was inequitable and unfair, and says in his testimony introduced in this proceeding that he only paid the same in fulfillment of mutual promises made by the brothers that any award that should be made should be paid by the unsuccessful party. The defendant in error, in his complaint, seeks to set aside the award for fraud, for insufficient evidence, and for mistake of law and fact. Issues having been joined upon this complaint, evidence was taken before a referee, whose findings were in favor of the plaintiff. Thereupon, a decree was rendered by the district court, setting aside the award, and ordering an accounting between the brothers. A judgment for costs was also entered, and execution was ordered to be issved. To review this judgment the case is brought to this court.

Patterson & Thomas, for plaintiff in error. L. S. Dixon and Rose & Walling, for defendant in error.

HAYT, C. J., (after stating the facts.) The arbitration was had under the statute at that time in force. This is apparent from the concluding paragraphs of the articles of submission. In both instances such arti

cles provide as follows: "And inasmuch as the statute requires that the following agreement shall be inserted in all articles of arbitration, it is further agreed that said award, when made, may be filed by the successful party with the clerk of the district court, as a basis of a judgment, and that an execution may be issued for its collection." It matters not that the award in this case was not filed with the clerk of the district court. The necessity for so filing it was obviated by the plaintiff paying the amount awarded against him.

By the statute under which the arbitration was had, it is provided, among other things, as follows: "Sec. 7. Whenever it shall appear upon the trial of an action at law, or in equity, or in any legal proceeding, in or before any court of competent jurisdiction, that the subject matter of such action or proceeding, or of any part thereof, or of the defense thereto, or of any part thereof, has been submitted to and decided by arbitrators according to the terms of this act, such matter so arbitrated shall be held to have been adjudicated and settled, and not open, either directly or indirectly, for review." Sess. Laws 1881, p. 60. The agreement to arbitrate having been made under this act, it must be construed in reference to the terms of the statute. In other words, the statute must be considered as a part of the contract of submission, the same as though it had been inserted in the articles providing for the submission. Hepburn v. Jones, 4 Colo. 98. It therefore became necessary, at the threshold of this case, to determine the effect of this statute. The decisions of the courts as to the circumstances

v.34P.no.2-12

that will justify the setting aside of an award in the absence of a statute are in hopeless conflict. In some cases it has been held that extraneous evidence may be introduced to show a mistake of law or fact on the part of the arbitrators, although such mistake is not apparent upon the face of the award. The tendency, however, of many-and we think the better-decisions is to the effect that an award of arbitrators should be placed upon much the same plane as a final judgment, unless otherwise provided by statute. In the leading case of Water-Power Co. v. Gray, reported in 6 Metc. (Mass.) 131, Shaw, C. J., says: "Their decision upon matters of fact and law, thus acting within the scope of their authority, is conclusive, upon the same principle that a final judgment of a court of last resort is conclusive. * *79 Page 165. See, also, Burchell v. Marsh, 17 How. 344; Jocelyn v. Donnel, 14 Amer. Dec. 753, and notes; Briley v. Underwood, 41 Ga. 9; Brown v. Green, 7 Conn. 536; Railroad Co. v. Bradley, 7 Ind. 49; Brown v. Clay, 31 Me. 518; Ward v. Bank, 7 Metc. (Mass.) 486; Rundell v. La Fleur, 6 Allen, 480; Hodgkinson v. Fernie, 3 C. B. (N. S.) 189. Cockburn, C. J., in the latter case, says: "But the modern cases which have been cited certainly go the length of deciding that, unless there be something upon the face of an award to show that the arbitrator has proceeded upon grounds which are not sustainable in point of law, the court will not entertain an objection to it." Arbitration is favored by the law, as a convenient mode of adjusting disputes. Parties, after having selected their own judges, as a general rule, should be bound by the result. The award in this case, upon its face, is not open to criticism; and, to give the statute any effect whatever, we must treat the award as of the same sanctity as a final judgment of a court of last resort. To do less than this would be to override entirely the legislative act. In this connection it is pertinent to consider the law with reference to the impeachment of judgments by courts of equity. In the case of U. S. v. Throckmorton, 98 U. S. 61, it is said: "There are no maxims of the law more firmly established, or of more value in the administration of justice, than the two which are designed to prevent repeated litigation between the same parties in regard to the same subject of controversy, namely: 'Interest rei publicae, ut sit finis litium,' and Nemo debet bis vexari pro una et eadem causa.' * * * But there is an admitted exception to this general rule in cases where, by reason of something done by the successful party to a suit, there was in fact no adversary trial or decision of the issue in the case. Where the unsuccessful party has been prevented from exhibiting fully his case by fraud or deception practiced on him by his opponent, as by keeping him away from court, a false promise of a com

