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tlers upon land traversed by its roadbed is pany had built its railroad and was operatconcerned. In this case the line of the rail ing it as a part of a great interstate system road was located October 30, 1880, and the between Kansas City and Birmingham, Ala. road was built in 1882. No homestead entry The map showed that the railroad was locatwas made on the land until after the con ed over the land in controversy, and plaintiff struction of the road, and the final proof had been on the land, employed and aided of defendant in error, Jones, was not made in building defendants' railroad thereon. He, until about 10 years afterwards, when he pro of all men, could not be ignorant of the locacured the relinquishment of a homestead tion of the road and the claim of defendentry of one Ella Sharp, made March 7, 1883. ant. After Simpson's homestead entry was It will be seen that neither the right of Jones canceled in March, 1881, this plaintiff made as a homestead entryman or any right he a homestead entry of this land with full may have acquired through the relinquish- knowledge of the construction and operation ment of Ella Sharp reached back to the date of the railroad thereon." of the construction of the road, and the Su The case of Kinion v. K. C., F. S. & M. R. preme Court holds that the actual construc R. Co., 118 Mo. 577, 24 S. W. 636, is not aption of the road was notice to the homestead plicable to the case at bar, for the reason that entrymen, which precluded them from acquir the court expressly found that: “* * * ing any title by homestead entry to the right It is an undisputed fact that plaintiff knew of way occupied by the railroad company. the road had been located across this land, The decision in that case does not take into the right of way acquired, and the work of consideration two pre-emption contests made the construction of the road commenced, on the land prior to the construction of the when he made his homestead entry. He road, probably because the defendant in er therefore made his entry subject to all of the ror, when he made final proof, was not a rights of the company.' successor in interest to either of them, and In the case of Roberts v. Northern Pacific the right of such pre-emption entrymen had Railroad Company, 158 U. S. 9, 15 Sup. Ct. expired under his homestead entry. Under 756, 39 L. Ed. 873, the company acquired tithese circumstances, the determination of the tle by purchase, and expended large sums of Supreme Court that the railroad company's money upon the land. The court held: “The title to its right of way was superior to the railroad company having acquired title from title of Jones, under his homestead entry, is the owner, a subsequent purchaser from the not an authority applicable to the facts of owner, long after the company had entered the case under consideration.

upon visible and notorious possession under The case of Bonner v. Rio Grande R. R. a valid contract, for a valuable consideration, Co., 31 Colo. 446, 72 Pac. 1065, has no appli- could not maintain either trespass or ejectcation to the facts in the case at bar, for the ment; nor would he, as such purchaser, be reason that the original locators of the min entitled to recover damages for the occupaing claim had granted to the railroad a right tion of the land, because, under the present of way across the claim, and afterwards claim, the benefit would go to a private parabandoned the claim. The case only deter- | ty who bought with the knowledge of the mines that after the abandonment, and after county's previous sale, and who admits that the construction of the railroad, a relocation he secured his own grant for a grossly inadeof the claim was subject to the railroad ease quate consideration because of the fact of ment. There was no contest in reference to such previous sale." the mining claim, but, if there had been, it A careful examination of the authorities could have made no difference with the re cited discloses material and controlling facts sult, because of the grant of the right of way in each case which do not exist in the case by the original locators, and because there is at bar. As the successful contestant, Kepno provision of law granting the preference hart, secured a preference right to the land, right to the successful contestants of a min and his admitted compliance with all the ing claim over any other occupant of the requirements of the law to preserve that land.

right, precludes the company from taking its In the case of Alexander v. K. C., Ft. Smith right of way under the act of 1875, and it & Memphis Company, 138 Mo. 461, 40 S. W. must now respond in damages to the plaintiff. 104, the right of way had been purchased For the reasons above stated, the judgment from Simpson: "The defendant company ac of the district court will therefore be afquired a right of way of Simpson, and enter firmed. ed and built its road; but Simpson never perfected his title to the homestead, and HAINER and IRWIN, JJ., concurring. nerer obtained his patent, but abandoned GILLETTE, J., having tried the case below, the land, according to the weight of the not sitting. BURFORD, C. J., and BURevidence, some time in 1882, after the com WELL and PANCOAST, JJ., dissenting.

