denied, and the proofs thereon were conflict-growing out of or concerning any matter; ing. Upon this issue the court instructed: that, if they found such services were per

"If you do not believe by a fair preponderance formed as alleged by plaintiffs at the request of the evidence that said $7,500 was intended to of defendant, and not volunteered by plainand agreed to cover such future services as are tiffs, then plaintiffs were entitled to comreferred to in the complaint, then it is your duty to entirely disregard said payment of said $7,500"

-the italicized portion being assailed as a comment on facts. We do not so regard it. This referred to an affirmative plea as to which the burden was upon appellant. If he failed to show by a fair preponderance of the evidence his specific affirmative allegations, that defense was wiped out. That is all the jury were told.

pensation for the reasonable value of such services, and in determining the reasonable value of such services the jury were to take into consideration the nature of the controversy, the skill and labor required, the responsibility imposed, the standing and experience of the attorney, the success achieved, and the reasonableness or unreasonableness of the charges made, from all the evidence and facts and circumstances in the case as disclosed by the evidence.

[5] Closely related to this, however, are instructions also attacked by appellant, Viewed in connection with the foregoing among them one that the burden of proof (summarized) very fair and comprehensive was upon appellant to prove that the pay- instructions, the jury could hardly avoid ment of $7,500 covered the services involved considering the fact of payment of a certain herein. The contention is untenable under sum for certain services in considering the the decisions of this state that it is neces- charges of the attorneys for further or other sary to plead payment affirmatively (Rich- services, in any event, as a means of comards v. Jefferson, 20 Wash. 166, 54 Pac. 1123;parison and upon the question submitted to Pickle v. Anderson, 62 Wash. 552, 114 Pac. them of the reasonableness of the fees 177), and the burden of proving payment and charged and demanded therefor. They were for what specific application is upon the in possession of every fact and circumstance party pleading it (30 Cyc. 1264). This ap-as disclosed by the evidence, of services renplies also, in effect, to appellant's assignment No. 4, as to another instruction concerning a cross-complaint for $884 alleged to have been paid to respondents. It is urged, however, that the payment of the $7,500 for services rendered was a fact and circumstance material to be considered by the jury in order to intelligently determine the value of the services here sued for, and not to be disregarded. The pleadings and proofs of the parties show that appellant was involved in a vast amount of litigation arising out of some wireless company stock transactions and business transactions of his own. There were several civil suits in which he was involved besides the large one heretofore mentioned. There was also a criminal prosecution by the United States against him. Ap-KER, and MAIN, JJ., concur. pellant's answer, among other things, alleged that:

"After the conclusion of the plaintiff E. B. Palmer's services in behalf of the defendant in said prosecution, he stated to Clyde Parker, the son of defendant and his authorized agent and representative, that his bill and charge for serv

ices was $7,500, and then and there represented that said charge was in full of and included any and all services theretofore rendered by the plaintiff E. B. Palmer in behalf of the defendant in said criminal prosecution, or which he might thereafter be called upon to perform therein, or in any matter that had grown out of, or that might thereafter grow out of, said criminal prosecution or the connection of the defendant with and his interest in the United Wireless Telegraph Company."

In various instructions the jury were told that, if they believed from a fair preponderance of the evidence the foregoing settlement was made as pleaded, it was a complete defense to any and all claims by respondents

dered, nature and result thereof, and pay-
ments made by appellant, and were to deter-
mine for what purpose specifically the pay-
ments were made. While so determining
they were necessarily considering every fact
and circumstance and the respective rela-
Taken as a
tions thereof and their effect.
whole, the instructions, not all of which
have been mentioned, were perfectly fair to
appellant and correct.

Other errors claimed in general related to or were of the same nature as those discussed. We find no error in any of the instructions under the issues in the case. Affirmed.

MORRIS, C. J., and BAUSMAN, PAR

(52 Mont. 457)

STATE ex rel. SELL v. DISTRICT COURT
OF TENTH JUDICIAL DIST. IN AND
FOR FERGUS COUNTY et al. (No. 3880.)

(Supreme Court of Montana. June 26, 1916.)
1. CERTIORARI 50-RETURN AND RECORD-
CONTENTS.

the writ of review command the party to whom Under Rev. Codes, § 7206, providing that directed to certify to the court issuing the writ "a transcript of the records and proceedings" so far as necessary to obtain the review sought, recitals, denials, affirmative allegations, or matters not copied from the records, or matters copied from the records, but not called for by constitute any part of it, and will be disrethe writ, are out of place in the return, do not garded.

