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 competent 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."

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 decree 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 injured wife who comes with an adjudication in her favor establishing the validity and justness of her claim.

Judgment affirmed.

WRIGHT ET AL., appellants, . COMMISSIONERS OF GALLATIN COUNTY, respondents.

COUNTY PRINTING Contract for Mandamus 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, 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 re

sides at Bozeman in said county, put in bids for said printing; Wright and 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.

Judgment affirmed.

MURPHY, respondent, v. KING ET AL., appellants.

PRACTICE - 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, 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 exam

ination 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 11th day of April, 1885, said court rendered the judg ment dismissing said appeal, which said judgment is in the words and figures following, to wit, 'Motion to dismiss ap peal 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, 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.

Judgment affirmed.

ALDER GULCH CON. MINING CO., respondent, v. HAYES ET

AL., appellants.

In the ab

PRACTICE- New trial- Appeal - Review of evidence. sence 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.— A'l facts which are necessary to support the judgment and which come 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, 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 conIcluded to consider it.

It is an appeal from a judgment. The evidence has been stricken out of the transcript. But even if it were not, it would not be considered on this appeal from the judgment alone. To enable us to look into the evidence, and to determine whether or not the findings of the court were supported thereby, a motion for a new trial was necessary. Allport v. Kelly, 2 Mont. 343; Chumasero v. Viall, 3 Mont. 376.

There are no bills of exception. The only question, therefore, which this record presents for our consideration is whether or not the judgment is inconsistent with the express findings of the court. Chumasero v. Viall, supra; Mathews v. Kinsell, 41 Cal. 512; Thompson v. O'Neil, id. 683.