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HURLEY DECIDES 1
NOTED PLOWING CASE JUDGE CALLED IN HERE SETS ASIDE ORDER GRANTING A NEW TRIAL. In the celebrated "plowing case" of H. C. Waite against C. E. Shoemaker & Company, Judge C. C. Hurley, of Miles City, lias announced a decision in favor of the plaintiff upon the mo tion to set aside the order granting a new trial. This action was brought^ by Mr. Waite to recover upon a contract for a large amount of plowing done by traction engine. The defendant claimed that the work w'as not performed in accordance with the contract and the trial was most stubbornly contested. A number of lawyers were engaged on the trial and eacli side had nu merous witnesses. The jury found for the plaintiff for something like $1,700 and later Judge E. K .Cheadle sus tained a motion for a new trial. Upon this the plaintiff made a mo tion to set the order for a new trial aside and Judge Hurley heard this, Judge Ayers being disqualified. The case is one that has created such wide spread interest that we give Judge Hurley's decision in full: The Decision. This matter comes on for hearing upon the plaintiff's motion to set aside an order sustaining defendant's mo tion for a new trial. It appears this action was tried in the District Court of the Tenth Ju dicial District of the State of Montana in Fergus County, and judgment en tered in favor of the plaintiff on May 9, 1912; that thereafter defendant moved for a new trial; that an affi davit of disqualification intending to disqualify E. J. Cheadle, judge of said court, was filed on October 14, 1912; that on October 14, 1912, before the filing of said affidavit, defendant's at torney served notice upon plaintiff's attorney that said motion for new trial would be called up for hearing be fore the Hon. E. K. Cheadle, judge, at chambers, on October 19, 1912, or as soon thereafter as counsel could be heard; that thereafter and on October 21, 1912, defendant's motion for new trial was set for hearing on Novem ber 11, 1912, and thereafter and on January 4, 1913, said motion was sus tained:. • Defendant contends that prior to the filing of said affidavit of disqualifica tion, an oral agreement was had be tween counsel whereby the hearing of said motion was set for a date certain before the Hon. E. K. Cheadle; that upon the date set, counsel for the re spective parties appeared before said judge to take up said motion; that by consent, hearing thereon was con tinued until counsel for plaintiff should have an opportunity to prepare their briefs. Attorneys for plaintiff deny that such an agreement was made. It appears that counsel for the respective parties appeared before the Hon. E. K. Cheadle on a Saturday in September, 1912, for some purpose pertaining to said motion for a new trial, but the respective counsel dis agree as to the purpose or cause of said appearance. Counsel for defend ant contend that they appeared for the hearing of said motion pursuant to an oral agreement, while plaintiff contends that they appeared at the re quest of defendant. It is not contend ed that said motion was argued, sub mitted or taken under advisement at that time or that anything was done concerning said motion except to dis cuss the advisability of taking said motion up at that time or agreeing to a postponement. 1 am of the opinion that the affi davits filed herein do not show that the hearing of said motion for a new trial wms begun at that time but it is contended by defendant that the hear ing had been set for that time and place by an oral agreement between counsel made out of court. This agree ment is not admitted by counsel for plaintiff. An agreement of this kind comes within the provisions of Sec tion 6389 and is not binding unless made as provided therein. It is argued that this is an executed agreement and consequently not w'ithih the pro visions of this section, but to assume that it is an executed agreement, nec essarily requires an assumption that the agreement was made and this can not be done in my opinion, where one party denies the making of the agree ment. It seems to me that the pur pose of this statute was to avoid just For Dyspepsia If you suffer Stomach Trouble, and you try our remedy, it won't cost you a cent if it fails. To psove to you that indigestior and dyspepsia can be thoroughly re lieved and that Rexall Dyepep 9 ia Tablets will do it, we will furnish the medicine absolutely free if it fails to give you satisfaction. The remarkable success of Rexall Dyspepsia Tablets is duo to the high . degree of scientific skill used in de vising their formula as well as to the care exercised in their manufacture, whereby the well-known properties of Uismuth-Subnitrate and Pepsin have been properly combined with Carminatives and other agents. Bismuth-Subnitrate and Pepsin are constantly employed and recog nized by the entire medical profes sion as invaluable in the treatment of indigestion and dyspepsia. Their proper combination makes a remedy invaluable for stomach relief. • We are so certain that there is nothing so good for stomach ilia as Rexall Dyspepsia