(36 Mont. 39)

RUMPING V. RUMPING. (Supreme Court of Montana. Oct. 21, 1907.) 1. APPEAL-REVIEW-WANT OF JURISDICTION IN TRIAL COURT.

The objection that a complaint does not allege a fact essential to confer jurisdiction may be urged for the first time on appeal. 2. DIVORCE-JUDICIAL REMEDY STATUTES.

The power of courts to grant a divorce is statutory.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 17, Divorce, 8 1.] 3. SAME – JURISDICTION RESIDENCE OF PLAINTIFF.

Where the Legislature declares that a divorce must not be granted unless plaintiff has been a resident of the state for a specified time next preceding the commencement of the action, the trial court must inquire into the jurisdictional facts, and be governed accordingly. 4. SAME-PLEADING.

Under ('iv. Çode, $ 176, providing that a divorce must not be granted unless plaintiff has been a resident of the state for one year next preceding the commencement of the action, the fact of plaintiff's residence is jurisdictional, and must be alleged in the complaint.

[Ed. Note.--For cases in point, see Cent. Dig. vol. 17, Divorce, $ 287.]

Appeal from District Court, Yellowstone County; Sydney Fox, Judge.

Suit by John H. Rumping against Eva Rumping. From a decree for plaintiff, defendant appeals. Reversed and remanded.

Edward Horsky, for appellant. 0. F. Goddard, for respondent.

mencement of the action." If the allegation of plaintiff's residence is jurisdictional in its nature, the objection can, of course, be urged for the first time in this court. Our research has discovered the case of Dutcher v. Dutcher, 39 Wis. 651, which appears to be authority for the action of the trial court in holding that the pleadings do not raise the issue of plaintiff's residence. The opinion is by Chief Justice Ryan, and for that reason is entitled to the respectful consideration of courts, and, viewed in the light of the rules of both common-law and Code pleading, seems unanswerable on that point. The divorce statute of Wisconsin at the time read as follows: "No divorce shall be granted unless the petitioner or plaintiff shall have resided in this state one year immediately preceding the time of exhibiting the petition or complaint," etc. Rev. St. Wis. 1858, c. 111, § 12. The court said: “But the question remains whether the pleadings raise the issue of her (plaintiff's) residence. Her want of residence under the statute is clearly a personal disability, not affecting the present right of action, but only the present right to prosecute the action, a disability which might be cured ; clearly matter of abatement, not of bar." Story's Equity Pleading, $ 708, is then quoted as follows: "All declinatory and dilatory pleas in equity are properly pleas, if not in abatement, at least in the nature of pleas in abatement, and therefore, in general, the objections founded thereon must be taken ante litem contestatam by plea, and are not available by way of answer, or at the hearing." And 1 Chitty's Pleading, 416, as follows: “Whenever the subject-matter of the defense is that the plaintiff cannot maintain any action, at any time, whether present or future, in respect of the supposed cause of action, it may and usually must be pleaded in bar; but matter which merely defeats the present proceeding, and does not show that the plaintiff is forever concluded, should in general be pleaded in abatement.” The court then proceeds: "So Lord Redesdale distinguishes pleas 'that the plaintiff is not entitled to sue by reason of some personal disability,' and that 'the plaintiff has no interest in the subject, or no right to institute a suit concerning it,' from pleas in bar, and calls them pleas to the person of the plaintiff. And the distinction is not one of form merely, but of substance; for generally judgment for the defendant on pleas in abatement abates the action only, on plea in bar, bars the cause of action everywhere and forever. In the present case judgment against the respondent for want of residence within the statute should not operate to bar another action here, if she should have acquired a residence, or elsewhere, at any time or under any circumstances.

