land in question amounted to the sum of $75 to each of the respondents, and that said sums were tendered by the road overseer be fore the commencement of this action, and that said overseer had at all times been ready and willing to pay each of respondents said sum. The complaint sufficiently avers that the board had ordered and directed the county attorney to commence this action.

A careful examination of the complaint convinces us that it alleges facts showing a substantial compliance on the part of the county commissioners with all the require ments of the statutes relating to the condemnation of the necessary land for the road mentioned in the complaint. It is argued, however, on behalf of respondents, that the board of county commissioners, being a statutory board, must strictly comply with every requirement of this statute. The law does require the board to do all the things required by the statute, but in the doing of those things it is only necessary that they substantially comply with the statute. The argument contained in the brief of counsel for the respondents in support of the said demurrer is technical, and the objections are technical, and the lower court should have overruled the demurrer.

The judgment is reversed, and the cause remanded, with instructions to the lower court to set aside the order sustaining the demurrer and to overrule the same, and for further proceedings consistent with this opinion. Costs awarded to appellant.

SULLIVAN and STOCKSLAGER, JJ., con

cur.

(27 Mont. 66)

STATE ▼. McDONALD. (Supreme Court of Montana. July 9, 1902.) CRIMINAL LAW-STAY OF PROCEEDINGS— PENDING APPEAL.

A stay of proceedings until the bill of exceptions in a criminal appeal could be prepared should have been granted where the business of the trial court prevented an immediate preparation of such bill, and the court had extended the time therefor.

Appeal from district court, Silver Bow county; Jno. B. McCleman, Judge.

George A. McDonald was convicted of grand larceny, and applies for a stay of proceedings pending an appeal. Application granted. Hearing and opinion at chambers.

B. S. Thresher, for appellant.

BRANTLY, C. J. The defendant in this cause was convicted of the crime of grand larceny, and on June 26, 1902, was sentenced to serve at hard labor in the state prison for a term of one year. Thereupon he appealed to this court. He then applied to the judge of the district court for a certificate of probable cause. Pen. Code, § 2278. This application was denied. Application was then made to the same judge for bail

pending the appeal. This was also denied. A like disposition was made of an application to the district court for a temporary stay of proceedings to enable the defendant to prepare his bill of exceptions and his record on appeal, in order that he might apply to this court, or one of its justices, for a certificate of probable cause, and for bail pending his appeal. Thereupon, and on June 27th, the defendant applied to the supreme court for an order admitting him to bail. The court, after consideration, denied this application for the reason that there was presented with it no record on appeal containing the defendant's bill of exceptions. The order was made without prejudice, however, to another application to the court, or to one of its justices, for bail, or for a certificate of probable cause, when the bill could be presented in support of the application. I am now asked for an order staying proceedings under the judgment until the record upon appeal may be properly prepared. It appears that the business of the district court is in such condition that defendant's bill of exceptions cannot be prepared and certified to this court before the 25th of the present month, and that that court, for good cause, has enlarged the time for preparing it until that date. The district court should have granted the stay asked for until the bill could be prepared. People v. Lane, 96

Cal. 596, 31 Pac. 580. As the defendant is now situated, unless a stay is granted, the judgment of the district court will be in process of execution during the time required for the preparation of his bill of exceptions and the presentation of his record on appeal. No possible harm can result from a stay during this time. The effect will be simply to delay the execution of the judgment in the meantime, and until it can be determined whether the defendant is entitled to the relief which he seeks pending his appeal. I have therefore concluded to make the following order:

It is ordered that all proceedings against the defendant be stayed pending a settle ment of his bill of exceptions and his application to this court, or to one of its justices, for bail, or for a certificate of probable cause; but such stay shall not extend be yond Saturday, August 2, 1902. The defendant shall give at least three days' notice to the attorney general of any application made in pursuance of this order.

(27 Mont. 63)

STATE. BROADBENT et al. (Supreme Court of Montana. July 2, 1902.) CRIMINAL LAW-APPEAL-STAY OF JUDGMENT -CERTIFICATE OF PROBABLE CAUSE-ISSUANCE BY SUPREME COURT JUSTICE-STATUTES.

1. Const. art. 8, § 3, declaring the jurisdic tion of the supreme court, provides that each of the justices shall have power to issue and determine various enumerated writs, not including a certificate of probable cause. Pen. Code,

§ 2278, provides that an appeal stays execution of the sentence in all cases where there is filed with the clerk of the trial court a certificate of a justice of the supreme court that there is probable cause for the appeal. Held, that on the hearing of an application for a certificate of probable cause, where the state contended that section 2278 was unconstitutional, on the ground that the grant by section 3 of the constitution of jurisdiction to a justice amounted to a withdrawal of other authority, the constitutionality would not be determined, but the statute would be presumed valid.

