property during the pendency of and until the final conclusion of the litigation, and may, if necessary, stay all actions and proceedings against the plaintiff on account thereof. The defendant, who is entitled to the money paid into court for him upon any judgment, shall be entitled to demand and receive the same at any time thereafter upon obtaining an order therefor from the court. It shall be the duty of the court or a judge thereof, upon application being made by such defendant, to order and direct that the money so paid into court for him be delivered to him upon his filing a satisfaction of the judgment, or upon his filing a receipt therefor, and an abandonment of all defenses to the action or proceeding, except as to the amount of damages that he may be entitled to in the event that a new trial shall be granted. A payment to a defendant, as aforesaid, shall be held to be an abandonment by such defendant of all defenses interposed by him, excepting his claim for greater compensation. [C. L. § 3857.

Cal. C. Civ. P. ? 1254*.

3605. Apportionment of costs. Costs may be allowed or not, and if allowed, may be apportioned between the parties on the same or adverse sides, in the discretion of the court. [C. L. § 3858.

Cal. C. Civ. P. 2 1255.

3606. Procedure applicable. Except as otherwise provided in this chapter, the provisions of this code relative to civil actions, new trials, and appeals, shall be applicable to and constitute the rules of practice in the proceedings in this chapter. [C. L. § 3859.

Cal. C. Civ. P. ? 1256*.

3607. Rights of cities and towns not affected. Nothing in this code must be construed to abrogate or repeal any statute providing for the taking of property.i v.in any city or town for street purposes. [C. L. § 3860.

Cal. C. Civ. P. 2 1263.

3608. Crossings to be made and kept in repair.. A party obtaining a right of way shall, without delay, construct such crossings as may be required by the court or judge, and shall keep them and the way itself in good repair. ['90, pp. 39, 40*.

CHAPTER 66.

QUO WARRANTO.

3609. Action in name of state, against whom. A civil action may be brought in the name of the state:

1. Against a person who usurps, intrudes into, or unlawfully holds or exercises, a public office, civil or military, or a franchise, within this state, or an office in a corporation created by the authority of this state.

2. Against a public officer, civil or military, who does or suffers an act which, by the provisions of law, works a forfeiture of his office.

Against an association of persons who act as a corporation within this [C. L. § 3529*.

state without being legally incorporated.

Mont. Civ. P. 1410. Cal. C. Civ. P. 3 803*.

Original jurisdiction in supreme and in district courts, Con. art. 8, secs. 4, 7.

A like action may be brought

3610. Id. Against a corporation. A like action

against a corporation:

1. When it has offended against a provision of an act by or under which it was created, altered, or renewed, or any act altering or amending such acts. When it has forfeited its privileges and franchises by non-user.

2.

3.

When it has committed or omitted an act which amounts to a surrender or a forfeiture of its corporate rights, privileges, and franchises.

4. When it has misused a franchise or privilege conferred upon it by law, or exercised a franchise or privilege not so conferred.

Mont. Civ. P. 1411.

No corporation shall engage in any business except that authorized, Con. art. 12, sec. 10. Non-use

of franchise for two years deemed a forfeiture,

321.

3611. Attorney general to begin action, when. The attorney general, when directed by the governor, shall commence any such action; and when, upon complaint or otherwise, he has good reason to believe that any case specified in the preceding section can be established by proof, he shall commence an action. Mont. Civ. P. ? 1412.

3612. Id. Upon whose relation. Security for costs. Such officer may, upon his own relation, bring any such action, or he may, on leave of the court, or a judge thereof in vacation, bring the action upon the relation of another person; and if the action be brought under the first subdivision of section thirtysix hundred and nine, he may require security for costs to be given as in other

cases.

Mont. Civ. P. & 1413.

3613. Action for usurpation by claimant in name of state. Bond. A person claiming to be entitled to a public office unlawfully held and exercised by another, may, by himself or by an attorney and counselor at law, bring an action therefor in the name of the state, as provided in this chapter. On filing the complaint, such person shall enter into an undertaking with two sufficient sureties, to be approved by the judge or any judge of the court in which the action is brought, conditioned that such person will pay any judgment for costs or damages recovered against him, and all costs and expenses incurred in the prosecution of the action, which undertaking shall be filed with the clerk of the court. [C. L. § 3536*.

Mont. Civ. P. 2 1414.

Election contest, 22 914-928.

3614. Id. Contents of complaint. When the action is against a person for usurping, intruding into, or unlawfully holding or exercising an office, the complaint shall set forth the name of the person who claims to be entitled thereto, with an averment of his right thereto, and judgment may be rendered upon the right of the defendant, and also upon the right of the person so averred to be entitled, or only upon the right of the defendant, as justice requires. [C. L. $$ 3530, 3531*.

Mont. Civ. P. 2 1415.

