State v. Gilliam

• Decision Date: 13 July 1896
• Citation: 45 P. 661,18 Mont. 94
• Parties: STATE ex rel. THOMAS CRUSE SAV. BANK v. GILLIAM, Sheriff.
• Court: Montana Supreme Court

45 P. 661

18 Mont. 94

STATE ex rel. THOMAS CRUSE SAV. BANK v. GILLIAM, Sheriff.

Supreme Court of Montana

July 13, 1896

For former opinion, see 44 P. 394.

On rehearing. Reversed.

DE WITT, J.

Our opinion was delivered, and the decision made in this case, on March 16, 1896. At that time we were informed that the case of Barnitz v. Beverly, 42 P. 725, had been appealed to the United States supreme court. We therefore required the clerk of this court to hold the remittitur. The published report of Barnitz v. Beverly in the United States supreme court has recently reached us, and we granted a rehearing in this case of our own motion. The United States supreme court, in Barnitz v. Beverly, reversed the Kansas supreme court (16 S.Ct. 1042), and also, as well, overruled, on principle, our decision in this case at bar, rendered on March 16th, last (44 P. 394). We, having decided this case on a federal question solely, and our decision being in accord, on principle, with the United States supreme court, at the date of its rendition, and our decision of the federal question being since directly overruled by the supreme court, shall now place ourselves in accord with the latest decision of the superior tribunal upon this subject. Therefore the judgment of this court, instead of remaining as rendered on March 16th, will now be that the judgment of the district court be reversed, and the district court be directed to issue the writ of mandamus as prayed for. Reversed.

HUNT. J., concurs. PEMBERTON, C.J., not sitting.