other cases, see Appeal and

[Ed. Note.-For_other cases, see Divorce, Error, Cent. Dig. 88 4200-4206; Dec. Dig. $ Cent. Dig. § 493; Dec. Dig. § 147.*] 1058.*]

16. DIVORCE (8 133*) — PROCEEDINGS — Evi


In an action for divorce, evidence held to Where a husband and wife separated in show that the original separation was by con1898 and remained apart for a long time, until sent, and the husband's offer of reconciliation the husband finally sought the wife to return

was made in good faith, and capriciously rejecthome, but she refused, and he sought a divorce ed by the wife. upon the grounds of desertion, and the wife also

(Ed. Note.-For other cases, see Divorce, sought a divorce by way of cross-relief, alleging Cent. Dig. $$ 446-448; Dec. Dig. § 133.*] that the original separation was not by consent, and testified to that effect, letters written

Appeal from District Court, Silver Bow by her shortly after the separation, in which she County; J. Miller Smith, Judge. showed a friendly interest in the plaintiff and a Action by John R. Bordeaux against Ella full understanding of the separation, without F. Bordeaux. From a judgment for defendexpressing any dissatisfaction or desire to end ant and an order overruling a motion for a it, are admissible,

(Ed. Note.-For other cases, see Divorce, new trial, plaintiff appeals. Order denying Cent. Dig. 388; Dec. Dig. $ 119.*]

new trial affirmed and decree of divorce re10. EVIDENCE (8 67*)-PRESUMPTIONS — Conversed, and cause remanded, with directions

TINUANCE OF CONDITION-DESERTION-SEP- to enter decree in favor of plaintiff.
Where a separation by consent has been

L. P. Forestell and I. A. Cohen, for appelhad, it is presumed to continue until one party lant. John J. McHatton, for respondent. revokes consent and seeks reconciliation, for Rev. Codes, 8 3050, provides that separation by

BRANTLY, C. J. This is an action for diconsent is revocable. (Ed. Note.-For other cases,

vorce on the ground of desertion. The trial

see Evidence, Cent. Dig. SS 87, 88, 103; Dec. Dig. $ 67.*]

was by the court sitting with a jury. The

jury being unable to agree upon anwers to 11. DIVORCE ($184*) — REVIEW -- HARMLESS ERROR-EXCLUSION OF EVIDENCE.

special interrogatories submitted to them, the In an action for divorce, in which the is-court discharged them and rendered judg. sue was whether an original separation was by ment, dismissing the action, after refusing consent, the exclusion of letters written by one plaintiff's request for special findings upon of the parties shortly after the separation, which showed that the separation was by con- the controverted issues. The plaintiff has sent, was prejudicial error.

appealed from the judgment and an order de[Ed. Note.-For other cases, see Divorce, nying his motion for a new trial. Cent. Dig. 88 570-573; Dec. Dig. § 181.*]

The parties were married on June 2, 1886, 12. APPEAL AND ERROR (8 843*) – REVIEW, but have lived separate and apart since JanSCOPE-STATUTES.

uary 23, 1898. The complaint was filed on Under the direct provisions of Rev. Codes, & 6253, it is the duty of the Supreme Court, after March 10, 1909. It contains two counts. In determining that a case must be reversed,'to de- the first it is alleged that the defendant decide the various questions of law and fact pre- serted the plaintiff on March 19, 1906; in the sented by the record, making such a disposition second the desertion is alleged to have occurof the whole case as the circumstances require, red on March 15, 1907. At the trial the first

[Ed. Note.--For other cases, see Appeal and Error, Cent. Dig. $8 3331-3341; Dec. Dig. $ count was abandoned. As shown by the al843.*)

legations of the amended complaint and the evidence introduced, plaintiff's theory of the, is in the judgment roll and properly before case is that from January 23, 1898, until us. Rev. Codes, 88 6784, 6806.

