(5 Mont. 556) SUPREME COURT OF MONTANA. GRAVES v. NORTHERN PAC. R. Co. Filed January 7, 1885. RAILROAD COMPANIES-KILLING OF STOCK - CONSTITUTIONALITY OF MONTANA STATUTE-TRIAL BY JURY. In the act of the legislature of Montana entitled “An act to provide for the payment of stock killed or injured by railroads," the clause, "the findings of such appraisers shall be taken and held to be conclusive evidence of the value and ownership of and the injury to such stock," prevents the railroad company from exercising its rights of appeal from the findings of the appraisers, thus depriving it of the right of trial by jury. Such a provision is in conflict with the constitution of the United States and therefore invalid. Appeal from Third district, Meagher county. George F. Cowan, for respondent. GALBRAITH, J. This action was originally brought in the justice court of Meagher county. The pleadings were as follows, viz.: The complaint, after alleging, in substance, that the appellant is now, and was at the time of the injury complained of, a corporation organized under the laws of the United States, and the owner of a certain railroad running through the territory of Montana and a portion of Meagher county, in said territory; and that the respondent was the owner of a certain mare of the value of $160, running in an inclosure adjoining the track and ground occupied by the railroad of the appellant in the county of Meagher; and that on or about the seventh day of October, 1883, without the fault or neglect of the respondent, the said mare strayed upon the ground occupied by the railroad of the appellant; and that the appellant, at the time and place above stated, so carelessly and negligently run its locomotives and cars that the same ran over the mare and killed her, to the damage of the respondent in the sum of $160,— contains the following averment: "That heretofore, to-wit, on the twelfth day of October, 1883, at the said county of Meagher, and before the bringing of this action, under and by virtue of an act passed by the legislature of the territory of Montana, approved February 23, 1881, entitled 'An act to provide for the payment of stock killed or injured by railroads,' and an act amendatory thereto, approved March 2, 1883, this plaintiff having made and filed the necessary affidavits, and having duly served notice upon said defendant, and the necessary appraisers having been appointed to appraise the value of said mare, which valuation was duly assessed and returned by said appraisers to said defendant, fixing the value of said mare at the said sum of one hundred and sixty dollars, has complied with the provisions of the aforesaid act and the amendment thereto; that since the due return of the aforesaid appraisers more than thirty days have elapsed before the bringing of this action, and the said defendant has not paid the said sum of one hundred and sixty dollars, or any part or portion thereof." The answer was, in substance, as follows: It "denies that the respondent was the owner of the mare, or that she was of any greater value than eighty dollars; or that it was through the negligence of the appellant that she was killed, or that she strayed upon the railroad without the fault of the respondent. It affirmatively alleges that the animal was killed through the fault and negligence of the respondent, in permitting it to depasture in a field through which the appellant's road runs, which was not fenced so as to prevent it from straying upon the track, and that it was while the appellant was carefully operating its road, and running locomotives and cars thereon, as it might lawfully do, that the animal strayed upon the track of the appellant, and in consequence thereof, and without the fault or negligence of appellant, was accidentally run over and killed." The replication denied that the animal was killed through any negligence of the respondent. It admits that the inclosure was not fenced at the railroad, and that the animal strayed from such inclosure upon the track. It avers that said mare was rightfully pastured there, and strayed upon the track without any fault, omission, or neglect of the respondent, and was killed and destroyed through the want of care and negligence of said defendant in the operating and management of its said locomotive and cars, and that she was of the full value of $160, as alleged in the complaint. * Judgment was rendered in the justice court against the appellant and in favor of the respondent for the sum claimed in the complaint, and the costs of suit. From that judgment there was an appeal to the district court, which, upon motion of the respondent for judgment on the pleadings for the sum claimed in the complaint, rendered judgment for said sum, with costs. From this judgment there is this appeal. The questions presented relate to the validity of the act of the legislature mentioned in the complaint. The provisions of this law, necessary to be stated, are as follows: The first section of this act makes railroad companies, operating any railroad in the territory, liable for damages for damaging or killing any domestic animal by running its engines or cars over or against said animal. The second section