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Stetson & Houghton, for the appellant.

J. A. Barham, anl Napthaly, Friedenrich & Ackerman, for the respondent.

Ross, J. The question here is, whether or not the court below erred in sustaining a demurrer to the third amended complaint, to which only Xarissa Hill and H. W. Woodward were made parties. defendant. This complaint charges that, on the eighteenth of December, 1875, one George W. Chester executed to the firm of Toklas, Hahn & Brown, or order, five promissory notes for the aggregate sum of two thousand three hundred and forty-one dollars and thirty-eight one hundredths, bearing interest at the rate of one per cent. per month. That at that time George W. Chester was the owner and holder of two promissory notes, each for the sum of three thousand three hundred and thirty-three dollars and thirtythree one hundredths, with interest at one per cent. per month, which two notes were executed by defendant Woodward to George W. Chester, or order, on the sixth of December, 1875, one of which matured one year and the other two years after date, and both of which were secured by a mortgage executed by Woodward on a tract of land situated in Kern county. That to secure the payment of his notes to Toklas, Hahn & Brown, George W. Chester assigned to that firm the Woodward note first maturing as also the mortgage securing its payment. That subsequently, to wit, on or about June 12, 1876, Toklas, Hahn & Brown assigned to the defendant, Xarissa Hill, the notes executed to them by George W. Chester, and also the Woodward note and mortgage which they held as security for the payment of said five notes of George W. Chester, and that the assignment was taken by defendant, Hill, with notice of the facts. That afterwards, to wit, on or about the fifteenth of November, 1876, defendant, Woodward, executed and delivered to the defendant, Hill, a conveyance of onehalf of the land embraced in the Woodward mortgage, for the "nominal consideration of five thousand dollars," which conveyance was recorded in the office of the recorder of Kern county, and at the same time and for no other consideration than the said conveyance, defendant Hill, surrendered to defendant Woodward, the Woodward note first maturing, and also executed to Woodward an instrument in writing purporting to release the Woodward mortgage in so far as it stood as security for the payment of the Woodward note first maturing, which instrument was thereupon duly recorded in Kern county. That the Woodward note maturing December 6, 1877, was paid at its maturity. That the Woodward note first maturing was never paid, in whole or in part, but that defendants, Hill and Woodward, "fraudulently colluded with each other and with the intent and design to cheat and defraud the said George B. Chester out of the surplus value of the collateral security aforesaid, over the amount due on the five George B. Chester notes aforesaid, and to convert the said surplus to their own use, contrived

first to bring about the transfer of the George B. Chester notes and collateral as aforesaid to defendant Hill, and then, still in pursuance of the same fraudulent intent and design, contrived that the mortgage should appear satisfied of record as aforesad, all of which facts were unknown to said George B. Chester, and to the plaintiff at the time, and were not discovered either by said George B. Ches ter, or by plaintiff, until some time after the said fifteenth day of November, 1876. That, as plaintiff is informed and believes, defendants, Hill and Woodward, claim to own the aforesaid Woodward land as tenants in common, discharged of the lien of the mortgage aforesaid." The complaint further charges that before the commencement of this suit, George B. Chester assigned all his right, interest and claim in the premises to the plaintiff, and that on the tenth of November, 1879, the plaintiff offered in writing to pay to defendant Hill the amount due on the five George B. Chester notes, and demanded that she deliver to him the Woodward note first maturing, and assign to him the mortgage securing the same, and in default thereof that she, the defendant Hill, pay over to the plaintiff the difference between the amount of the Woodward note first maturing and the amount of the five George B. Chester notes, each of which demands was refused. The prayer of the plaintiff is broad enough to include any and all relief that the nature of the case may admit of.

As the case is presented, the facts alleged must be taken as true. These facts show that the defendant, Hill, came rightfully into possession, by assignment, of the five Chester notes, and, as security for their payment, into possession, by assignment, of the Woodward note first maturing and the mortgage securing the same. These collaterals, the defendant, Hill, rightly held as security for the payment of the five Chester notes. But it is very clear that she had no power to accept from Woodward a deed for an undivided half of the mortgaged premises and in consideration thereof to surrender to Woodward the Woodward note first maturing. The complaint charges that this was a collusive arrangement between defendants Hill and Woodward, by which they fraudulently sought to cheat the plaintiff's assignee out of the excess of the collateral over the amount due on the five Chester notes. Of course, such an arrangement cannot be permited to stand. If, after trial, the facts shall be found to be as alleged, the deed from Woodward to Hill, and the release of the mortgage executed by Hill must be cancelled and annulled, the mortgage foreclosed and the proceeds of the mortgaged premises applied, first, to the costs of the foreclosure; next, to the amount due upon the five Chester notes, and the surplus, if any, paid over to the assignee of George B. Chester.

For the respondent it is said that the demurrer was properly sus tained, because the complaint contains two distinct causes of action, which are not separately stated; that is to say, "one to set aside the release of the mortgage, the other to foreclose the mortgage. The point is not well taken. The annulling of the release of the

mortgage is a necessary preliminary to the foreclosure of the mortgage, but it is not a distinct cause of action which must be separately pleaded. It is but one of the elements that go to make up the cause of action. A court of equity does not deal with matters by piecemeal. In the present case all of the parties in interest are before the court, and the rights of each may be enforced and protected by one decree.

Judgment reversed and cause remanded, with directions to the court below to overrule the demurrer to the third amended complaint.

