whether, under all the circumstances, and by the exercise of reasonable diligence, it should have had notice of it. In paragraph 3 the expressions "the defect" and "the unsafe condition" were inadvertently used, the court thus speaking for the moment as if the alleged defect stood as an admitted fact. The word "any" should have been used for "the" in each of the expressions, but, taking the whole charge together, we do not think the defendant has suffered prejudice. The cause seems to have been carefully tried, and, except in the particulars mentioned, the charge was correct, and fairly submitted to the jury all the questions involved in the case. The judgment and order appealed from are affirmed. Affirmed.

Where a second mortgage of church property did not purport to be the deed of the corporation, but was executed by the president and secretary of the trustees individually, and duly recorded, it was not necessary to make the second mortgagees parties to an action to foreclose a prior mortgage on the church property, since the second mortgage was not constructive notice that it was on such property.

Appeal from district court, Silver Bow county; John Lindsay, Judge.

Action to foreclose a mortgage by J. W. Shackleton against the Allen Chapel African Methodist Episcopal Church, S. V. Kemper, and another. From a judgment in favor of defendants Kemper, plaintiff appeals. Affirmed.

Robert Coombe, for appellant. Robt. McBride, for respondents.

PIGOTT, J. On the 6th day of July, 1892, the Allen Chapel African Methodist Episcopal Church, a corporation created under the laws of Montana, executed to Simeon V. Kemper its mortgage of land to secure the payment of its promissory note of that day for $3,500. On the 15th day of August, 1892, the mortgage was recorded in the office of the county clerk and recorder of Silver Bow county, Mont., in which county the land mortgaged is situate. On the 1st day of October, 1892, a mortgage purporting to be "between the trustees of the Allen Chapel A. M. E. Church, of Butte City, Montana, party of the first part, of Butte City, Montana, and J. W. Shackleton and F. S. Leck, of same place, party of the second part," was made, by which "the said parties of the first part, for and in consideration of the sum of two hundred and twenty-eight dollars

to

them in hand paid by the said parties of the

have granted, bar

second part, gained, sold, and conveyed . unto the said parties of the second part, and to their heirs and assigns, forever," the land which had been theretofore mortgaged to Kemper. The instrument was declared to be a mortgage to secure the payment of a certain promissory note "executed by the said first parties to the second parties, which said note is in words and figures as follows, to wit: "$228.00. October, the first, 1892. Six months after date we promise to pay to the order of J. W. Shackleton and F. S. Leck two hundred and twenty-eight dollars, at one per cent. interest from date per month, value received. Silas Fagan, Chairman of Trustees of Allen Chapel A. M. E. Church. Andrew Henson, Secretary." The attesting clause and subscriptions thereto are as follows: "In witness whereof the said parties of the first part have hereunto set their hands and seals the day and year first above written. Silas Fagan, Chairman of Trustees of Allen Chapel A. M. E. Church. [L. S.] Andrew Henson, Secretary. [L. S.]" This mortgage was recorded in the office of the county clerk and recorder of Silverbow county on the 6th day of October, 1893. Leck afterwards assigned his interest as mortgagee to the plaintiff, Shackleton. On July 30, 1895, Kemper brought an action against the corporation to foreclose his mortgage. Shackleton was not made a party. A decree of foreclosure was entered on the 4th day of November, 1895, and the property was sold by the sheriff to Kemper. No redemption having been made within six months after the sale, the sheriff, on the 6th day of May, 1896, executed a conveyance of the property to Kemper. Thereafter, and on the 2d day of July, 1896, the plaintiff, Shackleton, brought this action to foreclose the mortgage of October 1, 1892, making Kemper and his wife parties, and asserting that he has the right to redeem the property for the reason that at the time the action by Kemper was commenced the plaintiff, Shackleton, had a mortgage of record upon the property, executed by the Allen Chapel African Methodist Episcopal Church. The trial resulted in a judgment in favor of the defendants Kemper, but, so far as the transcript shows, no determination was made with respect to the rights of the plaintiff as against the corporation defendant. From the judgment in favor of the defendants Kemper, and from an order overruling his motion for a new trial, the plaintiff appeals.

