author: MB. CHIEF JUSTICE BBANTLY

text:
    IN RE PETITION OF BOYLE et al. STATE ex rel. BOYLE et al., Petitioners, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.
    (No. 1,761.)
    (Submitted February 3, 1902. (Submitted March 27, 1902. Decided April 7, 1902.)

      Decided March 18, 1902.)

      Restraining Order — Contempt — Habeas Corpus — Certio-rari — Revieu:—Costs.
    1. where one is committed for contempt for violation of a restraining order, and the trial court has jurisdiction of the subject-matter and of the parties, the sufficiency of the evidence cannot be reviewed on habeas corpus.

    2. On certiorari issued in aid of a writ of habeas corpus to secure the release of one committed for violation of a restraining order, the remedy by cer-tiorari only authorizes the court to determine that the lower court had jurisdiction of the subject-matter and of the parties, and that it regularly-pursued its authority, and does not authorize an examination of the sufficiency of the evidence.
    On Motion to Tax Costs.
    Where, on habeas corpus, and certiorari in aid thereof to review an order of commitment in a contempt proceeding, relator asked that the evidence be certified up, defendant, on dismissal at the cost of relator, is entitled to costs for the expense of transcribing the evidence into longhand.
    Application by J. Boyle and others for habeas corpus to sucure their release from custody under a commitment for violation of a restraining order, and, in aid thereof, certiorari by the state, on the relation of J. Boyle and others, to the district court of the Second judicial district for the county of Silver Bow, and the Honorable William Clancy, judge thereof.
    Writs quashed.

      Mr. Alexander Mackel, and Mr. J. E. Jlealy, for Petitioners.

      Messrs. Mediation & Goiter, for Defendants.
   MB. CHIEF JUSTICE BBANTLY

delivered tbe opinion of tbe court.

Application for a writ of habeas corpus and for certiorari in aid thereof. Tbe complainants were adjudged guilty of a contempt, committed by tbe violation of a restraining order issued by tbe district court of Silver Bow county in a cause therein pending, in which Celestia Nixon is plaintiff, and tbe petitioner Boyle and others are defendants. They were sentenced to pay fines, and, in default of payment, were committed to- tbe county jail, to be confined until tbe fines should be satisfied under tbe provisions of Section.2224 of tbe Penal Code. Complainants allege that their imprisonment is illegal, for tbe reason that the evidence adduced at tbe bearing did not tend to show that they bad violated tbe order in question, and that tbe judgment of conviction, based upon a finding thereon, adverse to the defendants, is unauthorized and void. Both writs were issued, and tbe record was certified up.

Upon consideration of tbe question raised by the petition, we have reached tbe conclusion that we have no power, in. this proceeding, to look into tbe evidence adduced by tbe parties, and to determine therefrom whether tbe district court erred in its action thereon. It bad jurisdiction of tbe subject-matter of tbe action wherein tbe restraining order was issued, and of tbe parties thereto. It also regularly acquired jurisdiction of the complainants. They were arrested under an attachment regularly issued, upon affidavit by tbe plaintiff setting forth tbe facts constituting tbe violation of tbe restraining order. Tbe court beard tbe evidence, and -made its finding thereon. Tbe finding is conclusive upon this court in this proceeding, and we cannot interfere, even though it be conceded that there was no evidence to support it. The writ of habeas corpus may not be used to correct errors in proceedings which are within tbe jurisdiction of tbe-trial court; nor may we, upon certiorari issued in aid thereof, go further than to ascertain that tbe court bad jurisdiction of tbe subject-matter of tbe controversy and of tlie parties, and tbat it regularly pursued its authority. The evidence submitted at the bearing is incorporated in the record, but is not, under the law, properly a part of it, and cannot be looked to in order to correct tbe alleged erroneous findings made thereon. In the case of State ex rel. Simard v. Fourth Judicial District Court, 13 Mont. 347, 34 Pac. 39, this court-, upon certiorari> examined the evidence submitted at the hearing in a contempt proceeding, and sustained the action of the district court thereon. But the power to make such review was not called in question, and the case seems to have been submitted upon the theory that the review could go to1 the same extent as if the case had been presented upon appeal. This -case may not be looked to, however, as subversive of the rule which we have followed in the present ease, and which has the sanction of the courts in all those states where the writ of cer-tiorari is confined to its common-law functions.

Many other questions were raised by counsel at the hearing, but they do not fall within the purview of the present applicar tion, and it is not necessary to consider and determine them.

The writs are accordingly quashed and set aside, the proceeding is dismissed, and the complainants are remanded to the custody of the sheriff of Silver Bow county.

Dismissed.

On Motion to Tax Costs.

ME. CIIIEP JUSTICE BRANTLY delivered the opinion of the court.