In an action of quo warranto under section 3531, C. L. 1888, to determine the title to an office, the respondent, who has shown no title in himself, could not be heard to contest the right of the person alleged to be entitled, and the court can, ex

parte, proceed to determine such right. People, ex rel. Dickson, v. Clayton, 4 U. 421; P. 11 206. Complaint alleging that defendant holds and exercises the functions of the office without authority of law is sufficient. Id.

3615. Id. All claimants to same office made defendants. All persons who claim to be entitled to the same office or franchise may be made defendants in the same action to try their respective rights to such office or franchise.

Mont. Civ. P.

1416.

Title to seats as councilmen from a city ward entitled to three councilmen may be determined between two sets of claimants in one action. People, ex rel. Young, v. Coln, 7 U. 352; 26 P. 928.

But one action will not lie against several defendants claiming separate offices under distinct appointments and commissions, though all within the territory over which plaintiff claims to be an officer. Preshaw v. Dee, 6 U. 360; 23 P. 763.

3616. Jurisdiction in supreme or district court. An action under this chapter can be brought in the supreme court of the state, or in the district court of the proper county.

Mont. Civ. P. ? 1417*.

3617. Application to file complaint. Notice to defendant. Upon application for leave to file a complaint, the court or judge may, in its discretion, direct notice thereof to be given to the defendant previous to granting such leave, and may hear the defendant in opposition thereto; and if leave be granted, an

entry thereof shall be made on the minutes of the court, or the fact shall be indorsed by the judge on the complaint, which shall then be filed.

Mont. Civ. P. 1418.

3618. Summons, when issued. When unnecessary. When the complaint is filed without leave and notice, or upon leave and notice in case all the defendants do not appear, a summons shall issue and be served as in other cases. When all the defendants appear to oppose the filing of the complaint no summons need issue.

Mont. Civ. P. 1419.

3619. Pleadings. The pleadings shall be as in other cases. Mont. Civ. P. 2 1421.

3620. Judgment of ouster. Costs. Fine where state is party. When a defendant is found guilty of usurping, intruding into, or unlawfully holding or exercising an office, franchise, or privilege, judgment shall be rendered that such defendant be ousted and altogether excluded therefrom, and that the relator recover his costs. The court may also, in its discretion, in actions to which the state is a party, impose upon the defendant a fine not exceeding five thousand dollars, which fine when collected must be paid into the state treasury. [C. L. § 3535*.

Mont. Civ. P. 1422*; Cal. C. Civ. P. 809*.

3621. Judgment ousting director of corporation. When the action is against a director of a corporation, and the court finds that, at his election, either illegal votes were received, or legal votes were rejected, or both, sufficient to change the result, judgment may be rendered that the defendant be ousted, and judgment of induction entered in favor of the person who was entitled to be declared elected at such election.

Mont. Civ. P. 1423.

3622. Action for damages within one year.

Such person may, at

any time within one year after the date of such judgment, bring an action against the party ousted, and recover the damages he sustained by reason of such usurpation. [C. L. § 3533.

Mont. Civ. P. 1426.

3623. Judgment against corporation, dissolution or restraint. When, in any such action, it is found and adjudged that a corporation has, by an act done or omitted, surrendered or forfeited its corporate rights, privileges, or franchises, or has not used the same during a term of two years, judgment shall be entered that it be ousted and excluded therefrom, and that it be dissolved; and when it is found and adjudged that a corporation has offended in any matter or manner which does not work such surrender or forfeiture, or has misused a franchise, or exercised a power not conferred by law, judgment shall be entered that it be enjoined from the continuance of such offense or the exercise of such power.

Mont. Civ. P. 1428.

3624. Quo warranto actions take precedence. Actions under this chapter in any court shall have precedence of any civil business pending therein; and the court, if the matter is of public concern shall, on motion of the attorney general, or of the attorney of the party, require as speedy a trial of the merits of the case as may be consistent with the rights of the parties.

Mont. Civ. P. 1433.

3625. Procedure in supreme as in district court. Jury. Actions under this chapter commenced in the supreme court, shall be conducted in the same manner as if commenced in the district court, and the clerk of the supreme court shall have the same authority to issue process and to enter orders and judgments as the clerk of the district court has in like cases. All pleadings and the

conduct of the trial shall be the same as in the district court. If a jury is required to determine an issue of fact, the court shall order the question to be tried before a jury in the district court of any county designated in such order, and that the verdict be certified to the supreme court.

Mont. Civ. P. ? 1434*.

3626. Appeal does not stay judgment of ouster. If the action is commenced in the district court, an appeal may be taken from the final judgment by either party to the supreme court as in other cases; but if there is judgment of ouster against the defendant, there shall be no stay of execution or proceedings pending such appeal.

Mont. Civ. P. 21435.

Execution not stayed on appeal, 3315.

CHAPTER 67.

SPECIAL PROCEEDINGS-IN GENERAL.

