opinion, which, therefore, does not give me any light. The cause of action in the Nebraska case was for supplying a windmill. The counsel in the case for the lienor put their claim upon the ground that it was for both labor and material, and that only pure material men were excluded by the homestead exemption. That the claim was for both labor and material does not, however, appear in the statement of facts made by the court, nor in the meager expression of opinion as to the law. But if the Nebraska case was, as counsel therein argued, one for material and labor both, then the case is not in conflict with the views which I suggest; and, if the case was one for material only, all that I can say is that the case was not sufficiently reasoned out to give me any satisfaction. This matter was suggested in Merrigan v. English, supra, and the 70 and 74 Cal. (11 and 16 Pac. Rep.) cases were called to the attention of the court. But the court held that those cases were not in point in Merrigan v. English, and said: "In each of the cases cited, the court treated the lien as a lien for material alone. In the first case cited, the lien, as a matter of fact, was for material only. We do not hold that a material man has such a lien as will be valid against a homestead. That is not the question before us." I am therefore of opinion that the district court should be sustained in its finding that the premises were a homestead, and also in its conclusion that a pure material man or lumberman cannot enforce a lien against a homestead.

(13 Mont. 300)

MATTOCK v. GOUGHNER. (Supreme Court of Montana. Sept. 5, 1893.) APPEAL-EFFECT OF REVERSAL-CONFLICTING EV

IDENCE.

1. Where appeal is taken from the entire judgment, a general reversal and remand require a new trial of all the issues, as if the case had never been tried.

2. Where the record on appeal from a judgment based on conflicting evidence does not disclose any abuse of judicial discretion in overruling the motion for a new trial, the judgment will not be disturbed.

Appeal from district court, Park county; Frank Henry, Judge.

Action by Getchell L. Mattock against Emanuel Goughner. Plaintiff had judgment, from which, and an order denying a new tri al, defendant appeals. Affirmed.

For former report, see 28 Pac. Rep. 301. Savage & Day, for appellant. Allen R. Joy, for respondent.

PEMBERTON, C. J. This is a suit for debt. There are two counts in the complaint, the first alleging an indebtedness for labor done and performed. The second is based on a duebill. This is the second appeal of this case. See Mattock v. Geughnour,

11 Mont. 265, 28 Pac. Rep. 301. The former appeal was taken from the entire judgment, as well as the order denying a new trial. This court reversed the judgment, set aside the order appealed from, and remanded the cause for new trial. At the second trial of the case in the court below the appellant sought, and requested the court, to confine the issues to be tried to the first count in the complaint; claiming that the judgment of this court on the former appeal was limited to the insufficiency of the evidence to sustain the verdict of the jury on said first count and consequently left nothing to be tried but the issues under this count. The appellant, at the close of the testimony, requested the court to instruct the jury in this respect as follows: "You are instructed that the only issue in controversy in this action is as to the employment of the plaintiff by the defendant subsequent to the 25th day of Octeber, 1888, and you will exclude from your consideration all evidence of the execution of the duebill, and the payment made thereon." The court refused the request of the appellant, and this action is assigned as error on this appeal.

The former appeal of this cause was from the entire judgment, and order of the trial court refusing a new trial. This court reversed the entire judgment, and set aside the order denying a new trial, and remanded the cause for new trial. This placed the case in the court below, at the time of the second trial, in the same condition as if it had never been tried at all. The former appeal was not taken from a part of the judgment rendered at the first trial, as might have been done. Code Civil Proc. § 444, p. 180; Bank v. Fuqua, 11 Mont. 285, 28 Pac. Rep. 291. Everything done in the first trial by the court below was reversed, set aside, and the whole case remanded for a new trial by this court on the former appeal. We think the court committed no error in refusing the request of appellant, complained of here. We cannot see how the trial court could have done otherwise than try the whole case anew.

The appellant insists that the evidence is insufficient to sustain the verdict, and claims the evidence is substantially the same as on the former trial, and claims that, as this court held the evidence insufficient to support the verdict in the former trial, it must do so in this appeal. The respondent claims that the evidence is not the same in this as in the former trial; that other evidence and circumstances are disclosed in this record, not in the former, sufficient to authorize and support the verdict; and the record sustains this position. There is, it must be confessed, a palpable conflict in the evidence in this case. The jury, we think, would have been justified in finding for either party. We cannot say that the evidence is so satisfactory as to make it clear to our minds that the verdict should not have been the other way. But it is the province of the jury, under the law,

to pass upon the credibility of the witnesses, and the weight to be given to their testimony, and to determine conflicts therein. The court below heard the witnesses testify on the stand, observed their manner, considered whatever interest they may have had in the result of the suit, and doubtless duly considered these matters in passing upon the motion for a new trial. In such matters a very large discretionary power is given to the trial court, and rightly so. We cannot interfere with the exercise of this power, unless convinced, from a consideration of the whole record, that there has been shown abuse of such discretionary power. From such consideration of the record, we are not satisfied that there has been such an abuse of discretion as to make it incumbent upon us to interrupt the judgment and rulings of the court below, especially as this is the second trial of this cause. The judgment of the court below is affirmed.

