Opinion
No. 9886.
Decided April 9, 1959. Rehearing denied June 2, 1959.
Appeal from Powell County; J.B. McClernan, Judge.
Wellington D. Rankin, Arthur P. Acher, Helena, for Appellant.
Wellington D. Rankin and Arthur P. Acher, Helena, argued orally for Appellant.
Keeley, McElwain Ryan, Deer Lodge, for Respondent.
Joseph McElwain, Deer Lodge, argued orally for Respondent.
The facts in this case are identical with those in No. 9885, McGraff v. McGillvray, 135 Mont. 256, 339 P.2d 478. The same legal question is presented here as was considered there.
On the authority of that case, the order appealed from is affirmed.
MR. JUSTICE CASTLES, and THE HONORABLE GUY C. DERRY, District Judge, sitting in place of MR. CHIEF JUSTICE HARRISON, concur.
The facts, circumstances and the applicable law in this case are identical with the companion case, No. 9885, McGraff v. McGillvray, 135 Mont. 256, 339 P.2d 478, in which I dissented, for the reasons given in my dissent in Cause No. 9885 are applicable with equal force here.
For the reasons stated in my dissent in Appeal No. 9885 entitled McGraff v. McGillvray, 135 Mont. 256, 339 P.2d 485, I dissent herein. The defendant executor, William McGillvray, is entitled to a fair trial before a fair and impartial jury. To secure this, defendant's motion for a change of venue should be granted. McGillvray is entitled to a different trial than that accorded the decedent Wilbur C. Cook.