There is but one question presented upon this appeal, or, rather, the determination of one question in favor of the defendants Kemper will render unnecessary the decision of any other. The question is, was the record of the mortgage of October 1, 1892, constructive notice to Kemper that the Allen Chapel African Methodist Episcopal Church, a corporation, had mortgaged to Shackleton the land theretofore mortgaged to Kemper? If it was, the plaintiff has the right to re

deem; if it was not, then, as against the defendants Kemper, the plaintiff is without any right whatever. It is not pretended that Kemper had actual notice of the mortgage to Shackleton. The plaintiff bases his alleged right of redemption upon the constructive notice which he contends was imputed to Kemper by the record of the mortgage to Shackleton and Leck. It is provided in section 1290 of the Code of Civil Procedure, which is substantially section 358, div. 1, Comp. St. 1887, that "no person holding a conveyance from or under the mortgagor of the property mortgaged, or having a lien thereon, which conveyance or lien does not appear of record in the proper office at the time of the commencement of the action, need be made a party to such action; and the judgment therein rendered, and the proceedings therein had, are as conclusive against the party holding such unrecorded conveyance or lien as if he had been made a party to the action." The trustees or directors are the governing or managing agents of a corporation. The president and secretary, when acting within the scope of their authority, are agents of the trustees or directors and of the corporation. Its business affairs must be transacted through agents. The common-law rule that deeds executed by an agent or attorney in fact should be executed in the name of the principal has not been abrogated in Montana. The rule, in part, finds expression in section 1504 of the Civil Code.

The mortgage to Shackleton does not purport to be the deed of the corporation. It is not named as the grantor, nor did it, so far as the instrument discloses, execute, or intend to execute, the grant. The mortgage is declared, in terms, to be between "the trustees of the Allen Chapel A. M. E. Church" of the one part, and Shackleton and Leck of the other. The trustees are described as the parties of the first part, and the mortgage recites that it is executed as security for the payment of a promissory note by Silas Fagan and Andrew Henson, chairman and secretary, respectively, of the trustees. Instead of affixing the corporate seal, the chairman and secretary affixed their own seals, expressly declaring that they did so. Of course, we do not mean to say that, if in the body of the mortgage the corporation appeared to be the grantor, the fact that the persons, after subscribing their names, used their own seals, or omitted to use any seal whatever, would prevent the instrument from being the deed of the corporation, it not appearing that the corporation was required to attest its action under seal. Section 1963, div. 5, Gen. Laws, Comp. St. 1887. Nor do we hold that, as between Shackleton and the corporation and persons having notice of the facts, the mortgage might not be upheld in equity upon proof being made that Fagan and Henson were duly authorized to act for the corporation. But

this consideration has no weight with respect to Kemper. Upon its face the mortgage to Shackleton was the act of persons other than the corporation which made the mortgage to Kemper. The record of the Shackleton mortgage could not constitute notice, for the design and purpose of the recording acts are to give notice that the owner, general or special, of the property has conveyed or incumbered it. The record is notice to purchasers from or under the same grantor, and an instrument executed by a stranger to the title, whose authority does not appear of record, is not within the purview of the acts. This seems clear. Hager v. Spect, 52 Cal. 579; Wade, Notice, § 205; Devl. Deeds, § 713. The prima facie presumption is that the note and mortgage in question were the acts of the trustees, or of Fagan and Henson, and not of the corporation. In order to rebut the presumption. evidence would be required. As being more or less pertinent, and as supporting this conclusion, we cite Taft v. Brewster, 9 Johns. 334, 6 Am. Dec. 280; Klopp v. Moore, 6 Kan. 27; Fullam v. Inhabitants of West Brookfield, 9 Allen, 1; Stinchfield v. Little, 1 Me. 231, 10 Am. Dec. 65; Brinley v. Mann, 2 Cush. 337, 48 Am. Dec. 669; Hatch v. Barr, 1 Ohio, 390; Chamberlain v. Wool-Growing Co., 54 Cal. 103; Richardson v. Mining Co., 22 Cal. 150; Thomp. Corp. 88 5015-5107. Since the mortgage to Shackleton was not upon its face the deed of the corporation which granted to Kemper, its inscription upon the county records was without efficacy as notice to Kemper, the holder of the prior mortgage, of any lien upon the land embraced therein, and hence did not charge him with the duty of making Shackleton a party defendant in the action to foreclose the prior mortgage. It necessarily results that the Judgment rendered in the action of Kemper against the Allen Chapel African Methodist Episcopal Church is conclusive against Shackleton. The judgment and the order denying a new trial are affirmed. Affirmed. BRANTLY, C. J., and MILBURN, J., con

cur.