HARWOOD, J., concurs.

DE WITT, J. I concur in the affirmance. My views were fully expressed on the former appeal. 11 Mont. 265, 28 Pac. Rep. 301.

(13 Mont. 288)

JORGENSON v. BUTTE & MONTANA COMMERCIAL CO.

(Supreme Court of Montana. Sept. 5, 1893.) PRACTICE-NONSUIT-CROSS-EXAMINATION.

1. Plaintiff was injured by a fall while employed as a carpenter by defendant, and in an action therefor he alleged that the fall resulted from the incompetency of H., a coservant, and that because of the careless and unskillful treatment of the wound by a surgeon employed by defendant it was necessary to amputate plaintiff's leg. The evidence failed to show any lack of skill by H., or the necessity for his exercise of any particular skill, or that defendant had knowledge of any incompetency of H. of which plaintiff was ignorant. Plaintiff's evidence tended to show that H. was not working with plaintiff at the time of his injury, and that plaintiff had stated that he alone was to blame; that the surgeon employed was duly qualified, under the laws of the state, to practice his profession; and it failed to show any injury to the leg, as a result of a lack of skill. Held, that a nonsuit was properly directed.

2. In an action by a servant for personal injuries resulting from the incompetency of H., a coservant, plaintiff called H. as a witness, stating that "the witness would refer to the time and place plaintiff fell, for the purpose of fixing the time and place of other events in connection with the case, and does not wish to make the witness his witness as to the acts he was doing at the immediate time of the fall." H. then testified to facts connected with plaintiff's fall. Held proper to allow H. to be cross-examined as to the entire case.

Appeal from district court, Cascade county; Charles H. Benton, Judge.

Action for personal injuries by H. C. Jorgenson against the Butte & Montana Commercial Company. From a judgment of nonsuit directed by the court, plaintiff appeals. Affirmed.

F. C. Park, for appellant. Arthur J. Shores, for respondent.

PEMBERTON, C. J. This is a suit for damages for personal injuries. The appellant, who was plaintiff below, alleges in his complaint that he is a skilled carpenter; that on March 5, 1891, he was employed by respondent to work on its mill at Great Falls; that on the 20th day of March, 1891, while engaged at work handling heavy plank on the third story of respondent's said mill, he fell to the floor below, breaking his leg; that his fall, by which he was so injured, was caused by the incompetency, lack of skill and knowledge, of one Harlander, a colaborer who was engaged in assisting him in his work; that defendant knew of the incompetency of the said Harlander, and appellant did not. The complaint further alleges that defendant employed, as it was bound to do under its contract with appellant, surgeons to treat his broken limb; that these surgeons so carelessly and unskillfully treated his leg, and were so negligent in nursing and caring for appellant during his sickness, that it became and was necessary to amputate the leg of appellant in order to save his life; that the want of skill and ability of said surgeons was known to the respondent at the time, and unknown to appellant; that defendant was guilty of negligence in the employment of said unskillful laborer to assist appellant in his work on said building, and in the employment of unskillful and negligent surgeons to treat and nurse him. The appellant testified to the fact of his falling, how it occurred, and the result. He attributes his fall to the incompetency of Harlander. As to the manner of his treatment by the surgeons and nurses, his evidence is unreliable, as he admits that a great part of the time he was unconscious. Besides, his testimony does not show any knowledge of these matters. He was manifestly not supported by the testimony of his other witnesses as to the material facts in his evidence. Harlander, the man appellant says was assisting him at the time he fell, and to whose incompetency appellant attributes his fall and injury, swears he was not helping appellant at the time he fell and was injured; that the appellant was working alone at that time. H. L. Smith, another witness for appellant, testified as follows: "I talked with him [appellant] about this fall. He said he slipped and fell, and said nobody was to blame for it but himself." The appellant testified that at the time he fell he was using a pevee in handling and moving the planks. Beecher, a witness for appellant, testified that he was a carpenter, at work on the same building with appellant at the time he fell; that appellant was using a pevee; that he considered it safer work ing where appellant was without a pevee; and that the superintendent had given all