2. Pen. Code, § 2278, provides that an appeal stays execution of the sentence in all cases where there is filed with the clerk of the trial court a certificate of the judge of such court or of a justice of the supreme court that there is probable cause for the appeal. A petition to a justice of the supreme court for a certificate of probable cause stated that the certificate was refused by the district judge, as appeared by the record in the transcript. The petition was not verified by oath. Held, that a contention that the petition failed to show refusal of the district judge was of no avail, since, while the recital as to refusal was no part of the record on appeal, it might be considered.

3. Pen. Code, § 2278, provides that an appeal stays execution of the sentence in all cases where there is filed with the clerk of the trial court a certificate of a justice of the supreme court that there is probable cause for the appeal. Held, that petitions to a justice for certificates of probable cause must be verified by the oath of the petitioner, or of some person in his behalf.

4. P'en. Code, § 2272, provides that a defendant may appeal from an order made after judgment affecting the substantial rights of a party. Id. § 2278, provides that an appeal stays execution of the sentence in all cases where there is filed with the clerk of the trial court a certificate of the judge of such court or of a justice of the supreme court that there is probable cause for the appeal. Held, that no appeal lies from a refusal of a district judge to grant a certificate of probable cause.

William Broadbent and another were convicted of grand larceny, and they appealed. Application for certificate of probable cause. Certificate granted. Hearing and opinion at chambers.

O. F. Goddard and Wm. Wallace, Jr., for appellants. Jas. Donovan, for respondent.

PIGOTT, J. Broadbent and Donaldson were convicted of the crime of grand larceny in the district court of the county of Dawson. Judgment of conviction was entered on the 3d day of March, 1902, from which, and an order refusing them a new trial, they have appealed to the supreme court. By the judgment each of them was sentenced to the term of eight years at hard labor in the state prison, and they are now in that prison. The transcript on the appeals is on file in the office of the clerk of the supreme court. On the 14th day of June, 1902, through their counsel, they presented to me a petition for a certificate of probable cause for their appeals, which I directed to be served by copy upon counsel for the state, and set the hearing for the 23d day of June. The petition and a copy of the order were duly served upon the attorney general, who, on the day set for the hearing, asked that t be postponed to the 30th day of June.

This was acceded to, and on that day the petition was submitted on briefs.

1. The attorney general challenges the jurisdiction of justices of the supreme court to entertain the petition. He suggests that the jurisdiction granted by section 3 of article 8 of the constitution of Montana does not confer upon a justice the power which the applicants ask me to exercise. His contention is that the grant by section 3 of jurisdiction to a justice is, or amounts to, a withholding of other authority, and that such an application as the one now made is cognizable only by the court, as distinguished from its justices. He therefore suggests that section 2278 of the Penal Code, which provides that a justice of the supreme court may issue a certificate of probable cause, conflicts with section 3, supra, of the constitution. Since the submission of the application I have not had the time or the opportunity to consider the point, save in a some what cursory way. I am not impressed with the suggestion of the attorney general that the section is obnoxious to the constitution; but, even if I were so impressed, it would be necessary that I should be satisfied of its unconstitutionality before I could be justified in declaring it void. A mere doubt of validity, or an inclination of opinion toward the view that it is violative of the organic law, is not enough to warrant the annulment of a solemn act of the legislative assembly. Upon a summary application of this sort, I am not disposed to investigate and decide the question, but prefer to assume the validity of the statute. The matter may be agitated at another time, and in some other proceeding.

2. To the petition further objection is made by the attorney general on the ground that it does not appear therefrom that the judge of the district court where the conviction was had refused a certificate of probable cause. The petition states that the petitioners applied to the district judge for such certificate pursuant to section 2278 of the Penal Code, and that it was by the district judge refused, "as appears of record in the transcript filed in this court." The petition is not verified by the oath of any one, but by reference to the transcript on appeal the fact that such eertificate was refused lamely and informally appears. True, the recital concerning the refusal of such certificate is not part of the record on the appeals, and should not have been inserted in the transcript; but, as a certified copy of the order containing it is before me, I may, doubtless, without impropriety, consider the recital as evidence of the refusal of the judge. Hereafter applications to a justice for certificates of probable cause must be verified by the oath of the petitioner, or of some person in his behalf.

3. Another reason advanced by the attor ney general for the denial of the petition is that under section 2272 of the Penal Code an appeal lies from the refusal of the district judge to grant the certificate. Suffice it to

The application for a certificate of probable cause must first be made to the district judge. When refused by him, it may be made to a justice of the supreme court.