Motion to tax costs. This was an original application to this court for a writ of habeas corpus, and for certiorari in aid thereof, by which the relators sought a discharge from the jail of Silver Bow county, to which they had beeu committed by art order of the district court of the Second judicial district in default of the payment of a fine imposed in violation of a temporary restraining order issued in a cause entitled “Celestia Nixon v. Geo. W. Andrews et al.” The application was dismissed, after consideration, at the cost of the relators. (68 Pac. 470.) Counsel for the defendants having filed a memorandum of costs with the clerk, the relators have moved to strike out therefrom an item of $39.30 charged for transcript of the evidence returned by the clerk of the district court in obedience to the writ of certiorari. No suggestion is made that the item objected to is unreasonable in amount, nor that the expense of preparing the transcript of the evidence Avas not actually incurred. It is claimed, however, that that item is not a proper charge, under the rule laid down in State ex rel. Baker v. Second Judicial District Court, 24 Mont. 425, 62 Pac. 688. Counsel, however, fails to draw the distinction between the class of cases considered in State ex rel. Baker v. Second Judicial District Court, and the class mentioned in Section 1860 of the Code of Civil Procedure. The order complained of was made in a contempt proceeding in the district court. That was a special proceeding. (State ex rel. Healy v. District Court of Second Judicial District, ante, p. 224, 68 Pac. 470.) It Avas therefore a decision made in a special proceeding, and brought before this court in a manner other than by appeal. The defendant is therefore entitled to recover all costs properly incurred. This court was asked by relator to have the evidence taken at the hearing in the district court certified up by that court, which Avas accordingly done. The defendant therefore necessarily incurred the costs incident to the preparation of it, and under the provisions of Section 1860, supra, is entitled to recover the expense of it, as a proper disbursement.

It is said by counsel for .defendants that the item in controversy should be allowed for the reason that it was incurred by defendants under circumstances similar to those presented in State ex rel. King v. District Court of Second Judicial District, 25 Mont. 1, 63 Pac. 402. Speaking generally, this is true, for the clerk cannot transcribe the notes of the stenographer until they have been extended in longhand. Por the expense of such extension, whenever the evidence is required to be included in the record, costs may be recovered, even though for the transcript of the records in the clerk’s office, which the clerk can make himself, no fee is allowed. In the class of cases to which the present belongs, and which fall under Section 1860, supra, all costs necessarily incurred may be recovered under that section also-.

The motion is therefore overruled.


source: Caselaw Access Project

author: ME. JUSTICE MILBUDN MR. Chief Justice Brantly: Mr. Justice Pigott:

license: Public Domain

text:
    STATE ex rel. BARKER, Relator, v. DISTRICT COURT OF THE EIGHTH JUDICIAL DISTRICT, Respondent.
    (No. 1,792.)
    (Submitted March 17, 1902.
    Decided March 20, 1902.)

      Administrators — Settlement of Accounts — Turning Over Property to Special Administratrix — Jurisdiction to Require— Certiorari.

    1. The district court, in settling the account oí an administrator, had jurisdiction to require him to turn over to the special administratrix certain property which had come into his possession in his representative capacity, though there was a dispute as to the ownership of the property, the administrator claiming it in his private capacity as agent for a third party.
    2. The administrator, in his private capacity, was not a party in interest aggrieved by the order requiring him to turn over the property, and could not bring certiorari to have it reviewed.
    Mb. Justice Pigott dissenting.
    Certiorari by the state, on tlie relation of David L. S. Barker, to review an order of the district court- of the Eighth. judicial district cf Montana in and for Cascade county.
    Writ quashed, and proceedings dismissed.

      Mr. Fletcher Maddox, Mr. II. Cr. Mclntire and Mr. 8. II. Mclntire, for Delator.

      Mr. 17. Cr. Downing, Mr. T. F. Brady and Mr. 17. F. O’Leary, for Despondent.
   ME. JUSTICE MILBUDN

delivered the opinion of the court.

This cause is before the court upon the motion of respondent to quash the certain writ of certior'ari heretofore issued herein, and to dismiss ihe proceedings.

By an order of the district court, in probate, D. L. S. Barker, administrator of the estate of E. J. Barker’, deceased, having resigned his office, was required to turn over to Marcella Barker, sjjeeial administratrix, certain mining stock certificates, said Marcella Barker having been duly appointed as such special administratrix. Mr. Barker prays in his petition herein that the order of the court be annulled on the ground that the court exceeded its jurisdiction. His petition is made in propria persona, and not as administrator, he setting up that the certificates are in bis possession as the agent of one Jane Barker, who, he says, is the owner thereof, and that they were not at any time the property of the deceased.

