In re Davis' Estate, 11 Mont. 1

11 Mont. 1 | Mont. | 1891

Blake, C. J.

This is an appeal from an order overruling the motion of Henry A. Boot and Maria Cummings for a change of venue upon the following grounds: —

“First. There is reason to believe that an impartial trial cannot be had in said county of Silver Bow. Second. The citizens, inhabitants, and tax-payers of said county are interested in said proceedings, are biased and prejudiced against contestants, and in favor of proponent; and because the ends ot justice will be promoted by said change.”

The order was made May 2, 1891. The body of one notice of appeal recites “that the contestants .... appeal from the order of the court overruling their motion for a change of venue on account of the prejudice of the judge of said court, .... and from the whole thereof, to the Supreme Court of the State oí Montana.” In another notice this language is used: “ The contestants .... appeal from the order of the court overruling their motion for a change of venue on account of the prejudice of the inhabitants of the county, and for the reason that an impartial trial cannot be had therein, .... and from the whole thereof, to the Supreme Court of the State of Montana.”

The issues which are to be tried in this proceeding should be considered before we discuss the questions which have been raised.

Andrew J. Davis died March 11, 1890, in the county of Silver Bow, in this State. John A. Davis filed July 24, 1890, in the court below, his petition, and alleged that the deceased had left a will which first came to his knowledge and possession upon the fifteenth day of July, 1890. He therein stated the value oí the estate to be about four and one-half millions of dollars, and the heirs to be fourteen persons, who, with the exception of the petitioner, are non-residents. The entire estate, subject to a life maintenance of three parties, was devised by this instrument to said John A. Davis. The will, according to the record, was executed in the State of Iowa in the month of July, 1866. Said Boot and Mrs. Cummings, who are two heirs of the deceased, filed in writing their objections to the probate of this instrument, and averred in substance that the same was a forgery, and, if ever executed, was revoked by the deceased during his lifetime by the making of other wills. John A. Davis in his replication denies that the deceased ever executed another will, and alleges that if he had, the instrument which was made in the year 1866 was republished. The contestants demanded a trial by a jury of these issues.

The affidavits, pleadings, and documentary evidence, which were submitted upon the hearing of the motion, relate to the grounds which are specified in the notices of appeal. It is claimed by John A. Davis, who is the respondent, that this court has no jurisdiction to review the action of the court below. The contention is that this order is not enumerated in section -324 of the Probate Practice Act, concerning appeals from the Probate Court, and that there is no other legislation upon this matter.

These proceedings recently received the careful investigation of this court in the Estate of McFarland, 10 Mont. 445, and were adjudged invalid; and it was further held that appeals in the District Court in “ matters of probate ” must be regulated by section 421 of the Code of Civil Procedure. Under its terms, an appeal may be taken “from an order granting or ■refusing to grant a change of the place of trial.” We are thereby expressly empowered to inquire into the merits of this appeal. But the respondent insists that each of the notices is of an appeal from a part of the order before us, and that such practice-is without legal sanction. The transcript contains one motion for a change of the venue, which sets forth two grounds, and one order overruling the same, and two distinct notices of appeal and undertakings on appeal. We confess that we do not understand the reasons for bringing into this tribunal more than one appeal in this matter.

The judge of the court below, however, seems to have treated the subject in like manner, and employs in the order these words: “The motions of contestants for a change of venue herein, having come on regularly to be heard .... it is now ordered and adjudged that said motions for a change of venue be, and the same is denied and overruled.” Thé counsel for the appellants may have been controlled by this peculiar phraseology. The Supreme Court of California allows an appeal to be taken from a portion of an order. (Dimick v. Deringer, 32 Cal. 488; Estate of McCauley, 50 Cal. 544.) The cases of Barkley v. Logan, 2 Mont. 296, and Plaisted v. Nowlan, 2 Mont. 359, on which the respondent relies, are easily distinguished. When they were decided, the statute relating to appeals was as follows: “An appeal maybe taken to the Supreme Court from the District Courts in the following cases: First. From a final judgment entered in an action or special proceeding commenced in those courts, or brought in those courts from other courts.” (Civ. Prac. Act, 7th Sess. § 380.) This section was subsequently' amended and now reads: “ An appeal may be taken to the Supreme Court from the District Courts in the following cases: First. From a final judgment, or any part thereof, entered in an action or special proceeding commenced in those courts, or brought into those courts from other courts.” (Code Civ. Proc. § 444.)