4. Of the questions which, as the transcript shows, the petitioners seek to present on their appeals, one, at least, is fairly debatable. By this I mean that to the unprejudiced judicial mind a solution of the question against the appellants is not so easy that upon mere inspection the question itself may be characterized as frivolous, and their contention as plainly untenable. I am not prepared, therefore, to say that the appeals are palpably devoid of merit.

The certificate prayed for will be granted.

(65 Kan. 345)

GARDEN CITY v. MERCHANTS' &
FARMERS' NAT. BANK OF
DANVILLE, N. Y.

(Supreme Court of Kansas, Division No. 1. July 5, 1902.)

JUDGMENT-RES JUDICATA.

1. A final judgment for the plaintiff in an action against a city to recover on coupons which had been attached to bonds, purporting to have been issued by the city, where the defenses were that the bonds were not duly executed, nor issued for a lawful purpose, and were not a valid indebtedness of the city, is a bar to the reopening and reconsideration of the same defenses in a subsequent action between the same parties on other coupons attached to the same bonds.

(Syllabus by the Court.)

Error from district court, Finney county; Wm. Easton Hutchison, Judge.

Action by the Merchants' & Farmers' National Bank of Danville against the city of Garden City. Judgment for plaintiff, and defendant brings error. Affirmed.

Argued before JOHNSTON, CUNNINGHAM, GREENE, and ELLIS, JJ.

J. L. Seeds (Miller & Hoskinson, of counsel), for plaintiff in error. Jno. H. Atwood and W. W. Hooper, for defendant in error.

JOHNSTON, J. This was an action by the Merchants' & Farmers' National Bank of Danville, N. Y., to recover from the city of Garden City upon interest coupons which had been detached from refunding bonds previously issued by the city. The defense made was that the bonds were invalid because they were issued to take up an indebtedness incurred for the erection of a mill, which was a private enterprise, and also that the officers executing them had no authority to do so. In reply to this defense the bank, among other things, alleged that in another action between the same parties upon other interest coupons which had been attached to the same bonds, the same defenses had been set up by the city in the same court, and the same issues joined as in the present ac

action in favor of the bank, sustaining the validity of the bonds, and that, as the matters in litigation had been fully adjudicated, the city was estopped from making the same defense, and from further litigating the same matters and issues. A motion to strike out this part of the reply was overruled, and, as the testimony in the case conclusively established a former adjudication upon the issues presented in the present action, the court held the city was estopped to further prosecute its defense, and directed a verdict in favor of the bank.

The funding bonds in controversy were issued in pursuance of chapter 50 of the Laws of 1879, and contained full recitals showing that all the prerequisites to the regular issuance of the bonds had been complied with, and that they were regularly and honestly issued by the officers of the city. The funding bonds were purchased on the open market by the bank, without knowledge of any irregularities or defects in their issuance. As an original proposition, the bonds appear to be valid and binding obligations in the hands of the bank, which was an innocent purchaser. State v. Board of Com'rs of Wichita Co., 62 Kan. 494, 64 Pac. 45. But every objection now made to their validity was made and adjudicated in the first action, and, as the judgment then rendered was final and unreversed, the same matters are not open to another inquiry in another action between the same parties. "When a matter is once adjudicated, it is conclusively determined between the same parties and their privies, as to all matters which were or might have been litigated, and this determination is binding as an estoppel in all other actions, whether commenced before or after the action in which the adjudication was made." Chicago, K. & W. R. Co. v. Anderson Co. Com'rs, 47 Kan. 767, 29 Pac. 96; Hoisington v. Brakey, 31 Kan. 560, 3 Pac. 353; Boyd v. Huffaker, 40 Kan. 634, 20 Pac. 459; Shepard v. Stockham, 45 Kan. 244, 25 Pac. 559; Sanford v. Oberlin College, 50 Kan. 342, 31 Pac. 1089; McDowell v. Gibson, 58 Kan. 607, 50 Pac. 870. The main defenses in the original action were that the bonds were signed by the president of the city council, as acting mayor, without right or authority; that they were issued for a private purpose, and therefore did not constitute a valid indebtedness of the city; and that the bank knew, or should have known, of the defects and irregularities in the execution of the bonds. In that proceeding the court found that the bank was an innocent purchaser for a valid consideration, without notice of any defects; that there was a vacancy in the office of mayor of the city when the bonds were issued; that C. J. Powers, who signed the bonds, was then president of the city council, and acting mayor of the city, and was a proper officer to execute the refunding bonds; and, further, that the bonds were regularly issued, and

