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M. BULLARD, for appellants.

SHOBER & LOWRY, for respondent.

No briefs on file.

WADE, C. J. This case was tried to a jury, at the July term, 1871, of the district court for Lewis and Clarke county, and at that term an order was made that judgment be entered upon the verdict. The judgment was not entered in pursuance of this order At the February term, 1872, of said court, the plaintiff made a motion asking that judgment be entered nunc pro tunc, and judgment was entered accordingly. From the order causing judgment to be entered nunc pro tunc, the defendants appeal to this court. The failure to enter judgment upon the verdict, in pursuance of the order therefor, was an omission or mistake of the clerk of court.

There was no error in the entry of the judgment nunc pro tunc. The court is master of its own records for the purpose of correcting clerical errors, and whenever a clerk of court fails to enter judgment as ordered by the court to do, the court can cause such judgment to be entered at any succeeding term, provided such entry does not interfere with or affect the rights of third persons, and no such rights are presented or appear in this case.

Judgment affirmed.

CORNELL, respondent, v. LATTA, appellant.

PRACTICE — oral notice of appeal. Section 370 of the Civil Practice Act requires a written notice of appeal, and an oral notice given in open court is insufficient.

Appeal from the First District, Gallatin County.

IN November, 1872, Latta appealed from the decision of the court, SERVIS, J. The facts are stated in the opinion.

PAGE & COLEMAN, for respondent.

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WADE, C. J. This was a case of forcible entry and detainer, tried before a justice of the peace, and appealed to the district court, and from thence appealed to this court. The respondent appears here and files a motion to dismiss. the appeal, for the reason that no motion of appeal was filed with the clerk of the district court, and no copy of such notice was served upon the adverse party or his attorney. Section 370 of the Code provides that the appeal shall be made by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same or some specific part thereof, and serving a copy of the notice on the adverse party or his attorney.

The notice of appeal herein, as disclosed by the record, was an oral notice, given in open court. This notice does not, in any respect, answer the requirements of section 370, before referred to, and for this reason the case is dismissed from this court.

Appeal dismissed.

INDEX.

ABANDONMENT.

Intention. The suspension of work upon a ditch, from July, 1865, to August,
1866, was not an abandonment, if there was no intention to abandon the
same. Atchison v. Peterson, 561.

ACCOUNT STATED.

See PLEADING, 14.

ACTION.

1. Undertaking on appeal— liability of sureties - defense to action. If the sureties
in a written undertaking on appeal agree to pay a judgment that has
been rendered in the district court, if the same should be affirmed by the
supreme court of the Territory, an action can be brought against one of the
sureties when the judgment has been so affirmed; and in this action, the
facts that an appeal has been properly taken from the supreme court of the
Territory to the supreme court of the United States, and that proceedings
have been legally stayed on the judgment, do not constitute a defense.
Bullard v. Gilette, 509.

2. Undertaking on appeal — void judgment for deficiency. An action for the
non-payment of a judgment cannot be brought upon an undertaking on
appeal, providing for the payment of any deficiency arising upon the sale
of mortgaged premises, if no judgment for such deficiency was rendered
in the original suit. Creighton v. Hershfield, 639.

See ADMINISTRATOR; ILLEGAL FEES; REPLEVIN; SHERIFFS' RETURN;
TERRITORIAL WARRANTS, 5.

ADMINISTRATOR.

Carhart v. Montana:Mineral

An administrator cannot maintain an action of ejectment for the possession of
realty, or trespass for damages to the same.
etc. Co., 245.

ADULTERY.

See CRIMINAL LAW, 4.

AFFIDAVIT.

See ATTACHMENT.

'

AGENCY.

See PRINCIPAL AND AGENT.

AGENT.

Declaration of-authority. The declaration of an agent of a corporation,
respecting his authority, is hearsay testimony. Brown v. G. & S. G. & S. M.
Co., 57.

See PRINCIPAL AND AGENT.

AGREEMENT.

1. Situation of parties. The situation of the parties to an agreement can be con-
sidered by the court to ascertain the meaning of the instrument. Creighton
v. Vanderlip, 400.

2. Waiver of condition. An agreement cannot be rescinded by the failure of a
party to perform a condition which has been waived. Davis v. Germaine, 210.
See CONTRACT TO PAY GOLD DUST; PRACTICE, 43, 44; STATUTE.

AGREEMENT FOR BUYING LAND.

How rescinded-purchase-money. Neither the vendor nor vendee can rescind
a written agreement for the purchase of land, if the buildings thereon,
which were not the chief inducement to such purchase, are destroyed by
fire, without any fault of the vendor. The vendee cannot recover the por-
tion of the purchase-money which he paid the vendor on the agreement
before the fire occurred. Bautz v. Kuhworth, 133.

AMENDMENT.

See PRACTICE, 21, 88-90

APPEAL BOND.

To the Supreme Court of the United States, 279.

APPEAL.

See ACTION; PRACTICE, 1, 37, 38, 63, 74; RECEIVER.

APPEARANCE.

See PRACTICE, 14, 15, 26, 36.

APPROPRIATION OF PAYMENT.

See MECHANICS' LIEN, 1.

APPURTENANCE.

See EVIDENCE, 6; GRANT.

ASSAULT AND BATTERY.

Liability of parties. In an action to recover damages for an assault and battery
the defendants are jointly and severally liable. Daily v. Redfern, 467.

See PLEADING, 17, 18.

ASSAULT WITH DEADLY WEAPON.

See CRIMINAL LAW, 1.

ASSIGNMENT.

See MECHANICS' LIEN, 4; MORTGAGE, 2.

ATTACHMENT.

1. Dissolution of. The defective statement of a cause of action in the plead-
ings is not a ground for dissolving the attachment. Cope v. W. M. M. & P.
Co., 53.

2. Affidavit. An affidavit for an attachment, which sets forth that the amount
is due "upon in part of both an express and implied contract," without
specifying how much is due upon each contract, is sufficient; but this affi-
davit is not a model of pleading. Ib.

3. Attachment law remedial. The attachment law is a remedial statute, and
must be liberally construed. Ib.

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