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promise; or where the defendant never had knowledge of the suit, being kept in ignorance by the acts of the plaintiff; or where an attorney fraudulently or without authority assumes to represent a party, and connives at his defeat; or where the attorney regularly employed corruptly sells out his client's interests to the other side,-these, and similar cases which show that there has never been a real contest in the trial or hearing of the case, are reasons for which a new suit may be sustained to set aside and annul the former judgment or decree, and open the case for a new and fair hearing. * On the other hand, the doctrine is equally well settled that the court will not set aside a judgment because it was founded on a fraudulent instrument or perjured evidence, or for any matter which was actually presented and considered in the judgment assailed." In this case the district court went behind the award, and substituted its judg ment, upon both the law and the facts of the c.se, for that of the arbitrators. instance, in his opinion, the trial judge says of the herd account: "Upon careful examination of the evidence, after hearing the elaborate arguments of counsel, I am unable to find that there is any testimony tending to prove that the plaintiff was legally or equitably obligated to pay the defendant the said sum of $7,472.53, which was used in the care and maintenance of the herd of cattle." The court regarded this as the most serious error committed by the arbitrators, and found it sufficient, of itself, to warrant a decree annulling the award. Giving to the award the effect of a judgment, this action of the district court is not sustained by either reason or authority. Moreover, in this country, arbitrators are not bound by positive rules of law. And aside from this, by the articles of submission, it clearly appears not to have been the intention of the parties to submit this account to the test of the strict rules of law or principles of equity by which the courts are governed, it being expressly stipulated that "it should be determined and adjudged in a peaceful and quiet manner, as becomes and is just between man and man, brother and brother, and, above all, to avoid strife, technicality, and litigation." Leaving out of consideration for the moment this provision of the articles of submission, and also the statute, and testing the decree of the district court solely by the rules governing awards under the common law in cases where all questions of law or fact are submitted, it cannot be allowed to stand, for, while such awards may be set aside for fraud, accident, or mistake, the fraud must be practiced upon the arbitrators, or some accident or mistake must be shown by which they were deceived and misled. The opinion in the case of Water-Power Co. v. Gray, supra, will be found valuable and instructive upon this point. In that case the court, aft

er carefully reviewing the authorities, held that an award would not ordinarily be set aside for mistake of the arbitrator in weighing the facts placed before him, or because of adopting erroneous rules of law. See, also, Burchell v. Marsh, supra.

. Several other matters appear from this record that are, of themselves, sufficient to overthrow the decree of the district court. For instance, after the award was made, its provisions were carried out by the parties; Mr. A. D. Wilson paying the amount found due from him, and Mr. W. J. Wilson executing a release of the chattel mortgage held by him upon the herd of cattle. Mr. W. J. Wilson also executed a quitclaim deed to his brother for 160 acres of land, and gave up the possession of a certain stable, as the result of the arbitration. At the trial below it was claimed, and this claim is pressed in this court, that, so far as Mr. A. D. Wilson is concerned, this should not be taken as a ratification on his part of the award. It is said that the payment was made in pursuance of an oral contract made by him with his brother at the time of the submission, that each would pay the amount of any award that might be made against him, and, further, that, at the time that payment was made, Mr. A. D. Wilson was not fully informed as to the facts. As to this, it may be said that the agreement to pay was no more than that necessarily implied from the articles of submission; and, while a labored effort is made to show that Mr. A. D. Wilson was not fully informed of the facts at the time he paid the award, yet we think it sufficiently appears that he was informed of all the material facts upon which he now relies. He was present during the taking of testimony against him, and was given an opportunity to introduce evidence in rebuttal. Complaint is now made of ne action of the arbitrators in allowing A. D. Wilson only three or four days in which to disprove W. J. Wilson's accounts. It is not claimed that the arbitrators were asked to extend the time. He took the hazard of submitting the controversy upon the testimony produced, and after an award has been returned against him it will not be opened to permit him to introduce additional evidence which might have been procured at the time, with proper diligence. Todd v. Barlow, 2 Johns. Ch. 551. Moreover, he accepted the benefits of the award, and has neither restored, nor offered to restore, Mr. W. J. Wilson to the position occupied by him before the award was made. In addition to this, the testimony shows that Mr. A. D. Wilson, after paying the amount of the award to W. J. Wilson, immediately caused Wilson & Tucker to secure him for the amount due from W. J. Wilson upon the herd account. The allegation of the bill that the arbitrators refused to administer an oath to the witness Rowan is disproved by