(7 Idaho, 776)

STATE v. DAVIS. (Supreme Court of Idaho. June 17, 1901.) CRIMINAL LAW APPEAL - DENIAL OF NEW TRIAL CERTIFICATE OF PROBABLE CAUSE.

An application for a certificate of probable cause for an appeal from an order denying a new trial is not authorized, and should be refused, where the record upon such appeal shows that the application for such new trial was made more than three years after the judgment, and not within the time required by the statute for making such application. (Syllabus by the Court.)

Jack Davis was convicted of murder, and makes application for a certificate of probable cause. Denied.

Hawley & Puckett, for appellant

The

PER CURIAM. This is an ex parte application made by the appellant for a certificate of probable cause for an appeal from an order made by the district court on the 25th day of April, 1901, denying the application and motion of the defendant for a new trial. This application is made for the purpose of obtaining stay of execution. record upon this appeal, as well as the records of this court, show the following state of facts: That in April, 1897, information was filed against the appellant in the dis trict court of the Fourth judicial district in and for Cassia county, charging appellant with the murder of one John C. Wilson, and upon trial upon said information, at the April term, 1897, of said district court, the appellant was convicted of murder in the first degree, and on the 24th day of April, 1897, the defendant was, by judgment then rendered and entered, sentenced to be hanged. Thereafter said appellant moved for a new trial, which motion was denied by the judge of said court, and thereafter the appellant appealed to this court from the order denying him a new trial, and from the judgment of conviction. On the 15th day of June, 1898, this court rendered its decision affirming the order denying a new trial, and affirming the judgment against appellant. 53 Pac. 678. Thereafter the appellant filed a petition for a rehearing in this court, which was denied. Afterwards appellant made application to the United States district judge in and for the district of Idaho for a writ of habeas corpus, which, being denied, he appealed to the circuit court of appeals in and for the Ninth judicial circuit, where the order of the United States district judge denying defendant's application for a writ of habeas corpus was affirmed. 38 C. C. A. 299, 97 Fed. 501. Thereafter the petitioner applied to the United States circuit court of the Ninth judicial circuit, in and for the district of Idaho, for a writ of habeas corpus, which was denied, whereupon he appealed from the order denying his application to the supreme court of the United States, and the said supreme court of the United States affirmed the action of the said circuit court in denying the application for a writ of habeas corpus. 21 Sup. Ct. 210, 45 L. Ed. -By virtue of appeals, by reprieve issued by the governor of the state of Idaho, and by orders staying execution, the execution of said judgment has been delayed from April 24, 1897, to the present time. On the 25th day of April, 1901, the aistrict court in and for Cassia county being in regular term, appellant was again brought before the court for resentence, whereupon, through his counsel, he again moved for a new trial upon the ground of newly-discovered evidence material to the defendant, and which he could not have discovered with reason

able diligence and produced at the trial. which motion was by the district court overruled and denied, and the defendant was again resentenced; the date of his execution being fixed for June 21, 1901. Appellant now asks that the justices, or one of them, of this court, sign a certificate in the following words, after entitling court and cause: "I. -- justice of the supreme court of the state of Idaho, do hereby certify that, in my opinion, there is probable cause for the appeal taken in the above-entitled case from the order of the said district court denying defendant's application for a new trial herein made on April 26, 1901; said appeal having been perfected and the transcript therein having heretofore been filed in the supreme court of the state of Idaho.

In order to inform ourselves of the status of this matter, we have carefully examined the transcript upon appeal from the order made by the district court on the 25th day of April, 1901, denying the defendant's ap plication for a new trial, and find the facts as hereinbefore stated shown by the record. The record shows that the motion for a new trial was made about four years after the verdict of the jury against the defendant. An appeal from an order of this kind is statutory, and under the express provisions of section 7953, Rev. St., "the application for a new trial may be made before or after judg ment; and must be made within ten days. after verdict, unless the court or judge extends the time." This court has repeatedly held that an appeal from an order denying a motion for a new trial will be dismissed upon motion where it appears from the record that the application for a new trial was not made within ten days, and no extension of time for making the same has been granted by the court or judge. See State v. Smith, 48 Pac. 1000; State v. Dupuis, 65 Pac. 65; and State v. Rice, 66 Pac. 87,-the two latter cases decided at the recent May term. The ruling in these three cases is based upon the idea that, unless the application for a new trial is made within the time prescribed by the statute, the district court or judge thereof has no jurisdiction to entertain the same, and for this reason this court has no jurisdiction to reverse an order denying a new trial in such case. It must necessarily follow that no justice of this court has any authority to grant the certificate demanded by the appellant upon this application. cause has passed beyond the jurisdiction of the district court, except for the purpose of carrying the judgment into execution, and this court, by reason of the decision in the former appeals herein, must regard the mat ters involved here as res judicata. For the foregoing reasons, this application must be, and is, denied.