* If certain matters in abatement are apparent in the complaint, they are ground for demurrer under the Code. But if matter in abatement, not apparent in the complaint,

SMITH, J. This is an action for divorce, appealed from the district court of Yellowstone county. The cause of action is based on the alleged desertion of the plaintiff by the defendant. The complaint fails to allege that the plaintiff has been a resident of this state for one year next preceding the commencement of the action, as required by section 176 of the Civil Code. The only pleading on the part of the defendant is an answer, in which she denies generally all of the allegations of the complaint, except those of marriage and birth of issue. The defendant failed to appear at the trial. Evidence was offered by the plaintiff, whereupon the court found all of the allegations of the complaint to be true and entered a decree dissolving the marriage. Defendant appeals.

The cause was presented to this court without argument, and we have received no assistance from the briefs of counsel; the appellant submitting the bald statement that the judgment should be reversed, and the re. spondent contending that it should be affirm. ed. The question involved is a new one in this jurisdiction, and not as easy of decision as the failure of counsel to examine the same would seem to indicate. It is also an interesting one from a lawyer's standpoint. Section 176 of the Civil Code, supra, reads as follows: "A divorce must not be granted unless the plaintiff has been a resident of the state for one year next preceding the com

91 P.-67

be relied on as a defense, it must be specially ly statutory. Irwin v. Irwin, 3 Okl. 1895, pleaded in the answer. A general denial is a 41 litr. 30.). When, therefore, the Larislajulea in bar, not broalier at least than the gen ture, in conferring upon courts the jurisdiceral issue at colimon law, and cannot raise tion to grant divorces, Siiris, in the same startany defense bir way of abatement. * * * ute, that a livoree must not be granteil unless Judgment for the defendant upon a general, the plaintiff has been a lisiilent of the state denial is a general judgment-a bar to all fu for one year next preceding the comme'llyfture actions for the same cause. And it ment of ile iletion, we believe it mearit just would be a cruel abuse that it should go upon what it said, :und that tri:l courts, ils (hief a defense in abatement concealed in gremio. Justice Ryan remarked, should ex officio inThe Code intended no such perversion of jus : quire into the jurisdictional facts, and be tice. And it is well settled in this court that governed accordingly. In Greller r. Gredior. matter in abatement, not apparent in the

36 Fla. 372, 19 South;. 702, the court sid: complaint, must, like other special defenst's. "The complainant had wholly failed to allege be specially pleaded in the answer. * * * in his will, or to prove that he had resite! The appellant contends that the defense here in this state for two years prior to the exis in the nature of a plea to the jurisdiction.

hibition of his bill.

The fact of the We do not think so, but need not discuss the aplicant's prior residence for two years in point; for, by all the authorities, the rule this state was necessary both to be allered equally applies to pleas to the jurisdiction, in the bill and established by proof, before which, if not strictly pleas in abatement, are the courts were authorized to grant il divorce in the nature of pleas in abatement. * * * under our statute." The Supreme Court of The defense, therefore, that the respondent

California, in Bennett v. Bennett, 28 Cal. 600, was not a resident of the state, though well used this language: “But over and beyonel founded in fact, was inadmissible under the this, residence is palpably within the mispleadings in this case." However, notwith chiefs against which it was the object of tle standing the foregoing conclusion, the court statute to guard, and therefore it must be reversed the judgment on grounds of public proverl. Should the judgment in this case policy, saying, among other things: "It con

be affirmed, the affirmance would be but it cerns the public welfare that the state should letter of invitation to the married, domiciled not be made a free mart of divorce for stran abroad, who have, with or without reason, gers, and that, amongst her own people, di became emulous of divorce, to take a trip, one vorce should not become matter of free will or both, to this state for the purpose of avoidas much as marriage a personal right inde ing delays, or yet more serious impediments pendent of public right and inconsistent with at home, with the intention to return thereto public welfare. Divorces without the letter as soon as the purpose of their coming shall and spirit of the statute in fact, but made to

have been hurried to accomplishment ly the look within it by design or mistake or acci

aid of an accommodation answer admitting dent, are frauds upon the statute and offenses the averment of a six months' residence on against public policy. And it is the duty of

the part of the applicant. Against this prosthe courts ex officio to look closely into ac

titution of the judicial power, the statute intions for divorce, and to direct inquiries into terposes the only available barrier by requirthe facts, when necessary, and finally to deny

iny, as we construe it, not only that the all divorces which would be abuses of the causes of divorce should be proved to the statute." If we found it requisite, in order

court, but the residence of the applicant also, to protect the interests of the state, to reverse

as the sole ground on which it can take this case on grounds of public policy, it cognizance of the question.” In Powell v. would not be necessary to go beyond the deci