opinion, which, therefore, does not give me any light. The cause of action in the Nebraska case was for supplying a windmill. The counsel in the case for the lienor put their claim upon the ground that it was for both labor and material, and that only pure material men were excluded by the homestead exemption. That the claim was for both labor and material does not, however, appear in the statement of facts made by the court, nor in the meager expression of opinion as to the law. But if the Nebraska case was, as counsel therein argued, one for material and labor both, then the case is not in conflict with the views which I suggest; and, if the case was one for material only, all that I can say is that the case was not sufficiently reasoned out to give me any satisfaction. This matter was suggested in Merrigan v. English, supra, and the 70 and 74 Cal. (11 and 16 Pac. Rep.) cases were called to the attention of the court. But the court held that those cases were not in point in Merrigan v. English, and said: "In each of the cases cited, the court treated the lien as a lien for material alone. In the first case cited, the lien, as a matter of fact, was for material only. We do not hold that a material man has such a lien as will be valid against a homestead. That is not the question before us." I am therefore of opinion that the district court should be sustained in its finding that the premises were a homestead, and also in its conclusion that a pure material lumberman cannot enforce a lien against a homestead.

(13 Mont. 300)

man or

MATTOCK v. GOUGHNER. (Supreme Court of Montana. Sept. 5, 1893.) APPEAL-EFFECT OF REVERSAL-CONFLICTING EV

IDENCE.

1. Where appeal is taken from the entire judgment, a general reversal and remand require a new trial of all the issues, as if the case had never been tried.

а

2. Where the record on appeal from judgment based on conflicting evidence does not disclose any abuse of judicial discretion in overruling the motion for a new trial, the judgment will not be disturbed.

Appeal from district court, Park county; Frank Henry, Judge.

Action by Getchell L. Mattock against Emanuel Goughner. Plaintiff had judgment, from which, and an order denying a new tri al, defendant appeals. Affirmed.

For former report, see 28 Pac. Rep. 301. Savage & Day, for appellant. Allen R. Joy, for respondent.

PEMBERTON, C. J. This is a suit for debt. There are two counts in the complaint, the first alleging an indebtedness for labor done and performed. The second is based on a duebill. This is the second appeal of this case. See Mattock v. Goughnour,

11 Mont. 265, 28 Fac. Rep. 301. The former appeal was taken from the entire judgment, as well as the order denying a new trial. This court reversed the judgment, set aside the order appealed from, and remanded the cause for new trial. At the second trial of the case in the court below the appellant sought, and requested the court, to confine the issues to be tried to the first count in the complaint; claiming that the judgment of this court on the former appeal was limited to the insufficiency of the evidence to sustain the verdict of the jury on said first count and consequently left nothing to be tried but the issues under this count. The appellant, at the close of the testimony, requested the court to instruct the jury in this respect as follows: "You are instructed that the only issue in controversy in this action is as to the employment of the plaintiff by the defendant subsequent to the 25th day of Octeber, 1888, and you will exclude from your consideration all evidence of the execution of the duebill, and the payment made thereon." The court refused the request of the appellant, and this action is assigned as error on this appeal.

The former appeal of this cause was from the entire judgment, and order of the trial court refusing a new trial. This court reversed the entire judgment, and set aside the order denying a new trial, and remanded the cause for new trial. This placed the case in the court below, at the time of the second trial, in the same condition as if it had never been tried at all. The former appeal was not taken from a part of the judgment rendered at the first trial, as might have been done. Code Civil Proc. § 444, p. 180; Bank v. Fuqua, 11 Mont. 285, 28 Pac. Rep. 291. Everything done in the first trial by the court below was reversed, set aside, and the whole case remanded for a new trial by this court on the former appeal. We think the court committed no error in refusing the request of appellant, complained of here. We cannot see how the trial court could have done otherwise than try the whole case anew. The appellant insists that the evidence is insufficient to sustain the verdict, and claims the evidence is substantially the same as on the former trial, and claims that, as this court held the evidence insufficient to support the verdict in the former trial, it must do so in this appeal. The respondent claims that the evidence is not the same in this as in the former trial; that other evidence and circumstances are disclosed in this record, not in the former, sufficient to authorize and support the verdict; and the record sustains this position. There is, it must be confessed, a palpable conflict in the evidence in this case. The jury, we think, would have been justified in finding for either party. We cannot say that the evidence is so satisfactory as to make it clear to our minds that the verdict should not have been the other way. But it is the province of the jury, under the law,

to pass upon the credibility of the witnesses, and the weight to be given to their testimony, and to determine conflicts therein. The court below heard the witnesses testify on the stand, observed their manner, considered whatever interest they may have had in the result of the suit, and doubtless duly considered these matters in passing upon the motion for a new trial. In such matters a very large discretionary power is given to the trial court, and rightly so. We cannot interfere with the exercise of this power, unless convinced, from a consideration of the whole record, that there has been shown abuse of such discretionary power. From such consideration of the record, we are not satisfied that there has been such an abuse of discretion as to make it incumbent upon us to interrupt the judgment and rulings of the court below, especially as this is the second trial of this cause. The judgment of the court below is affirmed.