Tablets that we urge you to try them at our risk. Three sizes, 25 cents, 50 cents, and $1.00. You can buy Rexall Dyspepsia Tablet* la this community only at our store: WILS0N-SEIDEN DRUG CO. Lew Is town The Sanatt Start Montana There is a Rexall Store in nearly every town end city In the United States, Canada and Great Britain. There is a different Rexall Remedy for nearly every ordinary human ill— each especially designed for the particular ill for which it is recommended. Tim Recall Stores are America's Greatest Drug Stores such controversies as this and to re lieve the court from deciding the merits of an oral agreement made out of court where the respective counsel themselves do not agree as to the terms of the purported oral agreement. In my opinion, the minutes of the court are the controlling feature in this case and in the absence of an application to amend them to conform to the facts, they are conclusive as to the proceedings heretofore had herein; (State ex ret Mackey vs. Dis trict Court, 40 Mont. 359; Boynton vs. Crockett, 69 Pac. 869). I am of the opinion that the proceeding begun herein is a proper proceeding in a matter of this Kind under the authority of State ex rel Grogan vs. District Court, 44 Mont. 72. It is argued that the court had au thority to set aside the judgment and grant a new trial for reasons not stated in defendant's motion, but this position is not tenable for the reason that it appears from the minutes of the court that it was defendant's mo tion for a new trial that was granted and it would seem to necessarily fol low that the motion was granted up on none of the grounds urged therein. In my opinion, the minute entry of the court is conclusive as to the grounds upon which the new trial was granted (Weisser vs. S. P. R. R., 83 Pac. 439; Ben Lomond Wine Co. vs. Sladky, 75 Pac. 333; Newman vs. Overland Pacific Ry. Co., 64 Pac. 110). It therefore follows that plaintiff's motion to set aside the order sustain ing defendant's motion for new trial made and entered on January 4, 1913, should be granted and the said motion is hereby granted and the said order sustaining defendant's motion for a new trial is hereby set aside and an nulled. Luke McLuke Says There are twice as many marriages as divorces because you can get mar ried for $3 and it costs $300 for a divorce. Beauty may be only skin deep, but ugliness goes all the way through. The day after a woman moves into a house she discovers some other house that she likes better. It isn't a man's enemies who get hint into trouble, it is his fool friends. A woman can be so contrary that she will marry a man just because she thinks some other woman loves him. When the honeymoon is over and wifie begins to muzzle him, a man will dig up his marriage license and read it over carefully to make sure that tne clerk didn't make a mistake. A woman may not have much of a constitution, but she is always there with the by-laws. When a canvasser who is selling some fool dingus gets his foot in the door a woman will always say, "No, I don't want it," at least six times. But before she says it the seventh time she realizes how perfectly use less the dingus is and she signs a con tract to pay a dime down and a dime a week for seven years. Divorce is the lifeboat of the old ship Matrimony. When a woman goes visiting that is her way of getting even with some other woman. The newest styles in ladies' stock ings have pockets in them. But the women will hardly imitate the men and stand around with their hands in their pockets. A militant suffragette announces as a threat that men will see more of women this year than ever before. Shoot the moon, sister. We are from Saint Joe. A flat-chested girl, who has too much sense to imagine that you would believe that black was white, will come down town some Monday morning wearing a 38 bust and expect you to believe nature did it. ooooooooooooooooo O o O LATEST FASHION NOTES. O O o ooooooooooooooooo Large hats are seldom seen. All-white is a great favorite this year. Bright colors will be popular for the tailor suit. Lingerie dresses are also worn later in March. Lingerie dresses will show lace and tulle trimming. Chiffon sashes form draperies on many of the new gowns. Lingerie embroidery is used as a trimming on souple silks. The combination of black and white continues to be popular. The draped mantles to match the dresses are especially effective. Tabs and buttons are a popular trim ming for children's clothes. The coming season promises to be a wonderful season for silks. Broad belts of self material are seen on some of the tailor coats. Skirts are draped and clinging, hav ing long, narrow-pointed trains. The afternoon gown is a necessity in the chic woman's wardrobe. The fashionable coiffure clings more closely than ever to the head. Th every fine veil sof net and spot ted tulle are worn by chic women. Many souple ribbon bows are used to rim the half season millinery. Many beautiful evening gowns are composed of rich gold brocaded tis sues. Green in many tones is also a fa vorite color, especially dark Venetian green. Many afternoon dresses