Powell, 53 Ind. 513, it was held that, where sion of this court in the case of Bordeaux v.

the residence of the petitioner was not proved Bordeaux, 32 Mont. 159, SO Pac. 6, where the as required by the statute, the court huud no subject is reviewed very thoroughly in an power to decree a dirorec. ('nder a statute opinion by the present Chief Justice.

very similar in its plıraseology to our own, There is, however, in the books another the Supreme Court of Minnesota held, in line of cases, which hold that a failure to Thelen r. The]»n, 75 Jinn. 133, 78 V. W. allece and prove the residence of the plaintiff 108, that the is. I of the plaintiff's residence within the statute renders the decree a mere

was jurisdictional, and must be alleged in mullity, for the reason that the court has no

the complaint. In Lucev. Luce, 1.5 Wash. power to grant a divorce unless this provision COS. 17 l'ac, 21, the plaintiff was unable to of the statute is complied with. We are in prove his residence for the statutory period clined to think this the better and more satis- of time, and the court held that he had failfractory line of authorities upon which to rest : el to prove a fact necessary to entitle him our judgment, and to hold that statutes such to any relief. The Supreme Court of TeXils.. as our's were designel to and do abrogate in Harmond r. Ilaymon, 74 Tex. 414. 12 S. any rule of leading in conflict with the W. !90, said: "When the tillits required to statutory prolibition. It is elementit ry, oť ! mist by our statutes are not estallisel biy course, that neiilier courts of lil or equity th! prill110, 1 (!(lees of divorce should be have any inliert wier to dissolve 11:1r reuse." SAR. :130, Prie V. Pearre, 132 riage. The power to derlle a divorce is pure- ili!. :1, 31 Sruth. $.7, 90 12. St. Rel. 901;

1

Johnson v. Johnson, 93 No. App. 329, 6S S. legations of the complaint, and then allege W. 971; Hopkins v. Hopkins, 33 N. H. 474; that on or about the 3d day of March, 1907, 14 Cyc. 663.

the note was fully paid, satistieil, and disThe decree entered in this case by the dis- charged. Upon this allegation there was istrict court of Yellowstone county is reversed, sue by reply. At the trial counsel for plainand the cause remanded for a new trial.

tiff, after having it identified, introduced in Reversed and remanded.

evidence the note, with the indorsements

thereon, showing payments of interest to the BRASTLY, C. J., and HOLLOWAY, J., amount of $260.68, and, upon stipulation with concur.

counsel for defendants that the question of

attorney's fees should be determined by the (30 lont. 13)

court, resteil. Thereupon the defendants in

troducell evidence tending to show that prior MCCAULEY V. DARROW et al.

to March 3, 1.90., the defendant M. B. Dar(Supreme Court of Montana. Oct. 21, 1907.)

row and the plaintiff and her husband, N. 1. TRIAL-IXSTRICTIOys - CONSTRUCTION OP M. Mo cauley, had had several business transCHARGE AS A WHOLE-BILLS AND YOTES. actions with each other, during the course of In an action on a note, instructions that,

which defendant Melinda E. Darrow and Mcif the preponderance of the evidence showed that the not: had not been paid, plaintiff could