We may not go into the evidence to determine who owned or owns the stock. It appears from the record certified to this court that at the time the court below made the order complained of by petitioner the certificates were in the hands of Mr. Barker, who was then settling his accounts as administrator, and that they had been in his hands while acting as administrator, having, as the court states in its order, received them into his possession with certain other effects found in the possession of the intestate at the time of his death, the said certificates having been issued in the name of Jane Barker, and by her indorsed in blank; and thus the property in question would appear prima facie to be the property of the estate.

On the one side it was contended that the certificates belonged to the estate; on the other part it was asserted that they were, and always had been, the property of Jane Barker, and were and are held by D. L. S. Barker as her agent, and not as the administrator of the estate.

While it ap£>ears that the court below seems to have gone into the question as to who was the owner of the property, and into the matter of who had possession of the certificates, at the time of the death of the intestate, it is only necessary for us to find that the court had before it a dispute as to who owned said property which the administrator had in his hands at the time he was settling his accounts. It is not disputed that the property came into his hands by virtue of his appointment as administrator. The fact that -while he was the administrator he was also claiming the right of possession in his private capacity does not alter the case, for as administrator he was also the officer of the court; and the effect of the order was and is to retain under the control of the court property which prima facie appeared to belong to the estate until the question of ownership or right of possession may be settled in a proper action in the proper forum. This certainly was within the juris-distion of the probate side of the district court. The administrator must get his orders from the court, and must obey all lawful orders. lie may, if he be entitled to the possession of the property, and under protest, perhaps, leave it in the possession of the court, fearing punishment for contempt if he disobey; and, if he believe that he has the right to the possession of the certificates, bring appropriate action against the •special administratrix to recover the same.

Nothing herein contained should be understood as, or misconstrued into, a holding that the district court in probate proceedings could lawfully and conclusively decide the-dispute as to who was the real owner of the certificates.

The court did not exceed its jurisdiction in requiring the administrator to turn over tlie property to the court’s officer, to-wit, the special administratrix, leaving Jane Barker and D. L. S. Barker to projoer proceeding’s in the proper forum to establish whatever rights they, or either of them, may have in the property or to the possession thereof.

As a private citizen, Mr. Barker is a stranger to the probate proceedings, so far as the record shows, and is not a party in interest aggrieved by the said order, and for this reason also 'the writ must be quashed.

Writ quashed and proceedings dismissed.

Dismissed.

MR. Chief Justice Brantly:

I concur.

Mr. Justice Pigott:

I dissent,

liehearing denied April 2, 1902.


author: MR. CHIEF JUSTICE BRANTLY ülR. Justice jMilbukN: Me. Justice Pigott:

text:
    STATE ex rel. FINLEN, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,784.)
    (Submitted March 21, 1902.
    Decided March 25, 1902.)

      Mandamus — Hearing on Return to Alternative Writ — New Trial — Scandalous Affidavits in Support — Discretion of Trial Court'in Striking Out — Unnecessary Delay in Determining Motion for Neia. Trial — Burden of Proof.

    1. An order of the trial court striking out affidavits filed in support of a motion for a new trial on the ground that they were disrespectful, scandalous and contemptuous, being an order made in the exercise of the court’s discretionary power, mandamus will not lie to compel their restoration, even though it be conceded that the discretion was not wisely exercised.

      2. "Where defendant claims that his answer made to an alternative writ of mandate shows a compliance therewith, the relator may controvert the truth of such answer and thus to enlighten the court as to what further order the court should make.
    •3. Oiifcr; The trial court has no power to prevent the party claiming to be aggrieved by an order striking out — as being scandalous and contemptuous —affidavits filed in support of a motion for new trial from having the same reviewed by the supreme court, and to this end should settle a bill of exceptions embodying the matter.
    4. Obiter: "When matters contained in a pleading or affidavit are pertinent and must be alleged therein in order to have the judgment of the court upon the rights of the parties thereon, even though such matters reflect upon the court or a party, they may not be characterized as scandalous and stricken out by the court.
    5. The relator in mandamus to compel the trial judge to determine the motion for a new trial, the decision of which is alleged to be unnecessarily delayed, has the burden of showing such unnecessary delay.
    6. The mere fact that the trial judge had delayed the determination of a motion for a new trial for 45 days is not sufficient, in mandamus proceedings to compel a decision thereof, to show that the court has unnecessarily delayed the decision.

      7. Quaere: Whether an order striking out affidavits in support of a motion for a new trial is an appealable order?
    OeigiNal mandamus by the state, on tlie relation of Miles Finlen, against the district court of the Second judicial district of Montana and others.
    Writ set aside.

      Messrs. Forbis & Evans, Mr. A. J. Shores and Mr. C. F. Kelley, for Relator.