[Ed. Note.-For other cases, see Certiorari, Cent. Dig. § 131; Dec. Dig.

50.]

2. VENUE CAUSE.

Under Rev. Codes, & 6315, as amended by Laws 1909, c. 114, providing that, when an affidavit of prejudice is filed, the judge as to whom such disqualification is averred shall proceed no further in the action, except to transfer the action to another court, or call in another judge, and section 6506, providing that, when the judge is disqualified and motion is made for change of venue if the parties shall agree upon another district judge, or upon a member of the bar to act as judge pro tempore, or if any qualified district judge shall be called in and shall assume jurisdiction, no change of venue shall be made, and section 6507, providing that if, where a judge is disqualified, the court orders a change of venue, the action must be transferred to a court the parties may agree upon, or, if they do not agree, then to the nearest court,-upon affidavit of bias, a change of venue should not be ordered until after due endeavor to secure another judge and after the parties have failed to agree upon the court to which the cause shall be transferred.

49(1) — CHANGE-TRANSFER OF | terms the writ of review commands the party to whom it is directed to certify to the court issuing the writ "a transcript of the records and proceedings," so far as necessary to obtain the review sought. The return cannot comprehend more or less. Recitals, denials, affirmative allegations, or matters not copied from the records, or matters copied from the records, but not called for by the writ, are out of place in the return, and do not constitute any part of it. State ex rel. First Trust & Savings Bank v. District Court, 50 Mont. 259, 146 Pac. 539. Disregarding, as we must, then, the recital above, and we have for consideration an order transferring a cause to another county, made by the court presided over by a judge disqualified for imputed bias or prejudice, and on the ground alone of such disqualification.

[Ed. Note.-For other cases, see Venue, Cent. Dig. 71; Dec. Dig. 49(1).] 3. VENUE

SITY.

57-CHANGE-MOTION-NECES

Under Rev. Codes, § 6506, specifying the cases when the judge "must on motion" change the place of trial, the court cannot change the place of trial until a motion for such change

has been made by a party.

[Ed. Note.-For other cases, see Venue, Cent. Dig. 87; Dec. Dig. 57.]

Writ of review by the State, on the relation of Hattie Sell, against the District Court of the Tenth Judicial District in and for Fergus County and Roy E. Ayers, Judge, to review an order of the Court. Order annulled.

John A. Coleman, of Lewistown, for appellant. Belden & De Kalb, of Lewistown, for respondents.

HOLLOWAY, J. In an action pending in the district court of the Tenth judicial district, numbered therein 5462, and entitled Bank of Fergus County v. Herman Sell and Hattie Sell, an affidavit imputing bias and prejudice to Hon. Roy E. Ayers, the presiding judge, was filed by the defendant Hattie Sell. The court, Judge Ayers presiding, thereupon made an order transferring the cause to Cascade county, and this proceeding was instituted to have that order annulled. A writ of review was issued and served. The paper presented as a return contains a copy of the order in question and certain recitals, one of which is that the venue was changed upon the request of the attorneys for the plaintiff.

[1] The practice in a proceeding of this character has been settled by statute in this jurisdiction for more than 50 years and ought to be understood by this time. A provision in substantially the same terms as section 7206, Revised Codes, was enacted by the First Territorial Legislative Assembly in 1864 (Bannack Statutes, p. 121, § 375), and has been in force ever since. By its

[2, 3] Section 6315, Revised Codes,

as

amended (Laws 1909, p. 161), provides that, when an affidavit imputing bias or prejudice is filed, the judge as to whom such disqualification is averred shall be without authority to proceed further in the action, except to arrange the calendar, regulate the order of business, transfer the action to another court, or call in another judge to sit and act in such action. But this section, and sections 6506 and 6507, Revised Codes, are

