Davidson v. Bordeaux , 15 Mont. 245 ( 1895 )

De Witt, J.

— The first error asserted by appellants is that the court overruled two of appellants’ challenges to jurors for cause, when it appeared, as claimed, by the examination of said jurors on their voir dire, that they were disqualified by virtue of opinions which they were shown to entertain. But it does not appear by the record that the defendants at any time before the swearing of the jury had used any of their peremptory challenges; and, for all that appears by the record, the defendants went to trial with the alleged objectionable jurors, and, at the same time, had unused all of their peremptory challenges, with which they might have excluded said jurors. In the case of Territory v. Hart, 7 Mont. 42, it was held that a party objecting for cause to an incompetent juror waived the objection made in that case if he failed to challenge said juror peremptorily, and went to trial with his peremptory challenges unexhausted. In that case it is true that it appeared by the record on appeal that his challenges were not exhausted. But we are of opinion that the rule does, and should, go a step farther than was necessary to hold in the Hart case; and that a party undertaking to save such objection for review on appeal must also be held to show in his record that when he finally accepted the jury he had not remaining a peremptory challenge by which he could have excluded such objectionable juror. This is simply holding that a party claiming that he was injured by a ruling of the court below must present the appellate court with a record which shows the facts upon which he relies. (Thompson on Trials, § 115, and authorities; Burrill v. State, 18 Tex. 730; Robinson v. Randall, 82 Ill. 521; Stout v. Hyatt, 13 Kan. 232; State v. Hoyt, 47 Conn. 518, and cases there cited; Brown v. State, 57 Miss. 424; State v. Raymond, 11 Nev. 98.) This assignment of error is therefore overruled.

There are some questions argued in appellants’ brief as to a forfeiture for nonrepresentation of the St. Lawrence lode mining claim in certain years, but this issue was not made by the pleadings (Wulf v. Manuel, supra, and cases collected), except as to the year 1887. But appellants now abandon any claim of error as to the finding in respondents’ favor in regard to the representation in the year 1887, except as noted in the assignment treated in the next paragraph. There are several other assignments of error mentioned in the brief of appellants, which counsel, on the argument, abandoned.

Another error assigned by appellants is that the court allowed to be introduced in evidence by respondents the affidavit of one John W. Merrill, as to the representation of the St. Lawrence claim in the year 1887. This was an affidavit made under the provisions of section 1483, et seq.} division 5, of the General Laws of Montana. That statute provides (stating it generally and not by detail) that when owners of mining claims have performed the required labor or made the required improvements upon a claim, they may, within sixty days after the termination of the year, make an affidavit of those facts, setting out the nature of the labor and improvements, and file the same with the county recorder, and that such recorded affidavit shall be received or admitted in evidence in any court of justice in this state, and be 'prima fade evidence of the facts recited therein. It is not required that such affidavit be made, but, if it be so made and recorded, it may be used, as above noted, as prima fade evidence. The making and recording of the affidavit is simply a convenient method provided for preserving prima fade evidence of the representation, if one chooses to avail himself of this provision of the law. (Coleman v. Curtis, 12 Mont. 301.)

When the case came on for trial the said affiant Merrill was present and testified as to the representation of said claim in that year. His affidavit, above described, was also used in evidence. The objection is that it was secondary evidence when the primary evidence was at hand. But, in this case, what the appellants call the primary evidence, namely, Merrill’s own testimony, was introduced. We are of opinion that the introduction of the affidavit was wholly immaterial. In the absence of a statute it would of course not be evidence. But the statute expressly made it evidence. It was not necessary or material in the presence of the fact that the affiant was at the trial and testified orally. But the introduction of the affidavit could have done no possible injury to the appellants. The finding of the court as to the representation in the year 1887 was established by Merrill’s testimony, without the use of the affidavit. That finding is not attacked, and it is conceded by appellants in their argument that the Merrill testimony was sufficient to sustain the finding without the use of the affidavit. It is a clear case of damnum absque injuria.

Appellants allege another error in the introduction of evidence of the location notice of the St. Lawrence claim. Appellants objected to the affidavit verifying the location notice. The affidavit was not alleged to be objectionable in any respect, except that the name of the affiant did not appear in the body of the affidavit. The affidavit commenced:

“ Territory or Montana, \ “County of Silver Bow. jss'

“-, being first duly sworn according to law, deposes and says, that she is a citizen,” etc.

The affidavit was then signed, Mrs. Susan A. Smith. A formal Jurat was attached, signed by the notary public. It is held by this court that the declaratory statement of the location of a mining claim must be under oath. (O’Donnell v. Glenn, 8 Mont. 248; 9 Mont. 452; Metcalf v. Prescott, 10 Mont. 283.) If this affidavit, therefore, is insufficient, the location notice is void. But we are of opinion that the affidavit is sufficient. It is not such an affidavit as was held to be bad in Metcalf v. Prescott, supra. In that case the affidavit was not signed, there was no jurat to it, and there was nothing about it to show that the alleged affiant ever signed it, ever swore to it, or was ever before the notary. But in the affidavit now under consideration the affiant does appear to have been before the notary; it is certified that she swore to it, subscribed it, and her name appears as a subscriber. We said in Metcalf v. Prescott, supra, that “an affidavit is one method of taking an oath; an affidavit is ‘a statement or declaration reduced to writing and sworn or affirmed to before some officer who had authority to administer an oath.’ (Bouvier’s Law Dictionary.)” The affidavit before us was a declaration reduced to writing, and it clearly appears that it was sworn to and subscribed before an officer having authority to administer an oath. (See cases cited in Metcalf v. Prescott, supra; People v. Sutherland, 81 N. Y. 1.)

The last assignment of error is that the evidence is insufficient, in that it does not show that prior to the location of the St. Lawrence claim there was any discovery of a mineral-bearing vein. The location of this claim appears, by the evidence, to have been made with much care. The claim was surveyed by a surveyor the day before the location notice was made and filed. The husband of Susan A. Smith, one of the locators, and the person who verified the location notice, was present at the location, and assisted therein, acting in behalf of his wife. He testified quite fully as to the location of the claim, and as to the discovery of a vein. He said that it sli owed very plainly on the surface, and that it was a good-looking vein, and, from appearances, it was a good vein. He described its strike, and gave its width, and stated that it laid in solid granite; that he did not make any assays at the time, but assays were made later, which proved its valuable character as to its being a mineral vein. The witness testified to about all that it was possible for an intelligent prospector to say, without having made an actual assay. The appellants do not claim that there was any testimony offered to rebut the testimony of witness Smith, and, in the absence of any such contraverting testimony, we think the evidence was sufficient to make a prima facie case of the discovery of a mineral vein. We are not prepared to lay down the rule that the locator must show that he has made assays of the vein, when no one disputes the prima fade showing by the evidence of the prospector that the vein was a good one, and appeared to be sufficiently good to justify locating and subsequent working of the same. (Shreve v. Copper Bell M. Co., 11 Mont. 309.)

We have reviewed all the errors which have been relied upon by counsel in their argument, and we think that none of them can be sustained. The judgment of the district court is therefore affirmed.

Affirmed.

Pemberton, C. J., and Hunt, J., concur.