Aside from this radical difference between the statutes, swpra, it is obvious that a judgment, which is the final settlement of the rights of the parties to an action, cannot be placed upon the same level with an order respecting the place of a trial. In the case at bar, each appeal is from the whole order, as well as a specified part thereof, and the transcript embodies without any omission every act of the court and the testimony which was adduced. If we regard as irregular the taking of two appeals, when one is sufficient, the fact does not in this instance deprive the contestants oí any substantial right.

We will now consider the first ground on which the motion for a change of the place of trial is founded: “There is reason to believe that an impartial trial cannot be had in said county of Silver Bow.” It is contended that this subdivision includes the ground that the judge of the court below is biased and prejudiced against the appellants, and our attention is directed to the following statutes: —

“If an action or proceeding is commenced or pending in a •court, and the judge or justice thereof is disqualified from acting as such, or if, for any cause, the court orders the place of trial to be changed, it must be transferred for trial to a court the parties may agree upon by stipulation in writing, or made in open court, and entered in the minutes; or if they do not so agree, then to the nearest court where the like objection or cause for making the order does not exist, as follows: .... If in the Probate Court, to some other Probate Court.” (Code Civ. Proc. § 63.) “The court may, on good cause shown, change the place of trial in the following cases: , . . . When there is reason to believe that an impartial trial cannot be had therein.” (Code Civ. Proe. § 62.) “ When a petition is filed in the Probate Court, praying for admission to probate of a will, or for granting letters testamentary or of administration, or other proceedings are pending in the Probate Court for the settlement of an estate, and the presiding judge of the court is disqualified to-act from any cause, upon his own or the motion of any person interested in the estate, he must make an order transferring the proceeding to the Probate Court of an adjoining county, ...» and thereafter the Probate Court to which the proceeding is transferred shall exercise the same authority and jurisdiction over the estate, and all matters relating to the administration thereof, as if it had original jurisdiction of the estate.” (Prob. Prac. Act, § 110.) Under the Constitution, the judge of the-District Court possesses the jurisdiction which was formerly lodged in the probate judge, and it is argued that a broad and liberal construction must be given to the clause, “disqualified to act from any cause.” We think there are other statutes-which should be examined in this connection. “ A judge shall not act as such in any of the following cases: In an action or proceeding to which he is a party, or in which he is interested ; when he is related to either party by consanguinity or affinity within the third degree; or when he has been attorney or counsel for either party in the action or proceeding.” (Code Civ. Proc. § 547.) This number of disqualifications has been enlarged in the following section: “No Probate Court shall admit to probate any will, or grant letters testamentary or of administration in any case where the judge thereof is interested as next of kin to the decedent, or as a legatee or devisee under the will, or when he is named as executor or trustee in the will, or as a witness thereto, or is in any other manner interested or disqualified from acting.” (Prob. Prac. Act, § 109.)

The bias or prejudice of the judge is not referred to as a disqualification, or as a cause for the change of the place of trial, in any statute affecting the District or Probate Courts in civil or probate proceedings. But in the title regulating the procedure in the courts oí justices of the peace, we find the mandatory provision that “ if either party make affidavit that he has reason to believe, and does believe that he cannot have a fair and ; impartial trial before such justice, the action shall be transferred to some other justice of the same county; and in case of a jury being demanded, and affidavit of either party is made that he cannot have a fair and impartial trial on account of the bias or prejudice of the citizens of the precinct or township against him, the action shall be transferred to some other justice of the peace in the county.” (Code Civ. Proc. § 780; People ex rel. v. Hubbard, 22 Cal. 34.) In the Criminal Practice Act, it is provided as follows: “Any defendant, in any indictment or information, may be awarded a change of venue upon a petition setting forth that he has reason to believe that he will not receive a fair trial in the court in which such indictment or information may be pending, on account that the judge is interested or prejudiced, or is of kin to, or shall have been counsel for either party, .... or that the inhabitants of the county are prejudiced against the applicant, so that he cannot expect a fair trial.” (§ 226.) The intention of the legislature is uttered plainly and directly with relation to the bias or prejudice of justices of the peace and the judges of the courts where an indictment or information is pending. "What legal inference can be drawn from the comparison of the statutes supra? One potent fact in the history of this legislation during the territorial period is very useful and important in expounding the will of the law-makers. We allude to the question which arose in Godbe v. McCormick, 1 Mont. 105. When the fourth legislative assembly convened in November, 1867, section 21 of the Civil Practice Act was in effect the same as section 62, supra, of the Code of Civil Procedure. By an act approved December 6, 1867, this section was amended in some particulars as follows: “Second. When there is reason to believe that an impartial trial cannot be had in said cause by reason of the bias or the prejudice of the judge before whom the same is pending, or by reason of the bias or prejudice of the citizens of the county where said action is pending.....Provided, however, that when an affidavit is made by any party to said action or proceeding, or by his or their attorney, that the party making the application, and on whose behalf the affidavit is made, cannot have a fair and impartial trial in said action by reason of the bias or prejudice of the judge before whom said action is then pending, such judge shall, and it is hereby made his duty to immediately order said action to be transferred to some other county in said Territory, outside of his judicial district. ; . . . This act shall apply to all actions now pending or that may hereafter be brought in the Territory of Montana.” (Stats. 4th. Sess. 68.) McCormick filed December 7, 1867, his motion and affidavit for a change of the venue of the action by reason of the bias and prejudice of the judge. The court sustained a motion to strike from the files these papers and tried the cause. It was held in Godbe v. McCormiok, supra, that this act was upon a rightful subject of legislation, and did not divest the District Courts of their common-law jurisdiction. The judgment was reversed upon the sole ground that the court was required to obey the statute and change the venue. The same legislative body passed the Civil Practice Act, which was approved December 23,1867, and repealed the amendment, supra, and section 21 was re-enacted without any modification. The law upon this subject has remained in force since that date.