      Messrs. McIIalton & Coiier, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Application for mandamus. In a cause pending in the district court of Silver Bow county, entitled “Miles Finlen v. F. Aug. Heinze et al.," after a trial by the court without a jury, finding's of fact and conclusions of law were made on June 18, 1901, in favor of the defendants. Judgment was entered thereon July 11, 1901. Within the time allowed by the statute, and in conformity with its requirements, the plaintiff prepared his motion for a new trial, basing the same upon a statement of the case and upon affidavits. The statement was properly settled and filed with the clerk. • The affidavits were also filed within the time allowed by the court for that purpose. On January 13, 1902, the motion came regularly on for hearing,- and was submitted to the court without argument for determination, Hon. E. ~W. Harney being the judge presiding, and was taken under advisement. On February 25, 1902, the motion not having been sooner determined, Miles Finlen, the plaintiff in the cause and the relator herein, applied to this court for a peremptory writ of mandamus to compel the district court and E. W. Harney, the judge, to determine it. The application was made upon the ground that the decision upon the motion had been unreasonably delayed. To the alternative writ issued by this court the said Ilaraey made answer denying the charge of unreasonable delay, and stating that on March 15, and before the return day, the motion had been determined, not because he or the court had been negligent in the performance of their duty in so deferring the decision, but that it had been taken up. out of its proper order and disposed of, to the end that this court might be saved any trouble or annoyance. Upon the filing of the answer the relator asked leave to controvert the truth of it, and to show that the motion had not been determined, but that the judge had, in fact and of its own motion, first stricken from the files the affidavits submitted in support of it, and had then denied the motion, thus eliminating from the record all matters tendered in support of one of the most important grounds upon which the motion was based, and practically evading the command of the alternative writ. From a certified copy of the entry in the journal of the district court made at the time action was had upon the motion, it was made to appear that the affidavits were stricken from the files and ordered returned to the relator’s counsel on the ground that the statements contained in them were disrespectful, scandalous and contemptuous, in that they reflected upon the judge who tried the cause. It also appears that they were thus stricken out before the motion was determined, and that the matters set forth in them were not considered in support of one ground of the motion. This court was then asked for a peremptory writ of mandamus directing the defendants to restore the affidavits to the files and to determine the motion as submitted.

Whatever rights the relator may have in the premises, they cannot be considered in this proceeding. The command of the alternative writ was that the court and its judge should proceed to determine the motion, or show cause why they had not done so. Under the mandate of the writ, the court and its judge were left to determine the motion in just the same way as it might have been determined if the writ had not been issued. The solo office of the writ was to1 expedite the determination of the motion if it appeared that a decision upon it had been unnecessarily delayed, and not to control the district court in the exercise of its discretion in the premises. In striking out the affidavits, the court exercised a discretion with which we cannot interfere by mandamus. To illustrate: If the motion had been disposed of before this application was made, we would have had no power to compel by mandamus a restoration of the affidavits to the files. The district court has the power to determine what is scandalous matter in a pleading, affidavit, or other paper put upon the files, and to order the same to be stricken out, to the end that the files may be free from objectionable or scandalous matter. That court, however, has mr power to prevent the party claiming to be aggrieved by such an order from having the same reviewed in an appropriate way, and to this end should settle a bill of exceptions embodying the matter, so that the order may be properly reviewed by this court. Otherwise, should that court have fallen into error and determined that tbe matters stricken out are scandalous, when, in fact, they are not, the rights of the moving party might thus be lost. Matters which are not pertinent to the controversy, and which at the same time reflect upon the court or a party, are properly characterized as scandalous. When, however, the same matters are pertinent, and must be alleged in the pleading or affidavit in order to have the judgment of the-court upon the rights of the parties thereon, then they are not in fact scandalous and may not be so characterized and stricken out.

There was no evidence offered at the hearing tending to show "that the disposition of the motion had been unnecessarily delayed. The burden was upon the relator to show such fact, if it existed. This situation of affairs presented at the hearing necessarily requires this proceeding to; be dismissed. This court cannot- presume that the district court., or its presiding judge, has willfully or unnecessarily delayed or refused to determine a matter submitted, merely because there has been a lapse of 45 days between the date of the submission and the date of the application to- this court. Whether or l.ot sncli intervening delay was unnecessary would depend largely upon the volume of business before the court and the time at its disposal to devote to it.

Nor may we say what course the relator should pursue of what remedy he should adopt, in order to preserve his rights in the premises.