was amended so as to read as follows: "If the owners of the animal or animals so killed, or his or her authorized agent, shall make affidavit before some officer, authorized to administer oaths, that he or she was the owner, or authorized agent of the owner, of the recorded brand found upon the animal or animals so damaged or killed, at the time of such killing or damaging, and such person shall, within six months after such killing or damaging, deliver such affidavit to the agent, or an officer of such company or corporation, or shall make affidavit that the animal damaged or killed as aforesaid had no recorded mark or brand, and that he or she is the owner of such animal, describing it; and the corporation or company shall pay to such person delivering such affidavit, or such affidavit last as aforesaid, as follows: "Milch cows, thoroughbred and graded cattle and sheep, shall be paid for at their cash value: provided, that no railroad company shall, at any time, be required to pay more than the market value of any animal killed or dam v.6p,no.1-2 aged. Horses, mules, and asses shall be paid for at their cash value. In all cases where such railroad company or corporation shall kill any of the stock mentioned in this act, and for which no price or sum is fixed, the owner or agent of such stock shall, after the filing of such affidavit of ownership as aforesaid, select some disinterested freeholder of the county where such killing took place, and shall notify such company or corporation of said selection; and such company or corporation shall, within three days thereafter, select some suitable person to act with the person so selected, and the two so selected shall select a third, and the three so selected shall, without delay, proceed to appraise the value of the stock so killed, a majority of which three appraisers shall be sufficient to determine the same, and shall certify, under oath, such appraisement to an agent of such company or corporation. In case such railroad company or corporation shall refuse or neglect to appoint such appraiser, it shall be the duty of the justice of the peace nearest to the place in the county where the stock is so killed, to select one disinterested person as appraiser, and to administer to him an oath to honestly appraise the value of such stock, which appraiser shall, without delay, proceed to act in conjunction with the person selected by the owner, and they shall at once proceed as hereinbefore provided for them as appraisers; and such railroad or corporation shall, within thirty days after the receipt of certificate, pay to the owners of such stock so killed, or his or her agent, the amount of such appraisement, together with all the costs, as aforesaid; and in all cases where the value of such stock is established by this act, such company or corporation shall pay for such stock within thirty days after the delivery of the affidavit of ownership of stock, as hereinbefore provided; and if said company or corporation shall fail to pay for said stock within the time as herein before provided, the owner of such stock may commence proceedings in any court of competent jurisdiction for the amount found to be due and owing for such injured or killed stock; and the findings of such appraisers shall be taken and held to be conclusive evidence of the value and ownership of and the injury to such stock; and the court shall add and tax as costs in the action the costs of the proceedings upon the appraisement hereinbefore specified." It will be observed that the animal alleged to be killed in this case did not belong to any of the classes set forth in the above schedule. Also, that the pleadings show that before the commencement of the action the respondent had complied with the provisions of the above law relative to the appointment of appraisers, and that said appraisers had assessed the value of the animal alleged to be killed, and fixed the value thereof at $160. The section of the law under which the appraisers were appointed, provides that "the findings of such appraisers shall be taken and held to be conclusive evidence of the value and ownership of and the injury to such stock." The court, in rendering judgment upon the pleadings, must have done so in pursuance of this law, for the value of the animal alleged in the complaint was denied in the answer. This law prevents the railroad company from exercising its right of appeal from the findings of the appraisers, thus depriving it of the right of trial by jury. This provision of the law in relation to the appointment of appraisers is not in accordance with the constitution and laws of the United States, and is therefore invalid. Their act, therefore, in fixing the value of the animal killed was unauthorized. That the law is invalid in this respect is virtually admitted in the argument for the respondent. This is suffi cient for the disposal of this case, and renders unnecessary the consideration of the other question presented, viz., "the making of railroad companies liable for stock they may kill, irrespective of negli gence." The judgment is reversed, with costs, and the cause remanded for a new trial. (5 Mont. 566) FOSTER and others v. HAUSWIRTH. Filed