appear in crepon soie, de chine and creipon gauffe. The plain round skirt promises to be a valiant rival to the draped and slashed one. The Medici collar is found among the items of dress which mark the spring models. Charming silk and lace-trimmed dresses or mousseline-draped satin toilettes are used. • A pretty coat for a child is made of tobacco brown cloth trimmed with coral embroidery. Very successful gowns are fashioned in coat effect of ecru lace and con trasting satin. Many of the new coats display the half-upstanding collar, lined with dark musseline or velvet. The small satin and straw hats are trimmed with paradise plumes or tulle and small roses. Children's white serge dresses are raided with very narrow tapestry blue soutacne braid. Favored ornaments for evening coif fures are narrow bands of ribbon vel vet to match the costume. Lace, satin and straw are ingeni ously worked together in the making of some of the latest hats. Many of the half-season suits are of Ottoman silk serges, popeline and a ribbed silk-faced material. All-white hats promise to be ex tremely poular. They are trimmed with large bows of supple ribbon. The veiling of satin revers with mousseline or voile is a pretty notion on some of the dressy tailored suits. Small flowers dotted all over the crown of a fine crin straw-brimmed hat is a pretty style worn by young girls. Figured voile and marquisette are attractively used as linings to some of the satin and crepon soie coats. Very broad stoles of ermine are worn with the black velvet costumes. Some of these are almost as large as shawls. For toilettes de soiree metal woven supple tissues and rich brocades seemed to be the most popular ma terials. One or two models of sapphire blue draped satin display the short coats trimmed with braiding in military style. Blouses of old rose crepe de chine are very smart. With these are tyorn chemisettes of cream-colored net or lace. Many pretty afternoon frocks are made of black panne velvet, com bined with Bohemian, duchesse, rose point or Alencon lace. Hand embroidery of silk and wool with needle-worked lace will appear beneath colored mousseline cassock Russian blouse wraps. Blind Men and Fame. Answers: The most famous blind man is undoubtedly Sir Francis J. Campbell, LL. D„ P. R. G. S., F. S. A., etc., principal of the Royal Academy of Music for the Blind at Upper Nor wood, London. This grand old man is the only blind person who has ascended Mt. Blanc, and he is familiar with all the Alpine peaks. Sir Fran cis, who will shortly celebrate his eightieth birthday, was four years old when he lost his sight. Physical culture is an all-important item in the daily routine of the blind, although recreations and hobbies are also to be recommended. At Waver tree there is a school where the blind are taught poultry farming. Captain P. Pierson-Webber, county adviser and lecturer in poultry culture to Warwickshire and Northants, is its pioneer, and furnishes a typical in stance of how a soldiers' doggedness will prevail. Owing to sunstroke he lost his eyesight whilst serving his colors in India, but afterward turned his attention to poultry farming. To day he says: "Give me a piece of land with two square yards per bird, and at the end of one year you shall have 3,000 eggs from twenty hens." Taking a fowl in his hand, he de cides its variety according to the num ber of its toes, shape of its comb and body, and other peculiarities. By tasting any grain, or poultry food, he is able to tell the difference between good and bad; whilst eggs are tested for their freshness by means of wa ter—i. e., whether the eggs float or sink. Real Coffee. The Brazilian, amid the marble splendors of his New York hotel, sipped the tiny cup of black coffee that was to cost him 25 cents. "This isn't bad," he said, "but it isn't like the coffee we drink on my father's coffee plantation in Brazil. "There, when a coffee craving seizes you, you take a few handfuls of green coffee berries, and after rejecting all the imperfect ones among them, you place these picked berries in an iron ladle and roast them over an open fire. "You roast them till they begin to smoke. Then, before they are charred, you take them off, drop them into a mortar and pound them with a pestle carefully. "Meanwhile a cup of cold, pure wa ter has been set on the fire. When it comes to a boil, the ground coffee is thrown into It—a tablespoonful to a cup—and the boiling is allowed to go on for about three minutes. "Now you drink the coffee. You drink it without straining it. The grounds lie at the bottom of the cup, and, if you don't shake it, the fluid is as clear as crystal—crystal-clear, black, fragrant. "The French can boast as they please of their filtered coffee—I tell you, there's nothing like the boiled coffee of Brazil, all picked, roasted and prepared within a few minutes un der the open sky." Easter Early in 1913. Dressmakers and milliners will have to work livelier this winter than they have in many years in order to get Easter gowns and hats ready for their customers on time, says the Washington Star. Not in ninety-five years