Herbert v. King
Montana Supreme Court
Appeal from the First District, Jefferson County. In October, 1871, the court, Murphy, J., sustaiued the motion of King et al. for a nonsuit.
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Appeal from the First District, Jefferson County. In October, 1871, the court, Murphy, J., sustaiued the motion of King et al. for a nonsuit. Granting a nonsuit on the facts is a question of law, and may be reviewed on appeal from the judgment roll, and statement of the evidence on appeal. 3 Estee’s PL 496; Cravens v. Dewey, 13 Cal. 42; Darst v. Rush, 14 id. 82 ; Pratt v. Hull, 13 Johns. 335. A nonsuit cannot be granted when there is any evidence tending to prove plaintiff’s case. McKee v. Green, 31 Cal. 418; Kelley v. Kelley, 43 Barb. 419 ; Cravens v. Dewey, 13 Cal. 42. In considering the…
1Opinion of the CourtWade, C. J.
This is an appeal from a judgment of non-suit in the court below, and the question herein presented is whether or not the nonsuit was properly entered.
The action is a suit in ejectment to recover possession of certain mining claims in Baker district, Confederate gulch, in the county of Meagher, embracing three hundred and ninety linear feet of said gulch.
The complaint sets up title in the plaintiff, the right to immediate possession, and the possession of the defendants at the commencement of the suit. The answer denies the title of the plaintiff, denies his possession and the right thereof,…
2Cases cited4 opinions
- Dow v. Gould & Curry Silver Mining Co.California Supreme Court · 1867
- Labar v. . KoplinNew York Court of Appeals · 1851
- Schieffelin v. HarveyNew York Supreme Court · 1810
- Kelly v. KellyNew York Supreme Court · 1848
3Cited by10 opinions
- Creek v. McManusMontana Supreme Court · 1893
- McCabe v. Montana Central Railway Co.Montana Supreme Court · 1904
- Emerson v. Eldorado Ditch Co.Montana Supreme Court · 1896
- Cowan v. BrowneMontana Supreme Court · 1922
- Miner v. CookMontana Supreme Court · 1930
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