The following statute has existed from its approval, January 11, 1865: “That the common law of England, so far as the same is applicable and of a general nature, and not in conflict with special enactments of this Territory, shall be the law and rale of decision, and shall be considered as of full force until repealed by legislative authority.” (Stats. 1st. Sess. 356.) In Turner v. Commonw. 2 Met. (Ky.) 626, the court said: “At common law there were but two objections that went to the disqualification of a judge to try a cause, to wit, interest in his ■own behalf in the result, or being of kin to others interested therein. (2 Bacon’s Abridgment, title ‘Courts.’)” In Peyton’s Appeal, 12 Kan. 407, the court said: “ It will be admitted that at common law prejudice did not disqualify a judge.” In the opinion in Conn v. Chadwick, 17 Fla. 439, by Mr. Justice Westcott, it is said: “ In the time of Bracton and Fleta, a judge might be refused for good cause; but at the common law as administered in England and the United States for centuries, judges and justices could not be challenged. There were disqualifying causes, such as interest, and being of kin to the party.”

We will comment upon the decisions of States in which similar statutes are enforced. A leading case upon this branch of our inquiry is McCauley v. Weller, 12 Cal. 500, and Chief Justice Terry in the opinion says: “ The application for a change of venue was made upon affidavits setting up that defendants could not have a fair and impartial trial in the court below, on account of the bias of the presiding judge.” The statute, which is in substance section 547, supra, of the Code of Civil Procedure, is cited, and the court proceeds: “ These are the only causes which work a disqualification of a judicial officer. The exhibition by a judge of partisan feeling, or the unnecessary expression of an opinion upon the justice or merits of a controversy, though exceedingly indecorous, improper, and reprehensible, as calculated to throw suspicion upon the judgments of the court and bring the administration of justice into contempt, are not under our statute sufficient to authorize a change of venue on the ground that the judge is disqualified from sitting.”

The additional reasons, which are presented in support of this rule, appear to be unsound, and we concur with Mr. Hayne in the following observation: “The true reason of the rule, in McCauley v. Weller, that bias does not disqualify a judge, is that such ground is not specified in the statute as a ground of disqualification.” (New Trial and Appeal, § 32.) This authority has been followed in many cases. (People v. Williams, 24 Cal. 31; People v. Shuler, 28 Cal. 490.) The case of McCauley v. Weller, supra, was heard at the January term, 1859, and Bulwer Con. Min. Co. v. Standard Con. Min. Co. 83 Cal. 589, was determined at the April term, 1890, and it is said: “As to the appeal from the order denying defendant’s motion to change the place of trial, it is to be observed that the only ground of the motion alleged or attempted to be proved was, that the ‘judge of said court is disqualified from acting in said case on account of his bias and prejudice against the defendant and A. Pettibone, its president and resident manager,’ which is not one of the grounds of disqualification enumerated in section 170 of the Code of Civil Procedure, and therefore not a ground of disqualification.” The commissioners of the State of California with reference to this section say in their reports “ The three causes stated in the text are the only ones which work a disqualification of a judicial officer.” In Allen v. Reilly, 15 Nev. 452, the court said: “Defendant then moved for a change of venue, on the ground that he' could not have a fair and impartial trial before the judge presiding, because he and defendant had been, and then were, bitter personal enemies. The motion was supported by the defendant’s affidavit setting out the facts just stated, but it was denied by the court. The judge was not disqualified under the statute. (Comp. Laws, 950.)” The statutes of California and Nevada, which are relied on in the opinions supra, are identical in their provisions with section 547, supra, of our Code of Civil Procedure.