It was urged at the hearing that- the district judge, at the time the motion was determined in that court, refused to settle a proper bill of exceptions for the plaintiff in order that he might present to this court for review the order striking out the affidavits. Whether or not this is a fact is not now a pertinent inquiry. This court holds that an order striking out a statement on motion for a new trial is an appealable order. (Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106.) The supreme court of California follows the same rule (Symons v. Bunnell, 101 Cal. 223, 35 Pac. 770), the theory being that such an order is a special order after final judgment, within tlie provision of tbe statute. Whether an order striking out affidavits in support of the motion is appealable, upon the same theory, has never been decided by this court. Reasoning by analogy, it may seem that it would fall within the terms of the statute; but the supreme court of California holds to the contrary, and declares that such an order may be reviewed only on appeal from the order denying a new trial, the statute in each state being the same. (Melde v. Reynolds, 120 Cal. 234, 52 Pac. 491.) We refrain from expressing any opinion, however, until the question is properly raised, leaving the relator herein to pursue such remedy as he may be advised is suitable to the circumstances.

It was plausibly argued by counsel for the. relator that the cases of Raleigh v. District Court, 24 Mont. 306, 61 Pac. 991, 81 Am. St. Rep. 431, and State ex rel. Donovan v. District Court of Second Judicial Dist., 25 Mont. 355, 65 Pac. 120, apply directly to this case, and are conclusive, as to the power of this court to grant the relief demanded. If the factsún this case had warranted the issuance of the peremptory writ to compel a decision of the motion, — which we have said they do not, —these cases would furnish no precedent for a direction to the district court to restore the affidavits to the tiles and to pass upon the motion as submitted. In the former case it was held that where the district court refused to- take jurisdiction of a second contest of a will, the same being tiled before the hearing on probate was had, or, after having obtained jurisdiction, refused to proceed in its exercise by reason of an erroneous decision of a question of law or practice presented upon a preliminary objection, mandamus was the proper remedy to compel the court, to restore to the files such contest, which had been stricken out, and to proceed to a hearing of it. In the second case the court struck from the files a contest of a will presented by the attorney general on behalf of the state, on the grounds that, it was filed too late, and that the state had no such interest in the estate as would authorize a contest of the will in its behalf. If was held that mandamus was the proper remedy to compel the court to entertain jurisdiction and to proceed to a bearing.

In the present case the order striking out the affidavits was made in the exercise of the court’s discretionary power, and mandamus will not lie to compel their restoration, even though it be conceded that the discretion was not wisely exercised.

Let the writ be set aside, and the application- be dismissed, at the cost of the relator.

Dismissed.

ülR. Justice jMilbukN:

I concur.

Me. Justice Pigott:

Though I concur reluctantly, I do so without hesitation.

      At the hearing:, upon the objection of the defendant -to the admission of evidence, the court ruled as follow s:
      THE. CHIEF JUSTICE.: The general objection to the admission of evidence will be overruled. I will make a brief statement of the views of the court upon this matter. It as comp etent for a defendant upon application for a writ of mandamus to controvert the allegations contained in the affidavit pertinent to the ultimate question whether -the peremptory writ ought to issue. In addition to this, when answer is made in which -the defendant alleges a compliance with the command of the alternative writ, the relator is authorized, under the statute, to controvert the truth of such answer, and thus to enlighten the court as to what further order should 'be made, if any.- Of course, if the answer is found -true, this is the end 'of the controversy, except to enter an order disposing of the costs. [O. T. C.]


author: ME. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. LEYSON, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,752.)
    (Submitted March 22, 1902.
    Decided March 26, 1902.)

      Certiorari — Adminisiration—Order of Partial Distribution— Appealable Order.

      Certiorari will not be granted to review an order for the partial distribution of tlie estate.óf a decedent, since there is an appeal from such order.

      Certiorari by the state, on the relation of John II. Leyson, administrator of the estate of A. J. Davis, deceased, against the district court of the Second judicial district of the state of Montana, and E. W. Ilarney, judge thereof.
    Dismissed.

      Messrs. Forbis <£• Mattison, and Mr. E. N. Harwood, for Relator.

      Messrs. Olayberg & Qunn, for Respondents.
   ME. CHIEF JUSTICE BRANTLY

delivered tlie opinion of tlie court.

Application for writ of certiorari to review and annul an order of partial distribution made by tbe district court of Silver Bow county in tlie matter of the estate of A. J. Davis, deceased.

The writ is denied, for the reason that an appeal lies from the order complained of, and it therefore cannot be reviewed -by means of certiorari. (Code of Civil Procedure, Sec. 1721; Id. Sec. 1722, Subd. 3; Laws 1899, p. 146; Code of Civil Procedure, Sec. 2832; In re Phillips’ Estate, 18 Mont. 311, 45 Pac. 222; State ex rel. Whiteside v. First Judicial Dist. Court, 24 Mont. 552, 63 Pac. 395; State ex rel. King et al. v. Second Judicial Dist. Court, 24 Mont. 494, 62 Pac. 820.)