companion measures, and are to be construed

together. State ex rel. Lohman v. District Court, 49 Mont. 247, 141 Pac. 659. When the affidavit imputing bias or prejudice was filed, a due consideration for the rights of the litigants should have prompted an immediate call upon another judge to preside in that case, and, if such invited judge failed to respond, another should have been called, unless a motion for change of venue was made pursuant to section 6506. When such a motion is made and the invited judge fails to appear and assume jurisdiction of the case within 30 days after the motion is filed, then an order for a change of venue may be made, provided the parties have been given an opportunity to agree upon another judge or a judge pro tempore and have failed. Section 6506. When the order for the change is to be made, the parties have the further right to an opportunity to agree upon the court to which the cause shall be transferred, and it is only after such opportunity has been accorded them and they have failed to agree that the court is authorized to make the change, and then only pursuant to the terms of section 6507. State ex rel. Carleton v. District Court, 33 Mont. 138, 82 Pac. 789, 8 Ann. Cas. 752. The court is altogether without authority to change the place of trial until a motion for such change has been made by a party to the action. Section 6506; State ex rel. Gnose v. District Court, 30 Mont. 188, 75 Pac. 1109. In other words, a change of venue is the last resort under the so-called "Fair Trial Law."

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

al Law, Cent. Dig. § 940; Dec. Dig. 300; [Ed. Note.-For other cases, see ConstitutionIn the absence of statute declaring a dif- Limitation of Actions, Cent. Dig. § 652; Dec. ferent rule, the lien of a mortgage is not ex-Dig. 167(2); Mortgages, Cent. Dig. § 1599.] tinguished by the mere lapse of a period fixed by the statute within which an action to enforce the payment of the debt may be brought and prosecuted to a successful termination. [Ed. Note.-For other cases, see Limitation of Actions, Cent. Dig. § 652; Dec. Dig. 167(2); Mortgages, Cent. Dig. § 1599.] 2. LIMITATION OF ACTIONS

HOLLOWAY, J. In the complaint in this action it is alleged that on November 6, 1885, David C. Miller executed and delivered to C. A. De Witt his promissory note and a mortgage upon 160 acres of land to secure the payment; that the mortgage was duly In view of Civ. Code, § 3842 (Rev. Codes, recorded and ever since has remained of rec§ 5749), providing that a mortgage of real prop-ord and uncanceled; that the indebtedness erty can be created, renewed, or extended only has never been paid in whole or in part; that by writing with the formalities required in the case of a grant of real property, a payment by the right to recover it is barred by statutes & mortgagor after the principal obligation was of limitation, the appropriate sections of

an action can be brought upon the principal ob-
ligation.' Our own
is extinguished by such lapse of time. We have
codifiers industriously
changed this language, and declared that a lien
thus adopted a rule contrary to that existing at
the common law (Taunton v. Goforth, 6 Dowl.
& Ryle, p. 384), and contrary, therefore, to the
law rule has not been abrogated by express
authorities of those states where the common-
statute."

California (Report of Code Commissioners,
In 1895 we adopted our Civil Code from
p. 13), and, with the knowledge that the
change noted above had been made, our Leg-
islature followed the California lawmakers
and incorporated section 2911, above, without
change as section 3792 of our Civil Code, and
this was brought forward and re-enacted as
section 5728, Revised Codes of 1907, and
made directly applicable to mortgages, by
section 3735, Civil Code (section 5709, Rev.
Codes). When our Civil Code became effec-
tive, July 1, 1895, the Miller note was then

which are cited; and that the lien of the mortgage has been extinguished. It is further alleged that the plaintiffs are the present owners of the land; that the defendants are the heirs and successors of De Witt; that in July, 1913, defendants executed and filed for record an affidavit purporting to extend or renew the mortgage of 1885; that the affidavit was made and filed without the consent of plaintiffs; and that the mortgage and this affidavit constitute clouds upon plaintiff's title and should be canceled. The answer admits substantially all of the allegations of the complaint and, by way of equitable counterclaim, repeats the history of the mortgage transaction, and alleges that in 1906 Miller, the original mortgagor, then the owner of the land, commenced an action to have the mortgage canceled, and that his complaint constituted such an acknowledgment as operated to take the case out of the statute of limitations. The pray-barred by the statute of limitations, and, by er is that the mortgage be decreed to be a valid lien upon the land and that it be foreclosed. There is an allegation that a payment of $100 was made by Miller in 1896. To this counterclaim plaintiffs interposed a general demurrer which was sustained, and, defendants failing to plead further, a decree conforming to the prayer of the complaint was rendered and entered, and from that decree this appeal is prosecuted.

virtue of section 3792, above, the lien of the mortgage was altogether extinguished and the mortgage itself stripped of its vitality. Henderson v. Grammar, 66 Cal. 332, 5 Pac. 488; San Jose Safe Deposit Bank v. Bank of Madera, 144 Cal. 574, 78 Pac. 5; Vandall v. Teague, 142 Cal. 471, 76 Pac. 35.