HARWOOD, J., concurs.

DE WITT, J. I concur in the affirmance. My views were fully expressed on the former appeal. 11 Mont. 265, 28 Pac. Rep. 301.

(13 Mont. 288)

JORGENSON v. BUTTE & MONTANA COMMERCIAL CO.

(Supreme Court of Montana. Sept. 5, 1893.) PRACTICE-NONSUIT-CROSS-EXAMINATION.

1. Plaintiff was injured by a fall while employed as a carpenter by defendant, and in an action therefor he alleged that the fall resulted from the incompetency of H., a coservant, and that because of the careless and unskillful treatment of the wound by a surgeon employed by defendant it was necessary to amputate plaintiff's leg. The evidence failed to show any lack of skill by H., or the necessity for his exercise of any particular skill, or that defendant had knowledge of any incompetency of H. of which plaintiff was ignorant. Plaintiff's evidence tended to show that H. was not working with plaintiff at the time of his injury, and that plaintiff had stated that he alone was to blame; that the surgeon employed was duly qualified, under the laws of the state, to practice his profession; and it failed to show any injury to the leg, as a result of a lack of skill. Held, that a nonsuit was properly directed.

2. In an action by a servant for personal injuries resulting from the incompetency of H., a coservant, plaintiff called H. as a witness, stating that "the witness would refer to the time and place plaintiff fell, for the purpose of fixing the time and place of other events in connection with the case, and does not wish to make the witness his witness as to the acts he was doing at the immediate time of the fall." H. then testified to facts connected with plaintiff's fall. Held proper to allow H. to be cross-examined as to the entire case.

Appeal from district court, Cascade county; Charles H. Benton, Judge.

Action for personal injuries by H. C. Jorgenson against the Butte & Montana Commercial Company. From a judgment of nonsuit directed by the court, plaintiff appeals. Affirmed.

F. C. Park, for appellant. Arthur J. Shores, for respondent.

PEMBERTON, C. J. This is a suit for damages for personal injuries. The appellant, who was plaintiff below, alleges in his complaint that he is a skilled carpenter; that on March 5, 1891, he was employed by respondent to work on its mill at Great Falls; that on the 20th day of March, 1891, while engaged at work handling heavy plank on the third story of respondent's said mill, he fell to the floor below, breaking his leg; that his fall, by which he was so injured, was caused by the incompetency, lack of skill and knowledge, of one Harlander, a colaborer who was engaged in assisting him in his work; that defendant knew of the incompetency of the said Harlander, and appellant did not. The complaint further alleges that defendant employed, as it was bound to do under its contract with appellant, surgeons to treat his broken limb; that these surgeons so carelessly and unskillfully treated his leg, and were so negligent in nursing and caring for appellant during his sickness, that it became and was necessary to amputate the leg of appellant in order to save his life; that the want of skill and ability of said surgeons was known to the respondent at the time, and unknown to appellant; that defendant was guilty of negligence in the employment of said unskillful laborer to assist appellant in his work on said building, and in the employment of unskillful and negligent surgeons to treat and nurse him. The appellant testified to the fact of his falling, how it oc curred, and the result. He attributes his fall to the incompetency of Harlander. As to the manner of his treatment by the surgeons and nurses, his evidence is unreliable, as he admits that a great part of the time he was unconscious. Besides, his testimony

does not show any knowledge of these matters. He was manifestly not supported by the testimony of his other witnesses as to the material facts in his evidence. Harlander, the man appellant says was assisting him at the time he fell, and to whose incompetency appellant attributes his fall and injury, swears he was not helping appellant at the time he fell and was injured; that the appellant was working alone at that time. H. L. Smith, another witness for appellant, testified as follows: "I talked with him [appellant] about this fall. He said he slipped and fell, and said nobody was to blame for it but himself." The appellant testified that at the time he fell he was using a pevee in handling and moving the planks. Beecher, a witness for appellant, testified that he was a carpenter, at work on the same building with appellant at the time he fell; that appellant was using a pevee; that he considered it safer working where appellant was without a pevee; and that the superintendent had given a"