Let the application be dismissed.

Dismissed.

(Submitted March 26, 1902. Decided March 27, 1902.-)

(Submitted April 14, 1902. Decided April 18, 1902.)


author: MK.‘ JUSTICE PIGOTT ME. JUSTICE PIGOTT

text:
    KRANICH, Appellant, v. HELENA CONSOLIDATED WATER COMPANY, Respondent.
    (No. 1,439.)

      Appeal — Judgment Poll — Record on Appeal — Bill of Exceptions — Striking from Record — Rules of Supreme Court — - Briefs.

    1. Where a bill of exceptions is prepared and settled under the provisions of Section 1154, or of Section 1155, of tbe Code .of Civil Procedure, it is part of tbe judgment roll described in Section 1196, and when a copy thereof certified as correct is included in tbe transcript filed on appeal, as required by Section 173G, it should not be stricken from tbe record on tbe ground that it was not served or filed in time.
    2. Where a bill of exceptions is prepared as a bill on motion for a new trial under tbe provisions of Subdivision 2 of Section 1173, and is relied upon by tbe appellant on appeal from tbe judgment, it is not embraced in the judgment roll, but is part of tbe record on tbe appeal and as such, when properly furnished by copy to tbe supreme court, may not be stricken out on the ground that it was not served or filed in time.

      3. Where appellant’s brief fails to comply with the requirements of Subdivision “a” of Section 3 of Rule X of the Supreme Court, the judgment appealed from will be affirmed (unless the respondent moves a dismissal of the appeal 'because of such failure).

      Appeal from District Court, Lewis and Clarke County; II. C. Smith, Judge.

    ActioN by AVilliam Kranicli against the Helena Consolidated AVater Company. From a judgment for defendant, plaintiff appeals. Motion to strike the bill of exceptions from the record.
    Denied. Judgment affirmed.

      Messrs. Sanders & Sanders, and Mr. II. J. Burleigh, for Appellant.

      Messrs. Clayherg & Gunn, for Despondent.
   MotioN to Struck Out Bill oe Exceptions.

MK.‘ JUSTICE PIGOTT

delivered the opinion of the court.

The plaintiff has appealed from a final judgment. The defendant moves that the bill of exceptions included in the transcript be stricken therefrom for the reason that it was neither served nor filed in time, and is therefore not properly a part of the transcript or record on appeal. The objections of the defendant to the settlement, together with the matter in support of the objections, appear upon the face of the bill.

The record on appeal from a final judgment consists of a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement of the case upon which the appellant relies. 1^36 of the Code of Civil Procedure.) If the bill, the copy of which is sought to 'be stricken, was prepared and settled under the provisions of Section 1154, or of Section 1155, of the Code of Civil Procedure, it is part of the judgment roll described in Section 1196, and is authorized or required to be furnished by copy as part of the record on appeal from the judgment. If it was prepared and settled as a bill on motion for a new trial under the provisions of Subdivision 2 of Section 1173, and is relied upon bj the appellant, it is not embraced in the judgment roll, but is part and parcel of the record on the appeal and as such may be furnished by copy to this court. So far as the motion is concerned, it is not necessary to inquire whether or not the bill is part of the judgment roll. It was settled and certified by the judge of the trial court, and was then filed with the clerk of that court. The appellant relies upon it. It is properly embraced in the record on appeal. Whether its contents can be considered is a question which does not now arise. The motion must be denied. “None of the properly authenticated and certified papers authorized or required to be furnished to this court upon appeals ought ever to be stricken out when presented in conformity with the rules. Their place is in the record. Their effect is properly a matter for determination upon consideration of the case upon the entire record. For example, the notice of intention to move for a new trial is not one of the papers constituting the judgment roll, nor is it one of the papers described in Sections 1116 and 1738 of the Code of Civil Procedure, as required to be furnished on appeal from an order granting or denying a new trial. It is therefore no part of the record on appeal, and hence will be stricken out even if formally certified by copy, as was done in Carr, Ryder & Adams Co. v. Closser, 25 Montana, 149, 63 Pac. 1043. If, however, the notice of intention to move for a new trial be included in a statement or bill of exceptions on motion for a new trial, it is thereby made a constituent part of the record on appeal, and should not be stricken out, even though it may have been served or filed out of time, and must be disregarded upon the submission of the case. So with a statement or bill of exceptions used on the hearing of a motion for a new trial. When certified and brought to' this court in the regular mode, it is part and parcel of the record on appeal, and is entitled so to remain, although,, because of some defect or invalidity, such -as failure to contain a specification of the particulars in which the evidence is insufficient, it may not be capable of subserving the purpose for which it was intended, or must be disregarded because a draft of the proposed statement was not served in time.” (Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 371, 65 Pac. 106, 108.) This rule of practice we approve.