These

were valid obligations of the city. matters were brought directly in issue by the pleadings, and precisely the same defenses are set up and sought to be established in the present action. There is the identity of parties, issues, and purposes necessary to a bar under the doctrine of res adjudicata; and, as the judgment in the former proceeding was pronounced by a court of competent jurisdiction, it is a bar not only as to any further dispute as to facts, but also as to any further consideration of the law bearing upon the case. It is contended that there is a lack of identity as to the cause of action, because the action in this case is brought upon different coupons than were sued on in the former case. Both actions, however, were brought to recover interest upon the same debt. The coupons had all been attached to the same bonds, and in each case the right of recovery depended upon the validity of the bonds from which the coupons were detached. In Chicago, K. & W. R. Co. v. Anderson Co. Com'rs, supra, it was held that the rule of res adjudicata applies as well to the facts settled and adjudicated as to causes of action. In Furneaux v. Bank, 39 Kan. 144, 17 Pac. 854, 7 Am. St. Rep. 541, it was held that where a party makes a defense to an action on a note that was given for the purchase of machinery, and other notes were given as a part of the same transaction and for the same consideration, a judgment based on a defense made on the first of the notes is conclusive as to all the other notes. In Bissell v. Spring Valley Tp., 124 U. S. 225, 8 Sup. Ct. 495, 31 L. Ed. 411, there was an adjudication on coupons of municipal bonds, where the defense was that the municipality never executed the bonds, and that the bonds were not its obligations. This adjudication was held to be conclusive in a subsequent action brought by the same party on different coupons of the same bonds. See, also, Southern Pac. R. Co. v. U. S., 168 U. S. 1, 18 Sup. Ct. 18, 42 L. Ed. 355; Whitaker v. Johnson Co., 12 Iowa, 595. As the facts and the law brought in question here have been fully adjudicated between the parties, the city is precluded from attempting to show anything contrary to the determination first made. This view practically disposes of all that is meritorious in the case. There is nothing substantial in the objections to rulings on the testimony, and nothing is found which affords ground for reversal.

The judgment is affirmed. All the justices concurring.

(65 Kan. 314)

ATCHISON SAV. BANK ▼. WYMAN et al. (Supreme Court of Kansas, Division No. 1. July 5, 1902.)

MORTGAGE LIENS-PAYMENT OF TAXES-LIEN -EXECUTION-PRIORITIES.

1. The recitals in a mortgage that it is subsequent and subject to a prior mortgage do not estop the mortgagee herein or his assigns,

as between the two mortgagees, after a judg ment setting aside and canceling such pretended first mortgage has been rendered at the instance of the mortgagor, from asserting the priority of his mortgage lien over that of the lien of the first mortgagee, which had been set aside and canceled.

2. In an equitable action to adjust and determine the priority of judgments and other liens upon real estate, where it appears that, after the rendition of the judgments and the foreclosure of the mortgages, one of the mortgagees, to preserve the property from being deeded for unpaid taxes, pays the taxes, as between the lienholders he is entitled to a first lien on the real estate for the taxes thus paid. 3. Where two judgment creditors have failed for more than one year after the rendition of their judgments to cause executions to issue and be levied upon the land of the judgment debtor, the one of such two who thereafter first issues and levies his execution has priority over the other, who subsequently issues and levies.

(Syllabus by the Court.)

Error from district court, Atchison county; Z. T. Hazen, Judge.

Action by the Atchison Savings Bank against W. F. Wyman and others. Judgment for defendants, and plaintiff brings error. Affirmed.

Argued before JOHNSTON, CUNNINGHAM, GREENE, and ELLIS, JJ.

Jackson & Jackson, for plaintiff in error. Waggener, Horton & Orr and W. W. & W. F. Guthrie, for defendants in error.

GREENE, J. This action was begun by plaintiff in error to settle the priority of liens on the S. W. 4 of section 14, range 6, township 20, Atchison county. The court made numerous findings of fact and conclusions of law, and adjudged the plaintiff in error to hold the eighth and last lien on the real estate in controversy, from which judgment it prosecutes error to this court. Only the pleadings, findings of fact, and conclusions of law are before us.

Of

On December 13, 1878, C. G. Means, who was at that time a married man, occupying the real estate in controversy as a homestead, executed to the plaintiff in error notes to the amount of $10,000, and secured the same by a mortgage thereon. In the execution of these notes and mortgage, Malissa J. Means, the wife of C. G. Means, did not join. Her name was forged by her husband. this the bank had no knowledge. August 18, 1894, Means and wife executed their note and mortgage upon the same real estate to W. F. Wyman. In August, 1895, Wyman commenced his action to recover a personal judgment against Means and wife, and to foreclose his mortgage, making plaintiff in error and, other parties hereto defendants. April 26, 1896, judgment was rendered in said cause in favor of plaintiff in error against Means and wife on said notes in the sum of $12,692.29, and its mortgage decreed to be a first lien and foreclosed. Judgment was also rendered in favor of Wyman against Means

3. See Execution, vol. 21, Cent. Dig. § 235.