January 10, 1885. EXECUTION SALE-MOTION TO VACATE JUDGMENT AFTER SALE. When, by virtue of a judgment, real estate has been sold, and the rights of third persons thereby have intervened or additional rights been created, the judgment cannot be disturbed except by a proceeding in equity. Appeal from Second district, Silver Bow county. Robinson & Stapleton, for appellants. William H. De Witt, for respondent. WADE, C. J. This is an appeal from an order vacating and setting aside a judgment. On the tenth day of March, 1883, the complaint in the action wherein the judgment was rendered, was filed, and a summons duly issued, which was returned as duly served on the defendant on the twenty-fourth day of the same month; and on the fifth day of the following April the clerk, on application of the plaintiffs' attorney, entered a default and judgment against the defendant for the amount claimed in the complaint. On the twenty-sixth day of April, 1884, the defendant made a motion at chambers to set aside and vacate said judgment, which motion was set for hearing on the first day of the ensuing term of the district court for said county; and at the October term, 1884, of said court, said motion to vacate and set aside. said judgment was granted, and said judgment vacated and set aside. It appears, by the affidavits in support of the motion to vacate the judgment, that, immediately after the rendition of the judgment, an execution was issued thereon, pursuant to which certain real estate belonging to the defendant was sold by the sheriff, the plaintiff becoming the purchaser thereof. The period of redemption having expired, and the sheriff being about to execute a deed to the purchaser for the real estate so sold, the defendant commenced this proceeding by motion to set aside the judgment, and caused the sheriff to be enjoined from the execution and delivery of said deed. The return of the sheriff shows that the summons was served on the defendant on the twenty-fourth day of March, which was Saturday, but the affidavits filed in support of the motion conclusively show that the summons was served on the defendant on the twenty-fifth day of March, which was Sunday. Whether a summons could be lawfully served on that day or not we do not now wish to inquire. By the return of the sheriff it appears that the summons was duly served on a lawful day, and the judgment, by the record, is in every way a correct and a valid judgment. Besides this, real estate has been sold by virtue of the judgment, and the rights of third persons have intervened, or, at least, additional rights have been created thereby. In such a case a judgment cannot be disturbed, except by an equitable action for that purpose, in which there may be an adjudication between proper parties as to the validity of the judgment, and as to whether the party applying for relief has a meritorious defense to the same, and that he has not lost his right by delay, or in any other manner. This case is to be distinguished from those in which the judgment is simply void, and where no property has been sold under it, and no rights have intervened or come into existence by virtue of such sale. The order vacating the judgment is hereby set aside, but the injunction restraining the execution of the deed by the sheriff to the purchaser is hereby continued in full force until the defendant has an opportunity to bring an action to test the validity of said judgment. (5 Mont. 568) INTER-MOUNTAIN PUBLISHING Co. v. JACK. 1. CORPORATION INCORPORATION. Filed January 12, 1885. SUBSCRIPTION TO STOCK-ACTION ON PROMISE MADE BEFORE The signing an agreement to take and pay for a certain number of shares in a corporation yet to be formed, and to pay the assessments whenever they should be ordered, is a contract, and the payment of the money and acceptance of the shares is such a recognition of the contract by the signer as estops him from denying the power of the corporation to enforce assessments by suits on stock subscribed for before its incorporation. 2. SAME ESTOPPEL-PAYMENT OF ASSESSMENT. The payment by a stockholder of an installment, without objection, is a sufficient recognition of the legal existence of the corporation to enable it to recover from him subsequent assessments. Appeal from Second district, Silver Bow county. Stephen De Wolfe, for appellant. Knowles & Forbis, for respondent. The COBURN, J. This is an action brought by the Inter-mountain Publishing Company to recover the amount of two assessments made by the company against the defendant as one of the stockholders. defendant demurred to the complaint. The demurrer was overruled, and judgment rendered in favor of the plaintiff for the sum of $400, the amount of the two assessments. The defendant appeals to this court. It appears by the complaint that the plaintiff is, and has been for some time past, a corporation organized under the laws of MonThat in contemplation of the incorporation of said company, and of establishing and conducting its business, the defendant, with others, on or about the sixteenth day of March, 1881, became a subscriber to the stock of said corporation by signing and delivering an agreement in writing as follows: tana. |