11 Mont. 77 | Mont. | 1891
The main controversy in this case is that apparent upon the face of the pleadings, the plaintiffs contending
But other questions are raised, and the best view of the case can be obtained by following appellant’s specification of errors, and treating them in their order.
Hon. C. H. Benton, judge of the district, had been counsel in the case before his elevation to the bench. The case was tried before J. P. Lewis, Esq., special judge, under the provisions of the Constitution (art. 8, § 36).
1. The first error assigned is that the special judge set the case for trial, whereas he had no authority, under the Constitution, to do anything but try the case. Who set the case does not appear. If it did, we should not hesitate to say that authority to try a case carried with it the authority to do the necessary and incidental act of setting it for trial, as fully as to adjourn the trial for luncheon.
2. The second assignment of error tabes a view of the law opposite to that held in the first. Defendant challenged the entire panel of jurors, on the ground that the venire for them was issued by Hon. C. H. Benton, judge, who, as appears above, had been counsel in the case. The challenge was overruled.
It appears that the regular jurors had been discharged. The clerk was ordered to issue a special venire for twenty jurors. The writ reads: “To the sheriff, etc. You are hereby commanded to summon twenty good and lawful men of Cascade County, etc.” No names are contained in the writ as persons for the sheriff to summon. The sheriff returns that he had summoned twenty men, giving their names in his return.
The record states that defendant Wilcox files his written challenge to the entire panel, because the same had been drawn under the direction of Hon. C. H. Benton, the regular judge of the court, who was disqualified, as above set forth. When we consult defendant’s written challenge referred to in the above terms, and which is in the record, we find the following language therein set forth as the ground of the challenge: “ Challenges the entire panel of said jury on the ground that the same
Section 255, as amended March 2, 1889 (16th Sess. p. 165), as to an open venire, provides: “If from any cause the names contained in said box .... shall be exhausted without obtaining a competent jury, the court may order a venire to issue, directing the sheriff to summon from the citizens of the body of the county, and not from by-standers, so many qualified persons as may be necessary to complete the jury in the pending trial.”
As far as we can learn from the record in this case, it was under the provisions of these laws that the jury complained of was summoned. The judge had nothing to do with the selection of the jurors. He did nothing more than the formal act of ordering the venire to issue.
As to the disqualification of the judge, we find section 547 of the Code of Civil Procedure: “A judge shall not act as such in any of the following cases: . . . . When he has been attorney or counsel for either party in the action or proceeding.”
This disqualification of a judge now generally obtains by statute. But it is held that such disqualification does not extend to formal and non-judicial acts. The court says in Cock v. State, 8 Tex. App. 666: “It is urged in a motion in arrest of judgment that the Hon. A. J. Booty, the regular judge of the District Court of Panela County, and who was
We are of opinion that the function of the regular judge in ordering an open venire to issue to the sheriff is one of those formal matters in which he is not disqualified to act, because the case to come before the jury to be summoned on such open venire is one in which such judge had been counsel. It is as formal a matter as receiving an indictment, or granting a change of venue, or entering an order appointing the person agreed upon to try the case (Cock v. State, supra), or executing a special mandate of the Supreme Court to the court in which the alleged disqualified person is judge (State v. Collins, supra), or appointing commissioners to audit claims against an estate
We are satisfied that defendant’s challenge to the panel was properly overruled, upon the ground upon which he made it. He now urges, in his brief, in this court, for the first time, that the jury was incompetent to try the case, because a jury commission had not been appointed in the county of Cascade. (State ex rel. Root v. McHatton, Judge, 10 Mont. 370.) But that objection to the jury was never made in the District Court, nor was exception ever taken or saved.
3. It is specified as error that the court allowed plaintiff’s attorney to make certain remarks to the jury upon opening the case alleged to be improper; but no bill of exceptions was made or certified, and the matter is not before this court.
4. It is objected that the court allowed the plaintiff Littrell to testify as to the condition of the well in respect to having water in it, three years after it was dug; but the court allowed that testimony, with the ruling that, if it were not connected with the condition of the well at the time the plaintiffs ceased work upon it, the evidence would be stricken out. It was after-wards, and before the case was submitted to the jury, stricken out.
5. Objections are made to the refusal of the court to give certain instructions requested by the defendant. But the instructions alleged to be refused are not made part of the record, and we do not know that they were requested or refused.
6. It is contended that the court erred in giving the following instruction: “ Whether water was to be reached is not expressed in the contract or arrangement that was had between plaintiffs and defendant, and you are to take that into consideration in passing upon it, and with the other part of the evidence in this case.” Appellant does not inform us what the objection was to the instruction. It appears that the court stated a portion ot the evidence with absolute fidelity, and a portion upon which there was no conflict. There was not a word in the evidence that water was to be reached. The court told the jury that they were to consider that fact along with the rest of the evidence. It was certainly pertinent to the issue made by the pleadings, and no reason is suggested why it is objectionable.
Now, as to the special contract to reach water. It cannot be seriously contended that it appears from the evidence that the plaintiffs ever agreed, in terms, to sink to water. But defendant founds his argument upon his construction of the word “well”; that plaintiffs agreed to drill a “ well ”; that a “ well ” is a hole in the ground, containing water other than surface water; that when plaintiffs agreed to drill a “well” they contracted to furnish an article meeting that definition, and that, if they did not produce a hole in the ground containing water other than surface water, they did not drill a “ well,” and cannot recover.
Let it be observed here that nothing was said about price when the work was commenced and the contract made. The defendant himself selected the site for the proposed well. Nothing was said about plaintiffs undertaking to reach water. All that can be gleaned from the conversations of the parties is that plaintiffs were to dig a well. From this contract, and the circumstances, to construe an undertaking on the part of the plaintiffs to reach water or receive no pay, seems to us to do great violence to language, and to the ordinary transactions of sane men.
It appears that the services of plaintiffs were worth what they charged. When plaintiffs went to dig a well, when they took a site selected by defendants, when no guaranty of reaching water was made, when no price was fixed for performing the services or reaching water, can a court for a moment regard it as within the contemplation of the parties, as shown from their words or their acts, that they used the word “ well ” as
Bouvier’s Law Dictionary defines a “well” as “a hole dug in the ground in order to obtain water.” This is, to our mind, the only practical view. The object of a well is to obtain water. The well may be unsuccessful. The object of a mining shaft is to develop a mine that will pay — an object not always attained.
Under the circumstances of the ease, we cannot construe the word “well” as defendant insists; and he must depend wholly upon the construction of that word, for he utterly failed to prove any special contract in terms, and the jury so found.
We are of opinion that the judgment and the order denying the motion for a new trial should be affirmed, and it is so ordered.
Affirmed.