Cauley berame owners as tenants in common recover, and that, if it appeared in the same of residence property in Lewistown, Fergus was that payment had been made. the verdict | county, for which they had paid $6,500. In should be for defendant. were not improper as placing the burden on plaintiff to show nonpay

this transaction of purchase Melinda E. Darment, and for failing to instruct what the jury

row had become indebted to McCauley for should do if the evidence were evenly balanced, borrowed money to pay in part for her interwhere other instructions stated that the burden was on defendant, and that plaintiff's posses

est in the property to the amount of $1,250). sion of the note was prima facie evidence of

represented by a promissory note hearing 10 nonpayment.

per rent. interest. Darrow himself was in[Ed. Yote.--For cases in point, see Cent. Dig. debted to McCauley to the amount of $2,710 vol. 46, Trial, $$ 703–717.)

for borrowed money. This was also repre2. BILLS AND NOTES-PAYMEXT-Evidexce. sented by a promissory note bearing 10 per

Where an action on a note was defended cent. interest. Darrow and his wife were on the ground it was discharged, with other debts, by a conveyance to plaintiff, made in

further indebted to the plaintiff in the sum pursuance of an agreement for discharge in this of $2.000, represented by the note in suit. manner, evidence as to the value of the proper Interest was due on these various obligaty, offered to show the reasonableness of defend

tions amounting to several hundred dollars. ant's claim, could not be a basis for a partial recovery for plaintiff, if the jury found that the Darrow and his wife had been ocupying the value of the property did not equal the full property in Lewistown, but had paid no rent to amount of the note. but only a part thereof. McCauley. In the meantime they had ex

Appeal from District Court, Fergus Coun- | pendel about $1,000 in the way of repairs ty; E. K. Cheadle, Judge.

and improvements. On March 3, 1903, the deAction on a note by Julia E. McCauley

fendant M. B. Darrow and the McCauleys against M. B. Darrow and another. From a

had a settlement of their affairs, the result judgment for defendants and an order deny.

of which, it is admitted by all parties, was a ing a new trial, plaintiff appeals. Affirmed.

conveyance by the Darrow's to WeCauley of

the Lewistown property, in consideration of Blackford & Blackford, for appellant. 0. the cancellation by the Metauleys of all W. Belden and H. L. De Kalb, for respond the mutual indebtedness between the parties, ents.

with a release of the securities held for the

$1,250 and the $2.710 notes, except the note BRANTLY, C. J. This action was brought in suit. The controversy in the pridence at to recover the amount due upon a promissory the trial was whether this note was also note for the sum of $2.000, made and deliv included in the settlement, and thus dischargered by the defendants to the Bank of For eil: the clefendants claiming that it was, but gus County on September 11, 19903, due four that it had not been surrenderne by plaintiff months after that date, with interest at the because it had been left by her at the Bank rate of 10 per cent. per annum, with reason of Fergus County for safe-keeping. Arcoroable attorney's fees, and assigned to plaintiff. ing to their contention, she was to cancel and Inter alia, the complaint alleyes that no part surrender it as soon as she could get it from of the principal sum or interest due upon the the bank. The defendants had rorelirt and note has t:een paid, except the sum of $200.018, jud ment. The plaintiff has appaleil from which discharged the interest due up to Jan the judgment and an order denying her a uary 11, 1990.). Jugment is demandel for new trial. the primipal sum and for interest due they The only question submittee is whether the on from the last-mentionel date, anil for court orrel in its charge to the jury. Paril$204) is reasonable attorney's fees. The le grapes 3:1!111 t are the followins: ";} The fenalants, answering, idilmit the execution 11 issile for the jury in this case to decide is delivrry of the note to the bank ind its is. I her or not the said promissory note was signment to plaintiff, deny all the other ill paid. If you believe from a prefonilerance