Let the motion be denied.

Appeal erok Judgmewt.

ME. JUSTICE PIGOTT

delivered the opinion of the court.

This is an appeal from a judgment entered on December 31, 1898. The cause has been submitted on briefs without oral argument.

Subdivision a of Section 3- of Pule X of this court provides that the appellant’s brief shall contain “a concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised, which abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, orders and judgment may be easily fo-und.” We quote the only abstract or statement of the case contained in appellant’s brief:

“Statement of the Case.
“The plaintiff was the owner of a tract of land in Helena, on which, and as a part of which, was a stream of water. By a former adjudication of the court it had been decreed that one of the rights and possessions of the plaintiff and his partner was at the head or upper end of his claim, seven inches of water, thereafter inseparably ■ a part and parcel of his said property. Eor many weeks in each year that seven inches was supplied, but at certain periods waters were so diverted from the gulch as that they did not flow to the head of his claim. By the statute of adverse possession in Montana then in force, applicable to his right, a period of ten years must elapse to preclude the assertion by him in court of his right. During this period he had asserted this right in court and had obtained a decree against the grantors of the defendant annihilating any claim or color of title in them to> seven inches of this water, and this defendant stood as a naked trespasser.” The statement imparts no information in respect of the action, of the questions involved, or of the manner in which they are raised; nor does it mention the pleadings, evidence, orders, or the judgment, or refer to the pages of the transcript where any of them may- be found. It fails in every respect to comply with any requirement of Subdivision a of Section 3, supra. Upon the authority of McCleary v. Crowley, 22 Montana Reports, 245, 56 Pacific Reporter, 227, Smith v. Denniff, 23 Montana Reports, 65, 57 Pacific Reporter, 557, Rehberg v. Greiser, 24 Montana Reports, 488, at page 490, 62 Pacific Reporter, 820, and of the many other like cases decided by this court, the judgment must be affirmed.

Consideration of the respondent’s motion to dismiss the appeal for the reason that the appellant has not furnished the proper record, as well as of the question whether the bill of exceptions is properly before us, is therefore unnecessary.

Let the judgment be affirmed.

Affirmed.


author: ME. JUSTICE PIGOTT

text:
    JOHNSON COUNTY SAVINGS BANK, Appellant, v. JOE KLAFFKI COMPANY, Respondent.
    (No. 1,782.)
    (Submitted March 25, 1902.
    Decided March 27, 1902.)

      Appeal — Undertaking on Appeal — Time of Tiling — Notice of Appeal — Service by Mail.

    1. under Code of Civil Procedure, Sec. 1724, an undertaking on appeal— unless waived — must befiled within five days of the service of the notice on the adverse party, and not within five days from the filing of the notice with the clex-k, if the filing occurs after the date of such service.
    2. The time of filing the undertaking on appeal is not extended by the provisions of Section 1833 of the Code of Civil Procedure, in a case in which the appellee resides at a distance and service of the notice of appeal is made through the mails.

      Appeal from District Court, Silver Bow County; J. B. Mc-Clernan, Judge.

    Action by tlie Johnson County Savings Bank against the Joe Klaffki Company. Judgment was rendered in favor of defendant, and plaintiff appeals.
    Motion to dismiss appeal 'sustained.

      Messrs. Busch & Kremer, for Appellant.

      Mr. J. W. Stanton, for Respondent.
   ME. JUSTICE PIGOTT

delivered the opinion of the court.

Motion to dismiss appeal. On December 11, 1901, the plaintiff served the defendant with notice of appeal from a judgment, and on December 19, 1901, caused the same to be filed in the office of the clerk of the court below. On the day last mentioned the plaintiff caused to be filed an undertaking on appeal. The respondent moves a dismissal upon the ground that the undertaking was not filed within five days after -the service of tlie notice of appeal. In opposition to the motion the appellant contends that since the undertaking was filed on the same day the notice was filed, though more than five days after its service upon the respondent, the appellant complied with Section 1124 of the Code of Civil Procedure, providing: “An appeal is iaken by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney. The order of service is immaterial, but the appeal is ineffectual for any purpose unless within five days after service of the notice of appeal, an undertaking be filed, or a deposit of money be made with the clerk, as hereinafter provided, or the undertaking be waived by the adverse party in writing.” Counsel argue that the section requires service of the notice of appeal upon the clerk as well as upon the adverse party; that filing with the clerk is serving that officer; and that the undertaking, having been filed within five days after service of the notice upon the clerk, was in time. They assert that the language of the statute contemplates service upon the clerk, calling particular attention to the words: “The order of service is immaterial.” The contention is without merit. Between the 'filing of a notice with the clerk, and the serving of it upon him, there is a broad distinction, as was pointed out in Territory v. Hanna, 5 Montana Reports, 246, 5 Pacific Reporter, 250. Filing the notice with the clerk is one thing. Serving it upon him is another and a different thing. The reason why the words last quoted were inserted into the statute appears from a consideration of the former law, which omitted them. (Sections 310, 381, Codified Statutes 1871-72, pp. 107, 110.) It was then necessary that the filing should have preceded or been contemporaneous with the service upon the adverse party (Hastings v. Halleck, 10 Cal. 31; Buffendeau v. Edmondson, 24 Cal. 95), and, if the filing was subsequent to the service, no appeal was taken. The addition to the statute of the sentence quoted tvas for the purpose of permitting the notice to be served either before or after the filing, — in other words, under tlie present statute, tbe order of tbe service and tbe filing of tbe notice is immaterial. Whether both must be on the same day, we do not decide. It is of no consequence which is done first. This is obvious. The matter is somewhat discussed in Hayne on New Tidal and Appeal, Section 210, Subd. 2.

