SEC. 232. If a person recover damages for a forcible or unlawful entry in or upon or detention of any building or any cultivated real property, judgment may be entered for three times the amount at which the actual damages are assessed. CHAPTER III. ACTIONS IN RELATION TO REAL ESTATE. SEC. 233. An action may be brought by any person in posses-Mont 307 sion, by himself or his tenant of real property, against any person } who claims an estate or interest therein adverse to him, for the purpose of determining such adverse claim, estate or interest. SEC. 234. If the defendant in such action disclaim in his answer any interest or estate in the property, or suffer judgment to be taken against him without answer, the plaintiff shall not recover costs. SEC. 235. In an action for the recovery of real property, where the plaintiff shows a right to recovery at the time the action was commenced, but it appears that his right has terminated during the 13 pleading of the action, the verdict and judgment may be according to the fact, and the plaintiff may recover damages for withholding the property. SEC. 236. When damages are claimed for withholding the property recovered, upon which permanent improvements have been made by a defendant, or those under whom he claims holding under color of title adversely to the claims of the plaintiff, in good faith, the value of such improvements shall be allowed as a set-off against such damages. SEC. 237. The court in which an action is pending for the recovery of real property, or a judge thereof, may, on motion, upon notice to either party, for good cause shown, grant an order allowing to such party the right to enter upon the property and make survey and measurement thereof for purpose of the action. SEC. 238. The order shall describe the property, and a copy thereof shall be served on the owner or occupant, and thereupon such party may enter upon the property with necessary surveyors and assistants and make such survey and measurement, but if any unnecessary injury be done to the property he shall be liable therefor. SEC. 239. A mortgage of real property shall not be deemed a conveyance, whatever its terms, so as to enable the owner of the mortgage to recover possession of the real property without a foreclosure and sale. SEC. 240. The court may, by injunction, on good cause shown, restrain the party in possession from doing any act to the injury of the real property during the foreclosure of a mortgage thereon, or after a sale on execution before a conveyance is executed. SEC. 241. An action for the recovery of real property, against a person in possession, cannot be prejudiced by an alienation made by such person, either before or after the commencement of the trial. CHAPTER IV. ACTIONS FOR USURPATIONS. SEC. 242. An action may be brought by the district attorney in the name of the people of Montana Territory upon his own information, or upon the complaint of a private party, against any person who usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this Territory. And it shall be the duty of the district attorney to bring the action whenever he has reason to believe that any such office or franchise has been usurped, intruded into, or unlawfully held or exercised by any person, or when he is directed to do so by the governor. SEC. 243. Whenever such action is brought, the district attorney, in addition to the statement of the cause of action, may also set forth in the complaint the name of the party rightly entitled to the office, with a statement of his right thereto, and in such case, upon proof by affidavit that the defendant has received fees or emoluments belonging to the office and by means of his usurpations thereof, an order may be granted by the judge of the supreme court, or a district judge, for the arrest of such defendant and holding him to trial, and thereupon he may be arrested and held to bail for his appearance at the trial, and for his cou pliance with any order or judgment that may be rendered against him in such action. SEC. 244. In every such case, judgment may be rendered upon the right of the defendant, and also upon the right of the party alleged to be entitled, or only upon the right of the defendant, as justice shall require. SEC. 245. If judgment be rendered upon the right of the person alleged to be entitled, and the same be in favor of such person, he shall be entitled, after taking the oath of office and executing such official bond as may be required by law, to take upon himself the duties of the office, and he may by action recover the damages which he shall have sustained by reason of the usurpation of the office by the defendant. SEC. 246. When several persons claim to be entitled to the same office or franchise, one action may be brought against all such persons, in order to try their respective rights to such office or franchise. SEC. 247. When a defendant against whom such action has been brought is adjudged guilty of usurping, or intruding into, or unlawfully holding any office, franchise or privilege, judgment