Let us weigh the authorities with which the appellants sustain their position. In Peyton’s Appeal, supra, a motion was made that the venue be changed on the ground of the bias or prejudice of the judge. It was held that the proceeding before the court was criminal in its nature, and the defendant had the right to have the same removed under this provision of the Criminal Code: “Where the judge is in any wise interested or prejudiced.....” The fourth section of the act relating to the District Courts provides for the selection of a judge pro tern, in certain cases. “ When the judge is interested, or has been of counsel in the case or subject-matters thereof, or is related to either of the parties, or otherwise disqualified to sit.” In ascertaining the meaning of the expression, “ or is otherwise disqualified to sit,” the case of Turner v. Commonw., supra, is approved, and it was decided that the change of venue should have been granted, or the trial should been had before a judge pro tern.

The appellant, in Turner v. Commonw., supra, filed affidavits, and asserted that the presiding judge was his personal enemy, and that he believed that he could not and would not do him justice upon the trial. He asked that some impartial lawyer be substituted in the place of this judicial officer, and the application was refused. It is stated in the opinion of the court by Mr. Justice Stiles that the statute of 1815 “provided that in all suits cognizable in any of the Circuit Courts of the State where either party should conceive that he or she would not receive a fair trial in the court in which such suit might be pending, owing to the interest or prejudice of any judge or judges of said court, .... such party might, upon the terms and in the manner therein prescribed, apply for and obtain a change of venue. Thus making the prejudice of the judge a ground for •change of venue.” In order that another remedy might be obtained by the election of a special judge under these circumstances, the framers of the Constitution of the State of Kentucky inserted this section: “ The general assembly shall provide, by law, for holding Circuit Courts, when, from any cause, the judge shall fail to attend, or, if in attendance, cannot properly preside.” In pursuance of this power, the legislature enacted a statute which reads as follows: “ When, from any cause, the judge of the circuit fails to attend, or, if in attendance, cannot properly preside in a cause or causes pending in such court, the attorneys of the court who are present shall elect one of its members then in attendance to hold the court for the occasion, who shall accordingly preside.” The court construed the phrases, “any cause” and “properly preside,” and concluded that the framers of the Constitution by the section, supra, “ must be presumed to have referred to the laws then in force prescribing what was a legal cause to prevent a circuit judge from trying a case,” and that said Act of 1815 specified among other such causes the prejudice of a judge. It was therefore adjudged improper for the circuit judge to preside in the case, after the objections of the appellant were presented, and try and determine the issues.

It is pertinent to notice at this time a sentence from the American and English Encyclopaedia of Law: “ Bias or prejudice on the part of the judge is generally held to be a sufficient ground for a change of venue.” (Vol. 3, p. 93.)

We have examined all the cases which are referred to in the accompanying note, and comprise the appellate courts of the States of Illinois, Indiana, Iowa, Wisconsin, Minnesota, and Kansas. The corner-stone of every decision is a statute, which defines in express terms the bias or prejudice of the judge to be a disqualification. Some of the acts which are quoted are as mandatory as the foregoing law in Godbe v. McCormiok, supra.

The solitary authority for the principle which is upheld by the appellants is Williams v. Robinson, 6 Cush. 333. The statute establishing the police court in Taunton provided that the special justice “shall have power, in case of the absence, sickness, interest, or any other disability of the standing justice,” to hear and determine the case, “ the said cause being assigned on the record.” The following entry appears in this book: “ This action is tried by the special justice, the standing justice having, before the action was commenced, heard the facts in the case, as stated by the plaintiff, and being therefore somewhat interested in the plaintiff’s favor.” The eminent jurist, Mr. Justice Metcalf, in the opinion said: “Conscious bias or prejudice in favor of one of the parties, or against the other, caused by hearing an ea; 'parte statement of the facts of the case, is an inability or disability to try the case, within the just meaning of the statutes.....It was not necessary that the statutes should enumerate all the disqualifications of the standing justice. The rules of the common law and the principles of natural justice are to be applied in the construction of these statutes.” It was held that the special justice lawfully tried the action.