This

(7 Idaho, 746)

ZIENKE ▼. NORTHERN PAC. RY. CO. (Supreme Court of Idaho. June 14, 1901.)

APPEAL BOND-DISMISSAL.

1. An undertaking upon appeal from an order denying a new trial, executed and verified by the sureties on the same day after the order was made, but before the same was filed by the clerk, is sufficient, where it is shown that the undertaking upon appeal was filed simultaneously with the notice of appeal, but after the order appealed from had been filed by the clerk.

2. A motion to dismiss an appeal from a judgment upon the ground that certain papers, which were a part of the record upon such appeal, are not included in the transcript, is properly denied; the same being no ground for dismissal, the remedy being by suggestion of dimInution of the record.

(Syllabus by the Court.)

Appeal from district court, Kootenai county; A. E. Mayhew, Judge.

Action by Charles R. Zienke against the Northern Pacific Railway Company. Judgment for plaintiff. From the judgment, and from an order denying a new trial, defendant appeals. Motions to dismiss denied.

H. M. Stephens and John M. Bunn, for appellant. Charles L. Heitman, for respondent.

QUARLES, C. J. The respondent moves to dismiss both appeals in this case,-the appeal from the order denying a new trial, and the appeal from the judgment. The motion to dismiss the appeal from the order denying a new trial is based upon the ground that the undertaking upon appeal was executed on February 5, 1901, by the sureties thereto, and the notice of appeal was not served or filed until the 8th day of February, 1901, nor was the order denying a new trial entered by the clerk until February 8, 1901. It appears from the record that the said order denying a new trial was made by the district judge, at chambers, on the 5th day of February, 1901, and by the said judge indorsed: "Filed January 26th, 1901. A. E Mayhew, Judge," but was not filed by the clerk until February 8, 1901, upon which date the notice of appeal was served and filed, and the said undertaking upon appeal, executed three days prior thereto, was filed. These facts appear by the record in this case, but accompanying the motion of respondent is the affidavit of the deputy district clerk, in which it is stated that said notice was not filed by the clerk until the 7th day of March, 1901, upon which day it was indorsed by the clerk, "Filed February 8th, 1901." No reason is given for such indorsement, nor is any reason given or explanation whatever found in the record as to why the clerk did not indorse said order as filed upon the date that the same was made. It is also contended that the said order has not been entered in the minutes or upon the records of said court. Respondent contends that this appeal was prematurely taken. This court must, however, upon the record, hold that said order

denying a new trial was filed by the clerk on the 8th day of February, 1901, and that such filling was a sufficient entry of such order. From this ruling it appears that the appeal was taken, not prematurely, but at a time when the same could be properly taken. The other ground of the motion-that the sureties signed and verified the undertaking upon appeal three days before the order denying the motion for a new trial was filedis not well taken. The record shows that the undertaking was filed simultaneously with the notice of appeal, upon the same day; and, both upon principle and upon authority, it must be held that said undertaking was not executed until February 8, 1901, the time of its delivery to the clerk. Under the provisions of our Code, the appellant had five days in which to file exceptions to the sufficiency of the sureties upon said undertaking, and the record shows that this was done. The record also shows that upon the trial of said exceptions before the probate judge of Kootenai county, as provided by our Code of Civil Procedure, the original sureties to said undertaking appeared and were examined, and other and further sureties also appeared on behalf of the appellant and were examined, viz. E. P. Manor and W. J. McClure, and that said probate judge found and adJudged that each of said four sureties was a resident, freeholder, and householder in the county of Kootenal, and that each of said sureties was the owner of property subject to execution to the extent of more than $300 in Kootenai county, state of Idaho, whereupon said probate judge approved and accepted said four sureties, and each of them. Said undertaking upon appeal was sufficient and valid, and bound the sureties therein. See Richards v. Scott (decided at this term) 65 Pac. 433. The motion to dismiss the appeal from the order denying a new trial is therefore overruled and denied.

