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award of alimony, the demurrer ought to have been sustained, and, therefore, that a creditor's bill does not lie.

"It is a general rule that a court of equity will not interfere to enforce the payment of debts until the creditor has exhausted all the remedies known to the law to obtain satisfaction of the judgment. It is usually essential in order to give the court jurisdiction, and to reach equitable assets, that an execution should have been issued upon the judgment, and returned unsatisfied. The rule that the legal remedy must be exhausted by the judgment creditor before relief can be solicited to reach property, not subject to the lien of the judgment, is an old one:" Waite on Fraudulent Conveyances, 115, sec. 75; Bump on Fraudulent Conveyances, 537; Jones v. Green, 1 Wall. 330; Smith v. Railroad Co., 99 U. S. 398; Miller v. Davidson, 3 Gilm. 518, 44 Am. Dec. 715; Clarkson v. De Peyster, 3 Paige, 320; Brown v. Long, 36 Am. Dec. 43; Crompton v. Anthony, 13 Allen, 36; Halbert v. Grant, 4 T. B. Mon. 580; Weightman v. Hatch, 17 Ill. 281; Zoll v. Soper, 75 Mo.

460.

A court of equity only comes to the rescue when the remedies at law have become exhausted and have failed. The reason for this rule rests in the obvious principle of justice that a court of equity ought not to entertain a suit to set aside a conveyance until the creditor has established his claim and exhausted his remedies in that forum, for otherwise the court itself might become the instrument of fraud. "The necessity of this first obtaining judgments at law before application is made to a court of chancery does not, however, arise from the want of jurisdiction in the court of chancery to investigate fraud; but it results from the circumstance of the demand, which constitutes the creditor cognizable at law, and the necessity of that demand being established by the determination of a court acting within its legitimate sphere; and whenever the demand is so established, the court of chancery, acting within the acknowledged sphere of its jurisdiction, will search out the fraud, and clear away all obstructions to the effectual execution of the judgment at law:" Scott v. McMillen, 1 Litt. 302; S. C., 13 Am. Dec. 239.

There are exceptions to the general rule we have stated: Smith v. Railroad Co., 99 U. S. 401; and one of the exceptions is that a creditor's bill may be filed to enforce a decree in equity: Bump on Fraudulent Conveyances, 539; Farnsworth v. Strasler, 12 Ill. 482; Clarkson v. De Peyster, 3 Paige, 220; Weightman v. Hatch, 17 Ill. 281; and that is the kind of a decree the respondent is seeking to enforce. Under our statute, proceedings for divorce and alimony are of chancery jurisdiction: R. S., 513, 514, secs. 508, 514.

The claim of a married woman against her husband in proceedings. instituted to obtain a divorce and alimony furnish the proper foundation for a creditor's bill: Bump on Fraudulent Conveyances, 505, and authorities cited in note as follows: Feigley v. Feigley, 7 Md. 537; Blenkinsopp v. Blenkinsopp, 1 DeG. M. & G. 495; S. C., 12 Beav. 568; Taylor v. Wyld, 8 Id. 159; Negro Clagett v Gibson, 3 Cranch

C. C. 359; Boils v. Boils, 1 Coldw. 284; Brooks v. Caughran, 3 Head, 464; Ruffing v. Tilton, 12 Ind. 259; Livermore v. Boutelle, 77 Mass. 217; Turner v. Turner, 44 Ala. 437; Morrison v. Morrison, 49 N. H. 69; Frakes v. Brown, 2 Blackf. 295; Chase v. Chase, 105 Mass. 385; Bouslaugh v. Bouslaugh, 68 Pa. St. 495; Kamp v. Kamp, 46 How. Pr. 143; Draper v. Draper, 68 Ill. 17; Bailey v. Bailey, 61 Me. 361; Nix v. Nix, 10 Heisk. 546; Dugan v. Trisler, 69 Ind. 553.

In Bouslaugh v. Bouslaugh, 68 Pa. St. 449, the supreme court of Pennsylvania, by Agnew, J., says: "There is no reason why a wife, whose husband has deserted her, and refused to perform the duty of maintenance, or who by cruel treatment has compelled her to leave his house, and commence proceedings for divorce and maintenance, should not be viewed as a quasi creditor in relation to the alimony which the law awards her. So long as she is receiving maintenance, and is under the wing of her husband, as it were, she is bound by his acts as to his personal estate; but when she is compelled to become a suitor for her rights, her relation becomes adverse, and that of a creditor, in fact, and she is not to be balked of her dues by his fraud."