has Easter come any earlier in the year than it will m 1913 and It Will not come as early again for an other eighty-seven years. The next Easter falls on March 23. Not since 1818 did it arrive sooner in the year. In that year it came on March 22. Not again until the year 2000 will it come so early again. Sixty-seven years ago and fifty-six years ago, respectively, Easter oc curred on the same date as it does In 1913. The next year when Easter will pay an early visit will be in 1940, when it will arrive on March 24. In 1951 it falls on March 25. It will come again on March 26 in 1967, 1978 and 1989. The latest Easter of the nineteenth and twentieth centuries was in 1859, when it fell on April 24. In 1848 and 1905 it occurred on April 23. Last Easter was on April 7. As Easter is the most important of all the movable feasts of the Christian church, It determines all the rest. Hence next year Ash Wednesday comes on Feb. 5, Ascension Thursday, May 1, and Pentecost, May 11. Easter can never come earlier than March 22 and the only time it did or could do this from the year 1801 to 2000 was in 1818. This was made pos sible by having a full moon on March 21 and the following day being Sun day. The rule provides that Easter shall be the Sunday that follows that four teenth day of the calendar moon which falls upon or next after March. Maroney Flies at Helena. Helena, P'eb. 16.—The lure of spring that was in the atmosphere today proved too strong to be resisted by T. T. Maroney, the only licensed avia tor in Montana, and he went joy-riding in his 75-horse-power biplane. On the first flight at 3 o'clock the airman, starting from within the city limits, swept far out over the valley and then, returning, poised over the busi ness center of Helena and spiraled downward 755 feet. He then darted eastward, circled the capitol building, passed over his home on Eighth ave nue and alighted at the starting place. Let's All Raise Sugar Beets! Chicago Inter Ocean: The depart ment of agriculture is appealing to the American farmer to go in for the cultivation of the sugar beet. There are 2,000,000 short tons of beets now imported annually. These beets should be raised at home. The average American consumes eighty-three pounds of sugar a year and only ten pounds of it is produced in this country. The money that pays for all this sugar should be kept at home. We're a Poetical People. The Americans, of all nations at any time upon the earth, have probably the fullest poetical nature. The United States themselves are essentially the greatest poem. In the history of the earth hitherto, the largest and most stirring appear tame and orderly to their ampler largeness and stir. Here at last is something in the doings of man that corresponds with the broad cast doings of the day and night. Here is action untied from strings, neces sarily blind to particulars and de tails, magnificently moving in masses. Here is the hospitality which forever indicates heroes. Here the perform ance, disdaining the trivial, unap proached in the tremendous audacity Opening of 20 New Towns in Montana Public Auction ot TovOn Lots There will be sold at public auction town lots in twenty of the new towns located on the Grass Range, the Roy, the Dog Creek, the Great Falls—Choteau and the Gallatin Valley extensions of the Chicago , Milwaukee St. Paul Railtfay in Montana which are now under construction. The towns, dates and places of sales are as follows; AND PLACE OF SALE. Lewistown, Montana Lewistown, Montana Menard, Montana Ingomar, Montana • Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Lewistown, Montana Great Falls, Montana Great Falls, Montana Great Falls, Montana Great Falls, Montana Great Fails, Montana Great Falls, Montana These sales afford an excellent opportunity to secure choice business lols in towns that are in the infancy of development. The towns each serve a rich tributary country and afford splendid opportun ities for the establishment of various kinds of business enterprises. The exten sions on which they are located, it is expected, will be completed and in operation by midsummer of this year. Further particulars about the towns and the sales can be secured by addressing the Milwaukee Land Company GEO. W. MORROW, General Land and Townsite Agent 1301 Railway Exchange Building, Chicago or Lewistown, Montana TOWNS LOCATED ON THE DATE Forest Grove, Montana Grass Range Line March 8 Roy, Montana Roy Line March 8 Menard, Montana Gallatin Valley Line March 12 Ingomar, Montana Main Line March 15 Coffee Creek, Montana Great Falls Line March 22 Winifred, Montana Dog Creek Line March 22 Denton, Montana Great Falls Line April 5 Warwick, Montana Great Falls Line April 5 Arrow Creek, Montana Great Falls Line April 19 Square Butte, Montana Great Falls Line April 19 Armens, Montana Roy Line May 10 Geraldine, Montana Great Falls Line May 10 Christina, Montana Dog Creek Line May 24 Suffolk, Montana Dog Creek Line May 24 Highwood, Montana, Great Falls Line June 7 Shonkin, Montana Great Falls Line June 7 Agawam, Montana Choteau Line June 21 Montague, Montana Great Falls Line June 21 