sault with a deadly weapon. The verdict thus found element 1, and element 2, as above noted. It did not find the intent to inflict upon the person of another a bodily injury; nor did it find either that there was no considerable provocation, or that the circumstances of the assault showed an abandoned or malignant heart. It is clear that the jury did not find the defendant guilty o felony, because they omitted to find the elements required to constitute the felony. The verdict found simply an assault, and it found that that assault was made with a deadly weapon. See State v. Carroll, 13 Mont. 33 Pac. Rep. 688; Territory v. Willard, 8 Mont. 328, 21 Pac. Rep. 301; Territory v. Stocker, 9 Mont. 6, 22 Pac. Rep. 496. The judgment being for a felony, upon a verdict which found only a misdemeanor, the judg ment must be reversed, and the case remanded, and with directions to the district court to assess a penalty upon the verdict for an assault, as provided in section 58, Crim. Laws; and, if a fine is enforced by imprisonment, then the imprisonment already undergone by defendant shall apply in satisfaction of such confinement, as far as it satisfies the same.

HARWOOD, J., concurs. PEMBERTON, C. J., did not participate in the hearing or determination of this case.

(13 Mont. 377)

FIRST NAT. BANK OF HELENA v. NEILL et al. (Supreme Court of Montana. Oct. 2, 1893.) JUDGMENT-DEFAULT-RETAXING COSTS.

1. Plaintiff, having sued H., garnished a public board, who answered that they had moneys in their hands belonging to H.'s firm, but did not know which member or members were entitled to them. Plaintiff took judgment against H., and brought suit against him, two of his partners, and the board. The board did not answer, but the others joined issue, on which it appeared that H. had no interest in the moneys due. Held, that plaintiff could not take judgment against the board, as having, by its failure to appear and answer, admitted the debt to H.

2. Code Civil Proc. § 509, provides that if any party shall include in his verified memorandum of costs and disbursements necessarily incurred, any item to which he is not entitled, and his adversary shall prevail with a motion to retax, "there shall be taxed as a part of the cost of such motion, a docket fee of twenty five dollars." Held mandatory in favor of the party moving to retax, and not within the court's discretion.

Appeal from district court, Lewis and Clarke county; William H. Hunt, Judge.

Action by the First National Bank of Helena against Henry Neill, John S. M. Neill and the board of commissioners of Lewis and Clarke county. Judgment against plaintiff for costs. Plaintiff appeals.

Statement of the case by the justice delivering the opinion:

The plaintiff herein is a judgment creditor of the defendant Henry Neill. It brings

this action to obtain moneys which it claims are in the hands of defendant the board of county commissioners, and which belong to its judgment debtor, Henry Neill. In the former action of the bank against Henry Neill, the action in which it obtained judg ment against Neill,-it caused notice of garnishment to be served on the board of county commissioners. To that notice of garnishment the commissioners replied that there was a contract between the commissioners and R. A. Bell & Co., and that that company consisted of R. A. Bell and Henry Neill, the defendants herein; that there was a considerable amount of money remaining due to said Bell & Co.; and that "the board does not know to whom they may be due, other than above stated, but they are due to whomsoever may be entitled thereto under the contract." In this action, answers were filed by R. A. Bell and Henry Neill and John S. M. Neill. The board of commissioners filed no answer. The plaintiff alleges in its complaint that Bell had sold his interest in the partnership to Henry Neill, but this allegation was abandoned upon the trial. The case was tried to a jury. Upon the trial, it was shown that there was in the possession of the board of commissioners, on account of the contract mentioned, $1,581.14. It was admitted by all parties that defendant Bell was entitled to receive of this money $965.11. Evidence was taken, and the jury made findings, which were adopted by the court, as follows: Henry Neill assigned his interest in the contract to John S. M. Neill February 4, 1892, which was prior to the garnishment in the case of the bank against Henry Neill. N. J. McConnell had a third interest in the firm of R. A. Bell & Co. Henry Neill and John S. M. Neill had drawn out all their share in the moneys upon said contract. The sum of $530, in addition to the amount awarded to Bell, now in possession of the board, is the property of N. J. McConnell. On the 25th of March, 1892,-the date of the garnishment of the board of commissioners,Henry Neill had no interest in the profits or proceeds of said contract. Prior to that date he had drawn out, or sold to John S. M. Neill, all his interest in the contract, and the county commissioners knew this fact before the service of the garnishment. Upon these findings the plaintiff asked the court for judgment against Henry Neill and John S. M. Neill and the commissioners of Lewis and Clarke county. This motion was by the court denied, and judgment was ordered entered against the plaintiff for costs. The plaintiff appeals from this judgment.

Toole & Wallace, for appellant. Smith & Word, for respondents.