In Bailey v. Bailey, 61 Me. 363, the supreme court of Maine, by Peters, J., says: "The judge at nisi prius ruled that if the estate was conveyed to James Bailey, the father, to prevent the plaintiff, the wife, from enforcing such decree of alimony, or other aid as might be awarded her in case she should prefer a libel against him, such conveyance was fraudulent and void as between the plaintiff and defendant. The defendant contends that a person in the situation of the plaintiff could not be regarded as a creditor, so as to come within the statutes of Elizabeth relating to fraudulent conveyances. But the statute of 13 Eliz., c. 5, was passed 'for the avoiding and abolishing of feigned covinores, and fraudulent feoffments, gifts, grants, alienations, conveyances, bonds, suits, judgments, and executions, devised and contrived of malice, fraud, covin, collusion, or guile, to the end, purpose, and intent to delay, hinder, or defraud creditors and others of their just and lawful actions, suits, debts, damages, penalties, forfeitures, heriots, mortuaries, and reliefs.""

In Livermore v. Boutelle, 11 Gray, 217, in a similar suit to the present, the court say: "If she was not a creditor, she was of the others, whose just and lawful actions, suits, and reliefs would be delayed, hindred, or defeated by such conveyance."

In Chase v. Chase, 105 Mass. 387, the supreme court of Massachusets, by Morton, J., said: "He contends that the demandant was not a creditor, and her husband not a debtor, within the meaning of the statutes against fraudulent conveyances. The same question was raised in Livermore v. Boutelle, 11 Gray, 217, and the court held that the wife, who, after a divorce a vinculo, recovered a judgment for alimony was a creditor within the protection of the statute of 13 Eliz., c. 5, and could impeach a conveyance made by her husband to delay and defraud her. The principle is the same in the case of a divorce a mensa et thoro. The judgment for alimony in either case creates a

debt of record in favor of the wife:" Allen v. Allen, 100 Mass. 373, and cases cited. In the case of Barrett v. Barrett, 5 Or. 413, the supreme court of Oregon, by Barnett, J., says: "It seems from the authorities that the right of a woman to question a conveyance made by her husband under the circumstances mentioned, can never arise until the decree of divorce, which establishes the fact that she had a cause of action against her husband, and fixes the time when the cause of suit arose, is made; and whenever that decree is made by a court of ccnpetent jurisdiction it arms the injured wife with power to call in question the validity of any conveyance made by her husband after the cause of suit arose.'

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These decisions commend themselves to one's sense of natural justice, and make the statute of frauds an instrument to defeat, rather than to aid in the perpetration of fraudulent practices.

It is immaterial whether the decrce for alimony is called a judgment or not, or whether an execution might have issued thereon. It was a debt of record, ascertained by an adjudication in a court of competent jurisdiction, and the respondent thereby became a creditor within the meaning of our statute. Proceedings by attachment, and the recovery of a judgment for the amount of alimony due, would not have aided her in the collection of her debt, or placed her in any better or stronger position than before such proceedings had been commenced. It was not necessary to have any further proceedings or adjudication to establish the respondent's debt and claim, and a creditor's bill was her only remedy to aid her in the collection of what a competent court had declared she was justly entitled to. Our statute, by the use of the words, "creditors or other persons," embraces others than those who are strictly creditors. Even the word "creditors" does not receive a strict definition, for a party who is not, strictly speaking, a creditor, may stand in the equity of a creditor, and have an interest that may be defrauded: Bump Fraud. Con. 502. Lodge & Beaumont, the appellants, knowingly aided Twell in evading and defeating the order and judgment of the court, and thereby placed themselves in contempt of court. They knowingly and fraudulently assisted in making nugatory a decree of the court, and compelled the respondent, in order to protect her rights and to enable her to receive what the court had decreed her, to resort to this creditor's bill to defeat their fraud. They stand in a poor plight to resist the demands of the ir jured wife who comes with an adjudication in her favor establishing the validity and justness of her claim. Judgment affirmed.

WRIGHT ET AL. v. BOARD OF COMMISSIONERS OF GALLATIN Co.

Filed January 14, 1886.

COUNTY PRINTING-CONTRACT FOR-MANDAMES TO COMPEL.-Several persons, whose bids for county printing have been rejected by the board of commissioners, cannot join in a proceeding for a writ of mandate, to compel the contract for such printing to be awarded to them. Nor, in such proceeding, can the validity of a contract therefor be determined without joining the person to whom the contract has been awarded.

APPEAL from first district court of Gallatin county. The opinion states the facts.