Farmington, Montana Chateau Line July 5 Bigsag, Montana Great Falls Line July 5 of its crowds and groupings, and the push of its perspective, spreads with crampless and flowing breadth, and showers its prolific and splendid ex travagance. One sees it must indeed own the riches of the su mm er and winter and need never be bankrupt while corn grows from the ground, or the orchards drop apples, or the bays contain fish. Other states indicate themselves in their deputies—but the genius of the United States is not best or most In its executives or legislatures, nor in its ambassadors or authors, or colleges or churches or parlors, nor even in its newspapers or inventors—but always most in the common people, south, north, west, east, in all its states, through all its mighty amplitude.— Walt Whitman. Horse Deficiencies. Engineering Magazine: Horses care fully used do not work more than 50 per cent of the days out of a year. It is possible to get 75 per cent of the working days from a horse, but this is done at the expense of his endur ance; he wears out more quickly. On the other hand, a good motor truck is in prime condition 90 per cent of the time, taking out all of the time lost in repairs and adjustments, and in 90 per cent of the year's working days the motor truck will go practically 24 hours a day if necessary. When it is in commission, it is up to full effi ciency the whole time. There is another important consid eration in the difference between horse and motor transportation. The horse grows older every day whether he works or not. He is wearing out with age all the time even If he spends most of his hours in a stall. The motor truck wears out only when it is in use. When it is idle there is no expense connected with it what ever, except the interest on the invest ment. A horse that has been used in delivery or hauling service, especially on city pavements, is of little value for any other use when he is too far gone to be valuable for that. An old wagon or horse dray is absolute junk. He Married a Bandit. Atchison Globe: Several years ago a big, broad-shouldered Atchison man married a sweet little thing about five feet high with golden hair, big blue eyes, and tender, clinging ways. He wanted to live in a four-room house and have her do her own work. She wanted to go to the biggest hotel in town and live. They went to the hotel. From there they moved into a big house, and kept a "girl." First the little married woman's sister came to live with them. Then her brother had a room at the house, and a latch key. Every once in a while she sent her parents money. She bought her mother dresses, and her father suits of clothes. She had her kin for visi tors, and her friends were entertained at the house. Her drygoods and household bills were too large for the big, broad-shouldered man to meet. He began to shrivel up, and now and when that little, worried-looking old man goes to work early in the morn ing and returns home late in the eve -1 ning people who know his history point him out and say; "That man married a bandit." Where the 'Highbrows Browse. The Popular Magazine: In the of fice of Brand Whitlock, the mayor of Toledo, Ohio, there is a well-sustained atmosphere of culture, not to mention a subtle suggestion of literature and high art. Brand is a great reader of what the chosen few call classics. Although he writes for the newspa pers and magazines, he reads very few periodicals, and the men who work for him have a contempt for anything that was penned later than the time of Confucius. J. P. Coakley, who at one time "cov ered" the mayor's office for a Toledo newspaper, had the Chicago Examiner delivered to him at the mayor's office every day. The time arrived when for six consecutive mornings he could not find his paper. Finally, in despera tion, he went up to Henry Frisch, the guardian spirit of the office, and asked if the paper had been left for him. "Certainly, yes," replied Frisch, ele vating his Teutonic nose. "Well, where is it?" asked Coakley angrily. "I've been throwing it into the waste-paper basket." "What for?" "Why," said Frisch contemptuously, "tain't literature." U. S. Could Make Money. Philadelphia Press: If the post master general has a deep sense of the commercial value of stamp col lecting he will make a mint of money for his service out of an error in de signing a Panama exposition stamp. The picture of San Pedro Miguel was marked "Gatun Locks," and 20,000,000 stamps had been printed before the mistake was discovered. But a freak of this sort drives the philatelists wild, and they would give any money for specimens of the suppressed stamp. ATENTS VALUABLE INFORMATION FREE. If you have an In vention or any patent mat ter, write Immediately to W. W. WRIGHT, registered attorney, Loan & Trust Bldg., WASHINGTON, D. C. Manufacturer of and Dealer in HARNESS 8ADDLE8 TURF GOODS Etc. All Repairs Oiven Prompt Attention *•••••••••••••• Sign of the Big Collar 109 Main St. From our sanitary market will be found juicy, tender and delicious in iavor. We are noted foi our superioi rrade of home-rendered lard and •.moked meats. ABEL BROS.