We are not aware of any other decision which entertains these views. We have declared that the bias and prejudice of a judge did not constitute disqualifications according to the common law. In Commonw. v. McCloskey, 2 Rawle, 369, Mr. Justice Rogers for the court says: “If the legislature should pass a law in plain, unequivocal, and explicit terms, within the general scope of their constitutional power, I know of no authority in this government to pronounce such an act void, merely because, in the opinion of the judicial tribunals, it was contrary to the principles of natural justice; for this would be vesting in the court a latitudinarian authority which might be abused, and would necessarily lead to collisions between the legislative an4 judicial departments, dangerous to the well being of society, or at least, not in harmony with the structure of our ideas oí natural government. Justice is regulated by no certain or fixed standard, so that the ablest and purest minds might sometimes differ with respect to it.” We also cite from Potter’s Dwarris on Statutes, 81: “The legislature possesses, certainly an equal, if not a superior right, to the courts, to determine, by their opinion, what laws are consistent with the abstract principles of natural justice.”

From this review, the deduction is clear that there is no statute which authorizes the change of the place of trial of this proceeding by reason oí the bias or prejudice of the judge of the court below. This is the rock on which our judgment stands. We have seen that the legislative assembly has spoken in emphatic tones of the rights of suitors in Justices’ Courts, and deiendants in certain criminal proceedings, to procure a change of the venue on account of the bias or prejudice of the judge, but it has been silent for decades upon this cause with regard to parties in the District and Probate Courts. The court below did not have the power to grant the motion for this ground, and it is needless to look at the evidence thereon.

We reiterate our criticism concerning the reasons which have been given by some courts which have reached the same results. We disapprove every suggestion and claim that a judge, who is swayed by personal bias or prejudice, is powerless to injure his foes, or render aid to his friends, because his errors can be corrected upon appeal to a superior tribunal. There are presumptions in favor of 1ns rulings which cannot be ignored, and he can make orders which cannot be disturbed, unless there has been a gross abuse of his discretion.

It is admitted that the place of the trial of this proceeding can be changed under section 62, supra, of the Code of Civil Procedure, if the people of the county of Silver Bow are biased and prejudiced against the appellants so that there is reason to believe that an impartial trial cannot be had therein. There are no legal questions for our determination. An order refusing the application for a change of venue will not be set aside in the absence of an abuse of judicial discretion. (Territory v. Corbett, 3 Mont. 50; Kennon v. Gilmer, 5 Mont. 257; Territory v. Manton, 8 Mont. 95.) In these cases the affidavits were adjudged insufficient to support the grounds which had been alleged in the motion. The court points out accurately in Kennon v. Gilmer, supra, the character of the proof which is required, and the form of the affidavit, which purports to narrate the language oí the witnesses. These matters are essential, and should be observed to enable the court to decide whether there is bias or prejudice in the community.

This application is accompanied by the affidavits of George O. Freeman and said Boot. They also embrace nine clippings from two newspapers, which were published in Butte, the county seat of the county of Silver Bow.

Freeman deposes that he is a resident of Helena, in this State; that he went to Butte March 21,1891, for the purpose of interviewing the residents and property owners of the county concerning the sentiment respecting the contest of said will; that he remained there until March 30,1891; that he interviewed in the neighborhood of fifty prominent men of Butte, and asked them what they thought the chances were for a fair and impartial trial; that with two exceptions each of these persons advised him that there was a strong sentiment in the county, and particularly in the town of Butte, in favor of John A. Davis and Andrew J. Davis, Jr., his son, and against said Boot and Mrs. Cummings; that these persons said that John A. Davis was an old resident of Butte, and the favored brother of the deceased; that the deceased made most of his money in Butte and said county, and that the people of Butte would get the benefit of it in preference to some outside place; that Andrew J. Davis, Jr., was entitled to have the First National Bank of Butte; that if John A. Davis was successful in said contest, he would respect the wishes of the people of Butte, and keep the money there, and that Butte would get the benefit of it; that if said Boot and Mrs. Cummings were successful in said contest, the money of the estate and the proceeds of the property would be turned from Butte, and that Butte would be the loser.