J. L. Staats, for the appellants.

Luce & Armstrong, for the respondents.

WADE, C. J. This is an application for a writ of mandate against the board of commissioners of Gallatin county to compel said commissioners to enter into a contract with the relators to do the public printing for said county for the year 1885. It seems that the county clerk, in pursuance of a resolution of said board, advertised for bidders to do said printing, and the relators, two of whom, Wright and Hendry, are partners, and the publishers of the Daily Enterprise, at Livingston, in said county, and the other, W. W. Alderson, publisher of the Avant Courier, who resides at Bozeman in said. county, put in bids for said printing; Wright & Hendry for themselves, and Alderson for himself, but that said board rejected said bids, and gave said printing to one S. W. Langhorne, who had a contract for the same under the printing-law, which law the relators allege is void and of no effect.

The demurrer to this petition or complaint was properly sustained for several reasons. There is no community of interest between the relators. They each bid for themselves, and their interests are hostile and adverse. The board had the right to reject each and all of said bids. Whether or not Langhorne's contract was good or bad could not be determined behind his back, and without making him a party to the proceedings or giving him his day in court.

Judgment affirmed with costs.

GALBRAITH, J., concurred.

MURPHY v. KING ET AL.

Filed January 15, 1886.

ORDER DISMISSING APPEAL-JUDGMENT MUST BE ENTERED ON.-An entry in the record of the district court, granting a motion to dismiss an appeal from the probate court, is not a judgment. In order to enable the party against whom the motion was granted to appeal, judgment must have been entered in pursuance of such order.

APPEAL from first district court of Meagher county. The opinion states the facts.

Sanders, Cullen, & Sanders, for the appellants,
Smith & Madox, for the respondent.

GALBRAITH, J. This purports to be an appeal from the judgment in the district court, dismissing an appeal from a judgment rendered in the probate court. Upon an examination of the record, we do not find that a judgment was ever rendered in the case. The only proceeding appearing in the transcript before us, which has any appearance of a judgment, is the following: "And thereupon, and on the eleventh day of April, 1885, said court rendered the judgment dismiss

ing said appeal, which said judgment is in the words and figures following, to wit, Motion to dismiss appeal granted.'"

This is not a judgment. It is not an appealable order: R. S., 1st div., secs. 408–431.

In order to enable the party to appeal, judgment should have been rendered, in pursuance of this order, against him.

In Owen v. McCormick, 5 Mont. 255, 4 West Coast Rep. 479, which was a motion to dismiss the complaint from the files, and overruling a motion to allow it to be amended, it was held that "it was necessary that something more should be done before it could be said that a final judgment was rendered in the action. For aught that appears in the transcript, this action is still pending in the district court."

So in this case, for aught that appears in the transcript, it may still be pending in the district court for the purpose of having judgment rendered on the order granting the motion to dismiss the appeal.

There is no bill of exceptions, nor any action or order of the court duly authenticated. Therefore there is nothing in the record before us which we can consider.

Order dismissing the appeal is affirmed.

ALDER GULCH CONSOLIDATED MINING Co. v. HAYES ET AL.
Filed January 15, 1886.

NEW TRIAL-APPEAL-REVIEW OF EVIDENCE.-In the absence of a motion for a new trial the supreme court will not consider whether or not the findings are supported by the evidence.

JUDGMENT-PRESUMPTION IN SUPPORT OF.-All facts which are necessary to support the judgment and which came within the issues raised by the pleadings, although not expressed, will be presumed to be in accordance with the judgment.

MINING WATER-DITCH-APPROPRIATION OF WATER-RIGHTS OF MINERS WORKING IN SAME GULCH.—In a mining-gulch, when water appropriated by a ditch for the purpose of being used upon a mining claim has served its purpose upon such claim, it must be discharged therefrom for use by the owners of claims below, for use upon their claims. The mining claimant below is entitled to the water of the stream flowing down the gulch, subject to the prior appropriation of the water by the owners of claims above him for use upon such claims, and subject only to the reasonable diminution and deterioration by its necessary use upon such upper claims.

APPEAL from first district court of Madison county. The opinion states the facts.

James E. Callaway, for the appellant.

Samuel Word and Henry N. Blake, for the respondent.

GALBRAITH, J. We would be warranted in refusing to determine this cause, for the reason that it does not comply with the rule of this court as to the mechanical method of its presentation. It should not have been filed with the clerk. But on account of its importance we have concluded to consider it.

It is an appeal from a judgment. The evidence has been stricken

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