1896, after the principal obligation was [3] The payment of $100 made by Miller in [1, 2] It may be conceded at once that, in ate a new obligation binding in foro conbarred, though it may have operated to crethe absence of a statute declaring a differ- scientiæ notwithstanding the statute, could ent rule, the lien of a mortgage is not extin- not re-create the lien of the mortgage which guished by the mere lapse of the period fixed was already fully extinguished, for "a mortby the statute within which an action to engage of real property can be created, renewforce the payment of the debt may be ed or extended only by writing with the forbrought and prosecuted to a successful ter- malities required in the case of a grant of mination. This rule was declared by the real property." courts of New York (Pratt v. Huggins, 29 section 5749, Rev. Codes; Wells v. Harter, Section 3842, Civil Code; Barb. 277; Waltermire v. Westover, 14 N. Y. 56 Cal. 342. 16), and was incorporated in the proposed was in reality without any practical effect, The payment of $100 in 1896 Civil Code prepared by David Dudley Field for it is conceded that no payment was thereand his associates for the state of New York after made and nothing was done to prevent (section 1605). That proposed Code was the running of the statute for more than adopted, almost in its entirety, by Califor-eight years. nia; but the Legislature, for reasons satisfactory to itself, changed the language of section 1605 to read:

"A lien is extinguished by the lapse of the time within which, under the provisions of the Code of Civil Procedure, an action can be brought upon the principal obligation." Section 2911, Civil Code of California.

In Mutual Life Ins. Co. v. Pacific Fruit Co., 142 Cal. 477, 76 Pac. 67, the California court refers to this bit of legislative history

as follows:

ceased to be a lien upon the property 20 [4] But notwithstanding this mortgage tiffs' title, because it is ostensibly a mortgage years ago or more, it is a cloud upon plainvalid upon its face and requires extrinsic evidence to demonstrate that it is in point of fact of no force or validity. 7 Cyc. 255. If the principal obligation had been kept alive constantly by payments or otherwise, the It requires extrinsic evidence to disclose that lien of the mortgage would have continued.

the debt is barred and the lien therefore extinguished.

"It should be remarked that section 2911 was designedly passed to change the former rule respecting the continued existence of a lien after the statute of limitations has barred the rem- plaint filed by Miller in 1906 constituted such Counsel for appellants insist that the comedy upon the principal obligation. Thus the proposed Civil Code of New York (the Field an acknowledgment of the debt, within the Code), from which admittedly so many of the meaning of section 6472, Revised Codes, as provisions of our own Code have been taken, to take it without the statute. provided (section 1605), in accordance with the quiry were a material one, we should doubt If the incommon rule: 'A lien is not extinguished by the mere lapse of the time within which, under the soundness of counsel's position (Braiththe provisions of the Code of Civil Procedure, waite v. Harvey, 14 Mont. 208, 36 Pac. 38,

27 L. R. A. 101, 43 Am. St. Rep. 625); but it is not, for, as we have observed before, the reinstatement of the debt in 1906 could not vitalize the mortgage which was extinguished in 1895.

if it were intended to enable a mortgagee, whose mortgage had ceased to be such, to revitalize his security and impose a lien upon property without the owner's consent, to that extent it deprives the owner of his property It may be conceded that as a general rule without due process of law and is invalid. a court of equity will not cancel a mortgage | The proviso attached to section 1 of chapter of record at the suit of the mortgagor or his 27, above, must have been enacted in ignoprivies, merely because the principal obliga-rance or utter disregard of section 5728, Retion is barred by the statute of limitations. vised Codes, and the effect which its proIn many jurisdictions the lien of the mort-visions had upon mortgages securing debts gage continues notwithstanding the debt is then already barred. barred, and under such circumstances a The affidavit filed by these defendants in court of equity would invoke the maxim, 1913 did not re-establish the Miller mort"He who seeks equity must do equity," "He gage as a lien upon plaintiffs' property, but who seeks cancellation of the lien must pay for the reasons indicated above it casts a the debt." But in this state, where the lien cloud upon their title. The judgment is afof the mortgage is entirely extinguished as firmed. soon as the debt is barred and the mortgagee cannot thereafter assert any claim or interest by virtue of the mortgage, the right of action does not depend upon the bare fact that the debt is barred, but upon the fact that the mortgage has ceased to be of any force or validity; that its cancellation will not deprive the mortgagee of any right; and that the policy of unrestricted devolution of property, which must have prompted the enactment of section 5728, above, is promoted by clearing the record of a cloud which obstructs the plaintiffs in the exercise of their right of ownership.