MCKINSTRY, J., and MCKEE, J., concurred.

No. 8,936.

DORLAND, ADMINISTRATRIX, ETC., v. CUNNINGHAM ET AL.

Department One. Filed March 6, 1885.

NEW TRIAL-Order Made oN, HOW FAR CONCLUSIVE.-An order regularly made by the superior court granting or refusing a motion for a new trial is conclusive, so far as such court is concerned. It has no power to afterwards set such order aside.

APPEAL from certain orders of the superior court of the city and county of San Francisco. The opinion states the facts.

J. M. Wood and J. C. Bates, for the appellants.

Tobin & Tobin, for the respondent.

MCKINSTRY, J. The notice of appeal points to two orders, alleged to be special orders after final judgment. The first is said in the notice to be an order made and entered December 27, 1882, vacating and setting aside an order made and entered August 21, 1882, denying defendants' motion for a new trial; the second, an order made and entered on the nineteenth of January, 1883, denying plaintiff's motion to have the order of December 27, 1882, vacated and set aside.

The transcript contains no order of August 21, 1882, or of any other date, which purports to be an order denying the defendants' motion for a new trial. There is in it a copy of an order made and entered August 21, 1882, vacating and setting aside "the motion for a new trial, granted August 16, 1882." August 16, 1882, the court had made an order in words following: "On motion of Messrs. Tobin and Tobin, and upon filing a stipulation therefor, it is ordered that a new trial be and the same is hereby granted." On the twenty-seventh of December, 1882, the court below ordered that the order theretofore, and on the twenty-first of August, 1882, given and made, vacating the order granting defendants a new trial, be set aside.

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If it be assumed that the order last mentioned (which is not in terms an order vacating an order denying defendants' motion for a

new trial), is the order referred to in the notice of appeal, as made on the twenty-seventh of December, 1882, should that order be reversed?

If the validity of the order of August 21, 1882, be conceded, the defendants' motion for a new trial has not yet, so far as appears, been determined. The proceeding for new trial is in fieri. If appellant should succeed in getting the order of December 27, setting aside the order of August 21, reversed, the defendants' motion for new trial would be left still pending in the court below. The court may grant or deny the motion for a new trial, or dismiss the appli cation for want of prosecution.

But the order of August 21, 1882, was manifestly erroneous. While it was not of itself an order denying the defendants' motion for a new trial, since that motion had already been granted, it operated, if valid, to vacate the former order, and thus to give plaintiff further opportunity to oppose the defendants' motion for a new trial, or the court an opportuniiy to make a new order without reference to that matter. The statute authorizes but one motion for a new trial, and makes the ruling thereon final, so far as the superior court is concerned. For aught that appears in the transcript, the motion to set aside the order granting a new trial was made ex parte, and upon the same papers as those used on the motion for a new trial. If the practice of moving to set aside an order granting or denying a new trial should be allowed, "the proceedings after judg ment would be interminable, for the last order could be vacated upon motion of the losing party, and so ad infinitum. There must be some point where litigation in the lower court terminates, and the losing party is turned over to the appellate court for redress:" Niles, J., in Coombs v. Hibberd, 43 Cal., 453. In the case just cited an order vacating an order refusing a new trial was reversed.

The code of civil procedure provides that an ex parte order may be set aside, and without notice. The court below was justified in making the order of December 27, setting aside the order (improvidently entered) vacating the order granting a new trial, and in entering the order denying plaintiff's motion to set aside the order of December 27.

Order appealed from affirmed.

Ross, J., and MCKEE, J., concurred.

WEST COAST REPORTER.

WHOLE No. 64.

MARCH 19, 1885.

VOL. V. No. 12.

SUPREME COURT OF MONTANA.

GRAVES v. NORTHERN PACIFIC RAILROAD COMPANY.

Filed January 7, 1885.

CONSTITUTIONAL LAW-RIGHT TO JURY TRIAL-DENIAL OF.--A law rendering a railroad company liable for cattle killed by it, at a value to be determined by appraisement, which appraisement is conclusive evidence of such value, is unconstitutional, as depriving the company of the right of trial by jury.

Appeal from the third district court of Meagher county. The opinion states the facts.

Sanders & Cullen, for the appellant.

Geo. F. Cowan, for the respondent.

GALBRAITH, J. This action was originally brought in the justice court of Meagher county. The facts were as follows, viz.: The complaint, after alleging in substance that the appellant is now, and was, at the time of the injury complained of, a corporation organized under the laws of the United States, and the owner of a certain railroad running through the territory of Montana and a portion of Meagher county, in said territory; and that the respondent was the owner of a certain mare, of the value of one hundred and sixty dollars, running in an inclosure adjoining the track and ground occupied by the railroad of the appellant, in the county of Meagher, and that on or about the seventh day of October, 1883, without the fault or neglect of the respondent, the said mare strayed upon the ground occupied by the railroad of the appellant; and that the appellant, at the time and place above stated, so carelessly and negligently run its locomotives and cars, that the same ran over the mare and killed her, to the damage of the respondent in the sum of one hundred and sixty dollars,-contains the following averment:

"That heretofore, to wit, on the twelfth day of October, 1883, at the said county of Meagher, and before the bringing of this action, under and by virtue of an act passed by the legislature of the territory of Montana, approved February 23, 1881, entitled 'An act to provide for the payment of stock killed or injured by railroads,' and an act amendatory thereto, approved March 2, 1883, this plaintiff, having made and filed the necessary affidavits, and having duly

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