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of all the evidence that the note has not been ferred that the averment of nonpayment in paid, it will be your duty to find a verdict the complaint must have been established by for the plaintiff in the sum of $2,000, with a preponderance of the evidence, and that in interest thereon from the 11th day of Jan case of an equipoise on this issue the de uary, 1905. If, on the other hand, you be fendants should recover. But in instructions lieve from a perponderance of the evidence 7 and 8 the court distinctly told the jury that the said note has been paid by the de that the only issue in the case was whether fendants to the plaintiff, it will then be your the note had been included in the settlement duty to find for the defendants. (4) The gist of March 3, 1905, and thus discharged, and of this action is the question whether or not, that the burden was upon the defendants on or about the 3d day of March, 1905, the to establish this fact by a preponderance of plaintiff entered into an agreement with the the evidence; otherwise they should find a defendant M. B. Darrow that the promissory verdict for the plaintiff. And in the ninth note for $2,000, on which this action is based, instruction the jury were further told that should be included in the agreement made be- plaintiff's possession of the promissory note tween N. M.: McCauley and the defendants sued on was to be considered by them as on that date, and should be satisfied by the prima facie evidence that it had not been conveyance to the said N. M. McCauley of an paid. In view of this condition of the inundivided one-half interest in the residence structions, and in view of the further fact situated at the corner of Main street and that the verdict was for the defendants, Eighth avenue, in Lewistown, Mont. If you we do not think that the jury was misled by believe from a preponderance of all the evi instructions 3 and 4, either because of the dence that this note was included in the said form of the statement therein, or because agreement, and was to be satisfied by the said the court omitted to state what the jury · conveyance, then it is your duty to find for should do in case they found the evidence to the defendants in this action. If on the other be evenly balanced on the issue of payment. hand, you believe from a preponderance of During the course of the trial, the defendthe evidence that the said note was not in ants introduced evidence tending to show cluded in the said agreement, and was not the value of the property in Lewistown; the satisfied by the said conveyance, then it is

purpose being to furnish foundation for an your duty to find for the plaintiff."

inference that the claim of the defendants It is argued that, while it was necessary that the settlement by which this property for the plaintiff to make the allegation of

was conveyed to McCauley, in consideration nonpayment in order to show a breach of the of the cancellation of all the claims held by contract, it was not incumbent upon her McCauley and the plaintiff against the de to prove this negative averment, but that fendants, was a reasonable one, under all the burden of pleading and proving payment the circumstances. Upon the effect that they rested upon the defendants. The complaint should give to this evidence, the court inis that these instructions are erroneous, in structed the jury as follows: "This testithat they cast the burden of proving non mony has been admitted, and should be conpayment upon the plaintiff. Counsel support

sidered by you, only so far as it relates to their contention by reference to several the reasonableness or unreasonableness of cases which discuss the question whether it

the agreement alleged by the defendants to is incumbent upon the plaintiff to allege in have been entered into by and between them his pleading the fact of nonpayment and and the plaintiff on or about the 3d day of sustain it by proof at the trial, or whether

March, 1905.” Instruction No. 6. It is arthe defendant must plead payment as a gued that this instruction is erroneous in special defense and sustain the burden of

thus limiting the effect of this evidence. It proving it. We shall not venture upon an is said that, if it appeared from this evidence examination of this question. Under the

and that offered in rebuttal on the same view we take of the case, it is not neces subject by the plaintiff, that the value of this sary, for, assuming that plaintiff's conten

property was not equal to the full amount of tion is sustained by the weight of authority, all the potes with interest, but was sufficient we think the court clearly and distinctly to pay them in part only, the court should cast the burden of proof upon the defend have instructed the jury to find a verdict for ants. Whether they sustained it is a ques such part of the amount of the note in suit tion not before us, for the reason that no as was not paid by the conveyance of the complaint is made that the evidence was not property. In this contention there is no sufficient to justify the verdict.

merit. The contention of the defendants was The instructions quoted state correct ab that the note was fully paid off and disstract propositions of law, for, if it ap charged by the conveyance; it having been peared by a preponderance of the evidence so agreed by the parties at the time. There that payment had not been made, the plain was no middle ground, or any reason for contiff was entitled to recover. On the contrary, sideration of the question whether there was if it appeared in the same way that payment any agreement that the conveyance should had been made, the defendants were entitled operate as a partial payment. There was to a verdict. If the charge had stated noth no such issue made by the pleadings. ing further, the jury might possibly have in Finding no prejudicial error in the record,

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