shall be rendered that such defendant be excluded from the office, franchise or privilege, and that he pay the costs of the action. The court may also, in its discretion, impose upon the defendant a fine, not exceeding five thousand dollars, which fine when collected shall be paid into the treasury of the Territory. TITLE IX. CHAPTER I. APPEALS. SEC. 248. A judgment, or order in civil action, except when expressly made final in this act, may be revived, as prescribed by this title, and not otherwise. SEC. 249. An order made out of court, without notice to the adverse party, may be vacated or modified without notice by the judge who made it, or may be vacated or modified on notice, in the manner in which other motions are made. SEC. 250. Any party aggrieved, may appeal in the cases prescribed in this title. The party appealing shall be known as the appellant, and the adverse party the appellee. SEC. 251. An appeal may be taken, First, From a final judgment in action or special proceeding commenced in the court in which the judgment is rendered within six months after the rendition of the judgment. Second, From a judgment rendered on an appeal from the probate court within ninety days after the rendition of the judgment. Third, From an order granting or refusing a new trial or re-hearing, from an order refusing to change the place of trial of an action or proceeding after a motion is made therefor in the case provided by law, or on the ground that the judge is disqualified from hearing or trying the same, from an order granting or dissolving an injunction, and from an order refusing to grant or dissolve an injunction, and from any special order made after final judgment within sixty days after the order is made and entered in the minutes of the court. SEC. 252. The appeal shall be made by filing with the clerk of the court with whom 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 upon the adverse party or his attorney. SEC. 253. When the party who has the right to appeal wishes a statement of the case to be annexed to the record of the judgment or order, he shall within twenty days after the entry of such judgment or order prepare such statement, which shall contain the grounds upon which he intends to rely upon the appeal, and so much of the evidence as shall be necessary to explain the grounds, and no more, and shall file the same with the clerk. The appellee may within five days thereafter prepare amendments to the statement, and serve a copy of the same on the appellant. If such amendments be admitted, the statement shall be corrected accordingly, and if not admitted the statement and amendments shall be presented to the judge who tried the case, upon notice of two days to the appellee, and a true statement shall thereupon be settled by such judge. SEC. 254. If the party shall omit to make a statement within the time above limited, he shall be deemed to have waived his right thereto; and when a statement is made, and the parties shall omit within the several times above limited, the one party to propose amendments the other to notify an appearance before the judge, they shall be respectively deemed, the former to have agreed to the statement as proposed, and the latter to have agreed to the amendment as proposed, and no settlement of the statement or certificate thereto by the judge shall be required. SEC. 255. The several periods of time above limited may be enlarged upon good cause shown by the judge before whom the cause was tried. SEC. 256. The statement, when settled by the judge, shall be signed by him, with his certificate that the same has been allowed and is correct. When the statement is agreed upon by the parties, they or their attorneys shall sign the same, with their certificate that it has been agreed upon by them and is correct. In either case, when settled or agreed upon, it shall be filed with the clerk. SEC. 257. The clerk shall annex the statement, if the appeal be from a final judgment, to the transcript of the proceedings, including a copy of all the pleadings, motions and orders made in the if the appeal be from an order, to such order or a copy cause; SEC. 259. Upon an appeal from a judgment, the court may review any intermediate order involving the merits and necessarily affecting the judgment. SEC. 260. Upon an appeal from a judgment or order, the appellate court may reverse, affirm, or modify the judgment or order appealed from in the respect mentioned in the notice of appeal, and as to any or all of the parties and may set aside, or confirm, or modify any or all of the proceedings subsequent to or dependent 1:3 upon such judgment or order, and may if necessary or proper order a re-hearing. When the judgment or order is reversed or modified, the appellate court may make complete restitution of all property or rights lost by the erroneous judgment or order; and when it appears to the appellate court that the appeal was made for delay, it may add to the costs and damages as may be just. SEC. 261. On an appeal from final judgment, the appellant |