DE WITT, J., (after stating the facts.) It is observed that the plaintiff herein was a judgment creditor of the defendant Henry

Neill, in an action other than the one at bar. In that action the defendant herein the board of county commissioners was garnished. It replied that under a contract between it and the firm of R. A. Bell & Co., of which Henry Neill was a member, there were moneys due to that firm. On the trial of this case, it developed that part of the moneys in the hands of the board of county commissioners belonged to Bell. This was conceded by all parties, and was so found. It also appeared, and was found, that the remainder of the moneys belonged to one N. J. McConnell, a member of the firm of Bell & Co. So that the result of the trial established that the board of commissioners, garnishee in the case of Bank v. Henry Neill, had no money whatever belonging to Henry Neill. Why, then, should the district court enter a judgment against the board of commissioners, the effect of which would be to require that board, as garnishee, to pay moneys to the judgment creditor of Henry Neill, when it was determined that such board, garnishee, had no funds of said Henry Neill, the judgment debtor? The plaintiff, and appellant herein, answers this query by relying upon the fact that in this case the board of commissioners, one of the defendants herein, did not answer in this case, or appear in the trial, and as a consequence the allegation of the complaint that the board had funds of Henry Neill must be taken as true. We cannot concede this view. The board of commissioners had no interest in this action. It held moneys due to R. A. Bell & Co., as it stated in its reply to the garnishment. It was of no consequence to it how this money was distributed among the members of the firm of R. A. Bell & Co. The board was simply a stakeholder. The matter as to whether the judgment debtor of the bank had an interest in this stake was litigated, and determined adversely to the bank, plaintiff. This was determined on issues made by defendants' answer. The findings are not attacked. They are therefore all true. Henry Neill had no interest in the funds in the hands of the board of commissioners. Therefore, there was nothing for the bank to reach, and judgment in its favor against the board of county commissioners was properly refused.

The plaintiff, having appealed from the judgment, asks us to review the action of the district court in refusing to tax a docket fee of $25 against the defendants, upon the granting of plaintiff's motion to retax the costs. Section 509, Code Civil Proc. Such review may be had on an appeal from the judgment. Rader v. Nottingham, 2 Mont. 157; Hibbard v. Tomlinson, Id. 220. The Code of Civil Procedure has the following provisions: "The party in whose favor judgment is rendered, and who claims his costs, shall deliver to the clerk of the court, within two days after the verdict or decision of the

court, a memorandum of the items of his costs and necessary disbursements in the action or proceeding; which memorandum shall be verified by the oath of the party, or his attorney, stating that the items are correct, and that the disbursements have been necessarily incurred in the action or proceeding." Section 507. "But such memorandum need not include the legal fees and costs of any officer of the court, or any witness fees when an affidavit of such witness' attendance is required by law to be made." Section 508. A witness is required by law to make his affidavit of his per diem and mileage. Section 511, Code Civil Proc. The defendants filed their memorandum of costs and disbursements, which were duly verified. Such memorandum included, as it need not, (section 508,) sheriff's costs, at $4.40, and witness fees of John P. Ketchum, $3, as disbursements by defendants. The plaintiff moved to retax the costs. On this motion the court reduced the sheriff's fees from $4.40 to $2.20, and struck out the witness fees of John P. Ketchum, $3, because, although he was summoned by defendant, he was not called to testify, and appeared to be an unnecessary witness. The defendants, having prevailed in their motion, and having sucIceeded in retaxing the costs, insist that the court should tax as a docket fee the sum of $25. They relied upon section 509 of the Code of Civil Procedure, which is as follows: "If any party shall include in such memorandum any item to which he is not entitled, or if any clerk, sheriff, referee, or other officer shall include such item in the taxed costs, and a motion to retax the same shall be made by the party against whom the same is taxed, and if such motion to retax shall prevail, there shall be taxed as a part of the cost of such motion, a docket fee of twenty five dollars, and judgment therefor, with the other costs allowed by law, shall be entered against the party, sheriff, referee, clerk, or other officer who so unlawfully taxed the same, and the same may be off-set against any costs or judgment in favor of the party or officer so improperly taxing such cost, and against the party making such motion; or if no such judgment exists, the court may direct that the party making such motion have execution therefor." The court refused to tax this docket fee. This is assigned as er

ror.

The appellant contends that this provision for taxing this $25 is mandatory. The respondents insist that it is directory only, and that, therefore, it was a matter of discretion on the part of the court. The language of section 509 is, without question, mandatory. It is, "shall be taxed." Is there reason, under the rules of construction, why this clear mandatory language should be construed to be directory? Before a provision, mandatory in terms, is held to be directory, some reason should be advanced for so doing. This sec