That affiant at each interview had severally requested these persons to make an affidavit setting forth in substance the above facts and opinions, “ but that in each and every instance, with but two exceptions, said persons refused so to do, giving as their reasons for such refusal that they did not desire to get mixed up in said matter, unless they were compelled to; that they would not do so willingly. That affiant interviewed one Julian, a reporter upon the Butte Mining Journal, and that Julian made the same statements as the other persons; that Julian refused to make an affidavit, but said that “he did not wish to willingly get himself mixed up in the case; but that if called into court, and made to do so by the judge, he would tell the truth, just as he had told affiant. That affiant visited during this time the following places in Butte: “ Lynch’s Saloon, the Silver Bow Club, the Mint Saloon, Beal Estate Office of W. McC. White, Gamer’s Boot and Shoe Store, D. M. Newbro Drug Co. Store, and the several hotels in the city of Butte; ” and that he met “ a great many people,” who in conversations uttered the above facts and opinions; that the questions about the Davis estate and said contest were matters of general comment; and that “only two persons expressed themselves otherwise than as against the said Koot and Cummings, and in favor of John A. Davis and Andrew J. Davis, Jr.55

Said Koot deposes that he is a resident of said Helena, and, in addition to some of the facts in the affidavit of said Freeman, says that said bank has a large portion of the money and assets of said estate; that said bank with the exception of a small interest belongs to said estate; “and that said bank does a general, large, and extensive business in accommodating the merchants and businessmen of said city and county;55 and that the newspapers of Butte have been trying to mold the minds of the community generally in favor of John A. Davis and against said contestants and non-residents. The respondent files the affidavits of John A. Davis, W. McC. White, Luther C. White, Fred Wey, James Lynch, Kobert Grix, Victor E. Goldsmith, James W. Forbis, George W. Irwin, Koderick D. Leggat, and Henry G. Valiton. (

The said clippings were published in the Inter-Mountain and Butte Mining Journal, and are confined chiefly to comments upon the action of the court below in appointing John A. Davis to be the general administrator of the estate. These articles, however, viewed as a whole, express in positive and forcible terms the same facts and opinions which are stated in the affidavits of Koot and Freeman. One of them, which was printed April 30, 1890, assumes to give the views of fifteen citizens of Butte, who are named by the reporter of the Mining Journal, of the appointment of John A. Davis.

The affidavits of the respondent are made by residents of Butte, and deny that any bias or prejudice relative to the contest of said will exists in Butte or the county of Silver Bow. John A. Davis deposes that the articles were published in the newspapers without his knowledge or wishes; and that said bank “ transacts only a portion of the banking business of said city; and that only a portion of the business men of the city of Butte, and of the county of Silver Bow, are customers of, or have any business with said bank, there being four or five other banks doing business in said city of Butte.55 The parties who were engaged in business at the aforesaid places have contradicted in their affidavits, respectively, the above statements of Freeman. Forbis deposes that he had an interview with said Julian, and then narrates a conversation which differs materially from the report of Freeman. It is significant that said Julian is the only person who is designated in the affidavit of Freeman to corroborate his testimony, and that no excuse is offered for the failure to attempt to secure the presence in court of a number of the citizens of Butte, and especially of the two men who seem to have been friendly to the contestants. In Territory v. Manton, supra, Chief Justice McConnell in the opinion referred to the practice in deciding upon the proof of the grounds in an application for a change of venue, and said: “ The court should determine the question from the facts shown, upon a procedure for that special purpose, either by testimony taken by affidavits,, or witnesses called and examined, in open court, or before the judge at chambers, as the case may be.” It would have been the proper mode in this proceeding, when about fifty persons were found who refused to furnish their affidavits, and one party was apparently testifying upon both sides, to have invoked the process of the court and compelled all of them to attend the hearing and give their evidence. There might have been added to this list of witnesses the names of the editors and reporters of the said newspapers who could be questioned as to their source of information, and the citizens who were interviewed April 30, 1890, according to the Butte Mining Journal. But no effort of this nature has been made. John A. Davis is shown to have had no relation to the articles in the said newspapers, and this application rests upon the affidavits of Root and Freeman, who are non-residents of the county of Silver Bow. Upon the entire evidence, and under the practice which has prevailed in the courts of the Territory and State, we must hold that there has been no abuse of judicial discretion in refusing to grant the motion upon the second ground.

It is therefore adjudged that the order of the court below be-affirmed.

Affirmed.

Harwood, J., and De Witt, J., concur.