[2] The March 15, 1907, he and the defendant had amended answer at which the motion was dilived apart by mutual consent, and that on rected, together with the motion by which the latter date he in good faith sought a rec. alone the stricken matter could be identified, onciliation with defendant and a restoration are not authenticated in any way. The of the marital relation, but that she rejected pleading as reformed into the second amendhis overtures and has ever since continued to ed answer took the place of the pleading as reject them, thus rendering her guilty of de originally drawn, which, because it was thus sertion.

superseded and displaced, was no longer a In her second amended answer the defend part of the judgment roll or of the record on ant denies that she ever deserted the plain- appeal. Raymond v. Thexton, 7 Mont. 299, tiff, and alleges that he willfully and with- 17 Pac. 258 ; Butte Butchering Co. v. Clarke, out cause deserted and abandoned her, and 19 Mont. 306, 48 Pac. 303. It could not therefor more than a year prior to March 16, 1907, fore be considered a part of the record, unless refused to live with her. She asks for a de- made such by a bill of exceptions properly cree granting her a limited divorce and re- settled by the judge. This, as we have seen, quiring the plaintiff to pay her attorney's has not been done. The conclusion must fee, and to provide for her separate main- therefore follow, that the only paper before tenance. In their effort to reach an issue in us showing what the action of the court was the district court, the parties amended their is the order found in the judgment roll. pleadings in several particulars which they Whether it prejudiced the defendant we candeemed material.

not say, because we have no means of know[3] When the transcript of the record was ing the theory upon which it proceeded or filed in this court, counsel for defendant ask what its effect was. The section of the ed leave to file a supplement to it, which he statute referred to, upon which counsel for insisted properly exhibited, by bill of ex- defendant would rely, whether applicable to ceptions, the action of the court in sustain- an order made anterior to the trial or noting a motion of plaintiff to strike from her and we do not decide whether it is cannot amended answer allegations deemed by him avail him, because the record is not in propto be material. Leave was granted, subject er form to give his exceptions material imto the right of counsel for plaintiff at the port. The supplemental transcript must hearing to object to the consideration of the therefore be disregarded. supplement as a part of the record.


Counsel for plaintiff contends that the depurpose sought by filing the supplement was cree should be reversed and a new trial orto have this court review the action of the dered because of the refusal of the court to trial court upon the motion to strike, under make specific findings. At the time the the authority conferred by the statute (Rev. case was submitted, he not only prepared Codes, & 7118), and affirm the decree, if satis- and submitted written findings, but also fied that, on account of the error in sustain- had his request for findings entered in the ing the motion, it ought to be affirmed, not- minutes. The refusal by the court to grant withstanding any error committed against the request was clearly erroneous. [4] This the plaintiff in other particulars. This sup- is an equity action. The office of the jury plemental transcript, in addition to copies was merely advisory. Though they had of the pleadings upon which the trial was agreed upon answers to the interrogatories had, contains what purports to be copies of the submitted, the result would nevertheless have original complaint, the original and first been a trial by the judge, and the final deciamended answers, and the motion to strike. sion would have been his decision without It has neither a caption nor a conclusion ; nor regard to the action of the jury, for he still does it contain any recital identifying these had the option to reject these findings and papers or any of them. There was filed with to make others conforming to his own views the clerk, however, a document of which the of the evidence. Lawlor v. Kemper, 20 Mont. following is a copy: “Title of Court and 13, 49 Pac. 398 ; Power v. Lenoir, 22 Mont. Cause. Bill of Exceptions. Be it remem- 169, 56 Pac. 106; Wetzstein v. Largey, 27 bered that the court did, on the 1st day of Mont. 212, 70 Pac. 717. April, 1910, sustain the plaintiff's motion to [5] Whether request was made for findstrike from defendant's second amended an- ings or not, it was the duty of the judge to swer to which defendant excepted, and then make them. The statute declares: “Upon and there prepared and had this her bill of a trial of a question of fact by the court, its exceptions thereto at the time, which is full, decision or findings must be given in writtrue, and correct. J. Miller Smith, Judge ing and filed with the clerk within twenty presiding.” This document does not purport days after the case is submitted for decito bring anything into the record by refer- sion.” Rev. Codes, § 6763. This command ence or otherwise. Whether it refers to the is clear and specific, requiring no interpretamotion, a copy of which precedes it, or the tion. It is true that another section (6766) other papers, we can but guess. [1] The or- | declares that "no judgment shall be reder sustaining the motion is part of the versed on appeal for want of findings at the judgment rols. So far as it is concerned, it | instance of any party who, at the close of

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