they have never conveyed that interest to any one except Cobban. It was found that Cobban, at the time the action was commenced, had built a foundation for a house, which was partly upon the Yellow Jack claim. The court found that the plaintiff corporation was entitled to purchase and hold the one-eighth interest in said mining claim. The judgment decreed that the deed made in the name of Largey, superintendent of plaintiff, to defendants Schwab, Cummings, Hauser, and Fitchen, is null and void, and that it conveyed no title; also, that the deed made by Schwab to Cobban, and the deed made by Cummings to Cobban, are

that at the time of application for patent the Butte Hardware Company had or claimed any interest in the Yellow Jack mining claim, or that its grantors had an interest upon which they failed to file an adverse claim. The pretended deed from the Butte Hardware Company to Schwab et al. was made December 27, 1884. The Butte Hardware Company acquired its title to the oneeighth interest in May, 1884. If the notice of application for patent had been admitted, it would have appeared that the Butte Hardware Company did not own an interest in the claim when advertisement occurred. But, it not being allowed in evidence, it nowhere ap

tiff is the lawful owner of the property described in the complaint; and that its title thereto is adjudged to be quieted against all claims of the defendants, or either of them. The decree further recites that, it appearing that said void deed made by Largey was used in the land office as part of a chain of title, and that by the use of that deed the land office had issued a receiver's receipt for the property described in that deed to Schwab, Cummings, Hauser, and Fitchen, and that that property belongs to the plaintiff, it is ordered that said four defendants execute and deliver a deed conveying to plaintiff the title to the property described in its complaint, which they acquired by virtue of the receiver's receipt. From this judgment the defendant Cobban appeals. The other facts are stated in the opinion below.

Chas. R. Leonard and E. W. Toole, for appellant. George Haldorn and F. T. McBride, for respondent.

DE WITT, J., (after stating the facts.) It is pleaded, it is adjudged by the court, it is not specified as error, and it is relied upon in argument on both sides, that the deed made by Largey, purporting to be the deed of the Butte Hardware Company, was and is void. We will therefore start with the foundation that that deed was a nullity. When that pretended deed was made, the Butte Hardware Company owned a one-eighth interest in the Yellow Jack mining claim. The deed, being to Schwab, Cummings, Hauser, and Fitchen, without describing the shares which the grantees were supposed to take, therefore purported to give Schwab and Cummings two thirty-seconds of the Yellow Jack mining claim. The deed being a nullity, Schwab and Cummings took nothing thereby. If that be true, Schwab and Cummings conveyed nothing to Cobban in October, 1889. This is clear enough, unless there is some estoppel.

It is contended that the Butte Hardware Company is estopped because it did not file in the United States land office an adverse claim (section 2326, Rev. St. U. S.) to the application for patent. But it does not appear

Butte Hardware Company, at the time of advertisement for patent, was an owner or claimant in the premises, or could thereby be estopped by virtue of not filing an adverse claim to the application for patent.

Again, is the Butte Hardware Company estopped from claiming its title in two thirtyseconds of the Yellow Jack mining claim by virtue of Cobban buying the two thirty-seconds interest from Schwab and Cummings, grantees in the pretended deed of Butte Hardware Company, to Schwab, Cummings, Hauser, and Fitchen, of December 27, 1884? Added to the fact that that was a void deed, absolutely, we are of opinion that Cobban was not an innocent purchaser for value. It sufficiently appeared that, before Cobban bought from Schwab and Cummings, he was informed that, if Schwab and Cummings had an apparent title to the two thirty-seconds interest on record, they had none in fact. Fitchen testified to this effect, although he was disputed by Cobban. Schwab and Cummings each deposed that he told Cobban that he had no claim to this two thirty-seconds interest. Cobban, however, said he would take a deed. He obtained quitclaim deeds from Schwab and Cummings. He paid five dollars for each,-a grossly inadequate consideration, under the evidence. Cummings deposed that Cobban promised to give him more if he got anything out of the claim. Under all these facts, it is apparent that Cobban was not an innocent purchaser for value, and that he had the amplest facts to put him on inquiry. Therefore, we arrive at this situation: By the receiver's receipt, December 30, 1884, whatever right passed from the United States (and we will call it a title, for the purpose of this decision) passed to Schwab, Cummings, Hauser, and Fitchen. But at that time the Butte Hardware Company owned one-eighth of the possessory title, as against Schwab, Cummings, Hauser, and Fitchen, and still owns it. These four persons concede this. Cobban disputes it. But his grantors are Schwab and Cummings. They concede it, and Cobban is in no position superior to them, because he is not an innocent purchaser for value. Therefore, every one-Schwab, Cummings, Hauser, and Fitchen, in fact, and Cobban, in effect-concedes that the first four