Plaintiffs do not ask that the mortgage debt be canceled. For aught that appears here, defendants may, in an action upon the Miller note, recover a personal judgment against the maker (Frost v. Witter, 132 Cal. 421, 64 Pac. 705, 84 Am. St. Rep. 53; Association v. King, 83 Cal. 440, 23 Pac. 376); but they cannot benefit from the mortgage and cannot complain that the court below canceled an instrument in which they have no interest. It cannot be inequitable to seek relief which injures no one.

[5] Neither can these defendants exercise the power of sale contained in the mortgage. Proceedings under the power of sale constitute but a shorthand method of foreclosure and presuppose a valid mortgage lien upon the property originally mortgaged. First Nat. Bank v. Bell S. & C. M. Co., 8 Mont. 32, 19 Pac. 403. When the mortgage ceases to be a lien, it ceases to be a mortgage.

[6] A debt is not paid by the running of the statute of limitations. The statute affects the remedy, and it is clearly within the power of the Legislature to so change the statute as to revive the right of action upon a debt long since barred (Campbell v. Holt, 115 U. S. 620, 6 Sup. Ct. 209, 29 L. Ed. 483), but the revival of the right of action upon the debt cannot re-create a lien upon one's property without his consent.

[7] Chapter 27 of the Laws of 1913, which provides a method for renewing mortgages upon real property, is doubtless valid so far as its provisions operate prospectively; but

Affirmed.

BRANTLY, C. J., and SANNER, J., con

cur.

(173 Cal. 1)

POSTLER v. TRAVELERS' INS. CO. (S. F. 6947.)

(Supreme Court of California. July 1, 1916. Rehearing Denied July 31, 1916.)

1. INSURANCE 646(7) — ACTIONS—Burden OF PROOF-SUICIDE.

The insurer has the burden of proving that the assured committed suicide.

SUFFI

Cent. Dig. § 1663; Dec. Dig. ~646(7).]
[Ed. Note.-For other cases, see Insurance,
2. INSURANCE 665(6) — ACTIONS
CIENCY OF EVIDENCE-SUICIDE.
Evidence held to sustain a verdict that an
assured, who was killed by a revolver shot, did
not commit suicide.

Cent. Dig. § 1720; Dec. Dig. 665(6).]
[Ed. Note.-For other cases, see Insurance,
3. INSURANCE 646(6) — ACTIONS-Burden
OF PROOF-CAUSE OF DEATH.

Under a policy insuring against bodily injuries from accidental means, the plaintiff has the burden of proving that assured's death was accidental.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1659-1662, 1664; Dec. Dig. 646(6).]

4. INSURANCE 455-CAUSE OF Loss-LIFE INSURANCE.

Where assured armed himself and went to a gambling house with the stated purpose of recovering money previously lost there, and was fatally shot during the attempt, held that his death was not accidental, but was the natural result of his own acts.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1166-1169; Dec. Dig. ~455.] 5. INSURANCE 668(3)—ACTIONS-INSTRUCTION-CONSTRUCTION OF POLICY.

An instruction, stating the rule for interpreting exceptions in an insurance policy, is improper, for such interpretation is for the court, not for the jury.

[Ed. Note.-For other cases, see Insurance, Cent. Dig. §§ 1734, 1755; Dec. Dig. 668(3).İ 6. EVIDENCE 59-PRESUMPTION-CAUSE OF DEATH.

rather than suicidal.
A violent death is presumptively accidental

[Ed. Note.-For other cases, see Evidence, Cent. Dig. § 79; Dec. Dig. 59.]

1