3627. Parties how designated. The party prosecuting a special proceeding may be known as the plaintiff, and the adverse party as the defendant. [C. L. § 3716.

Cal. C. Civ. P. 2 1063.

Word "action" in limitations applies to special proceedings, ? 2901.

3628. Effect of judgment. Motion and order defined. A judgment in a special proceeding is the final determination of the rights of the parties therein. The definitions of a motion and of an order in a civil action are applicable to similar acts in a special proceeding. [C. L. § 3717.

Cal. C. Civ. P. ? 1064.

Costs on appeal in special proceedings, 3339, 3349. Definitions of motion and order, 3323.

CHAPTER 68.

CERTIORARI.

3629. A writ of review. The writ of certiorari may be denominated the writ of review.

Cal. C. Civ. P. 1067.

[C. L. § 3718.

Supreme court may grant it. Young v. Cannon, 2 U. 560. May issue when lower court has exceeded its jurisdiction in contempt proceedings. Id. Is not a writ of right; issuing or quashing it is discretionary. Crosby v. Probate Court, 3 U. 51; 5 P. 552. Will not generally be issued after time within which appeal would lie. Id.

Writ does not lie until judgment or final determination by the inferior tribunal. In re Bates, 1

U. 210. Nor to review judgment that has been performed and satisfied by defendant. Madsen v. Kenner, 4 U. 3; 4 P. 992. Does not lie to review erroneous, void, or default judgment from which there is appeal. Saunders v. Sioux City Nursery Co., 6 U. 431; 24 P. 532. Cereghino v. Third District Court, 8 U. 455; 32 P. 697. Golding v. Jennings, 1 U. 135, contra. Ducheneau v. House, 4 U. 363; 10 P. 427.

3630. When and by whom granted. A writ of review may be granted by the supreme court, or by a district court or a judge thereof, when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court or judge, any plain, speedy, and adequate remedy. [C. L. § 3719.

Cal. C. Civ. P. ? 1068*.

Original jurisdiction in supreme and in district court, Con. art. 8, secs. 4, 7.

3631. Application on affidavit by party interested. Notice. The application must be made on affidavit by the party beneficially interested, and

the court or judge may require a notice of the application to be given to the adverse party, or may grant an order to show cause why it should not be allowed, or may grant the writ without notice. [C. L. § 3720.

Cal. C. Civ. P. 1069.

3632. Writ to whom directed. Return. The writ may be directed to the inferior tribunal, board, or officer, or to any other person having the custody of the record or proceedings to be certified. When directed to a tribunal, the clerk, if there be one, must return the writ with the transcript required. [C. L. § 3721.

Cal. C. Civ. P. ? 1070.

3633. Id. Contents of writ. The writ of review must command the party to whom it is directed to certify fully to the court issuing the writ, at a specified time and place, a transcript of the record and proceedings, describing or referring to them with convenient certainty, that the same may be reviewed by the court, and requiring the party in the meantime to desist from further proceedings in the matter to be reviewed. [C. L. § 3722.

Cal. C. Civ. P. 2 1071.

3634. Order may stay proceedings. If a stay of proceedings be not intended, the words requiring the stay must be omitted from the writ; these words may be inserted or omitted, in the sound discretion of the court or judge, but if omitted, the power of the inferior court or officer is not suspended or the proceedings stayed. [C. L. § 3723.

Cal. C. Civ. P. 2 1072.

3635. Writ served as a summons.

The writ must be served in the

same manner as a summons in a civil action, except when otherwise expressly directed by the court or judge. [C. L. § 3724.

Cal. C. Civ. P. 2 1073.

3636. Extent of review under writ. The review upon this writ cannot be extended further than to determine whether the inferior tribunal, board, or officer has regularly pursued the authority of such tribunal, board, or officer. [C. L. § 3725.

Cal. C. Civ. P. 2 1074.

3637. Amendment of defective return. Hearing. Judgment. If the return of the writ be defective, the court or judge may order a further return to be made. When a full return has been made, the court must hear the parties, or such of them as may attend for that purpose, and may thereupon give judgment, either affirming, annulling, or modifying the proceedings below. [C. L. $3726.

Cal. C. Civ. P. 1075.

Under this and the next preceding section, court may examine evidence and decide whether proceedings of inferior tribunal were in accordance

therewith and with the law. Gilbert v. Board of P. & F. Com., 11 U. 378; 40 P. 264. Overruling Golding v. Jennings, 1 U. 135.

3638. Copy of judgment transmitted. A copy of the judgment, signed by the clerk, must be transmitted to the inferior tribunal, board, or officer having the custody of the record or proceedings certified up. [C. L. § 3727.

Cal. C. Civ. P. ¿ 1076.

3639. Judgment roll. A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment roll. [C. L. § 3728.

Cal. C. Civ. P. & 1077.

Judgment roll, 3197.