The motion to dismiss the appeal from the judgment is based upon the following grounds: First. That the respondent excepted to the sufficiency of the sureties within the statutory time. Second. That appellant's record on appeal does not contain all the papers used, heard, and considered on the motion of the appellant for a new trial herein; the following papers being omitted from said record, to wit: (1) The respondent's motion to strike from the files the appellant's bill of exceptions; (2) the order of the district judge overruling said motion; (3) the motion of respondent to dismiss appellant's motion for a new trial; (4) the order of the district judge overruling said motion. What we have said in regard to the exceptions to the sufficiency of the sureties disposes of the first ground of the motion to dismiss the ap peal from the judgment. The reasons given as the basis of the second ground for the motion to dismiss the appeal from the judg ment are not well founded. The reasons stated are not grounds for dismissing the

appeal, but are grounds for suggestion of diminution of the record, provided the papers therein mentioned are material to the consideration of the appeal from the judgment. Upon appeal from the judgment, the record consists of the judgment roll. If any part of that record has been omitted, such omission is not ground for the dismissal of appeal, but the respondent or either party may have the omission supplied by suggestion of diminution of the record, as provided in the rules of this court. The motion to dismiss the appeal from the judgment is therefore denied.

STOCKSLAGER, J. This is an appeal from an order of the district court of Kootenai county vacating and setting aside a judgment rendered and entered by default on the 23d day of August, 1900. The record discloses that the plaintiffs, as husband and wife, on the 27th day of March, 1900, filed their complaint against defendant, claiming that they were entitled to recover from said county the sum of $1,533.04, balance due for the services of George H. Pease as sheriff of said county for the years 1897-98. On the 23d day of July a default was entered, and on the same day judgment in favor of the plaintiffs was entered for amount as claimed in the complaint. Thereafter, and on the 28th day of July, 1900, John B. Goode, the county attorney of said Kootenai county, served notice on counsel for plaintiffs that on the 22d day of August, 1900, or as soon as he could be heard at a special term of the district court to be held in said county, he would move the court to set aside the default judgment entered in said cause. This notice further informed counsel for plaintiffs that said motion would be made upon the

records and files in said case and upon an affidavit of John B. Goode; a copy of such affidavit being attached to the notice. On the 27th day of July said affidavit was filed with the clerk of said court, and at the same time a demurrer was filed to the complaint in said cause, objecting to all the demands of the plaintiffs for relief as set out in their complaint. On the 23d day of August this motion was heard, counsel appearing for both parties to the action, and on the same day the court made an order setting aside said judgment. Counsel for plaintiffs complains of this action of the district court, and brings it here for review.

The affidavit of counsel for the defendant county, served with his notice to move to set aside the default judgment, among other things says: That either through mistake, inadvertence, or neglect he failed to plead by way of either answer or demurrer to the complaint herein on or before the 23d day of July, 1900, upon which last-named date the plaintiffs, by their attorney, filed a præcipe for a default, and that thereupon, on the same day, the clerk of said court entered a judgment by default against defendant; that he failed to file any pleading before said last-named date for the reason that be was under the impression that the time for filing the same had been extended by consent for 90 days from the last term of the court, which said period would not have expired before the 28th day of July; that he has this day (July 27, 1900) placed in the hands of the sheriff of Kootenai county a copy of a demurrer for service upon plaintiffs or their attorney. Counsel for appellants alleges the following errors: (1) No showing of mistake, inadvertence, surprise, or excusable neglect was shown by the defendant's attor ney. (2) No affidavit of merits was filed by the defendant or on defendant's behalf, and no answer showing a meritorious defense was filed or offered to be filed. (3) No imposition of terms was made by the court as a condition precedent to setting aside said judgment, as required by statute. (4) The court abused its discretion in setting aside said judgment upon the showing to be made. (5) The court made no findings of fact.

That the trial court is clothed with large discretionary powers in cases of the character before us for review is not controverted by counsel for appellants, and it is only where it is plainly apparent from the record that the court has abused this discretion that the appellate court will disturb the action of the lower court. The notice served upon counsel for appellants says the motion to set aside the judgment will be made upon the pleadings, files, etc., in the case, together with the affidavit of John B. Goode, county attorney of defendant county. The record shows that on the hearing of said motion the entire record was considered by the court. If it occurred to the learned judge that the complaint did not state a cause of action (as