Appellant’s counsel advance another argument against the granting of the motion to dismiss. They say that service of the notice of appeal was by mail, — appellant’s counsel residing at Butte, and respondent’s counsel at Great Balls, 172 miles distant, — and that the time within which the appellant was required to file the undertaking was extended one day for every twenty-five miles of distance between the two places. They invoke the provisions of Section 1833 of the Code of Civil Procedure providing that service by mail is complete at the time the notice or other paper is deposited in the postoffice, addressed to the person on whom it is to be served, at his office or jdace of residence, postage paid, “but if within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right, may be exercised or act bo done, is extended one day for every twenty-five miles distance between tlie place of deposit and the place ef address.” Assuming the facts to be as asserted by counsel, it is enough to. say that the respondent — the party served with the notice — is the adverse party. Under Section 1833, the party serving a notice can never be a party adverse to himself. (Brown v. Green, 65 Cal. 221, 3 Pac. 811.)

The undertaking on appeal was not filed within five days after service of the notice of appeal, and the respondent has not' waived his right to move a dismissal. Upon the authority of Hines v. Carl, 22 Montana Reports, 501, 57 Pacific Reporter, 88, and cases there cited, the motion is granted, and the appeal is dismissed.

Dismissed.


author: MR. JUSTICE PIGOTT

text:
    T. C. POWER & BROTHER, A Corporation, Respondent, v. MURPHY et al., Appellants.
    (No. 1,597.)
    (Submitted March 17, 1902.
    Decided March 31, 1902.)

      Appeal — Adverse Party — Service of Notice — Dismissal— Bankruptcy.

    1. where plaintiff recovers judgment in an action to foreclose a mortgage, and a deficiency judgment against the mortgagor, he failing to answer, lie is an interested and necessary party to an appeal taken by other defendants, who claim liens on the mortgaged premises superior to the mortgage, and if notice of such appeal is not served on him, as required by Code of Civil Procedure, Sec. 1724, the appeal will be dismissed.
    2. The fact that such mortgagor was adjudged a bankrupt after the appeal was taken will have no effect on a motion to dismiss the appeal.

      Appeal from District Court, Chotean County; Dudley Du Bose, Judge.

    ActioN by T. C. Power & Brother, a corporation, against John T. Murphy, Henry L. Chipman, George D. Patterson and Louisa Patterson. Prom a judgment for plaintiff and an order denying a new trial, defendants Murphy and Chipman appeal.
    Appeals dismissed.

      Mr. M. Bullard, and íkr. II. Or. Mclnti/ra, for Appellants.

      Messrs. Walsh & Newman, for Respondents.
   MR. JUSTICE PIGOTT

delivered the opinion of the court.

These are appeals by Murphy and Chipman, two of the- defendants, from the judgment and an order overruling their motion for a new trial. The respondent moves the dismissal of the appeals upon the grounds — First, that the appellants have not filed their brief within the time required by the rules of this court; and, secondly, that notice of the appeals was not served upon the defendants George D. Patterson and wife, or on either of them.

The action was brought on a note for $3,000, made by Patterson to the plaintiff’s assignor, the payment of which was secured by a mortgage executed by Patterson and wife. The object of the action was to procure a sale of the property mortgaged, the foreclosure of the equity of redemption of each of the defendants, and a personal judgment against George D. Patterson in the event the proceeds of such sale should be insufficient to satisfy the amount due to the plaintiff. The Pat-tersons were duly served with summons and a copy of the complaint. They made default. The defendants Murphy and Ghipman, by answer (which, so far as the transcript discloses, was not served upon the Pattersons), denied the execution of the note and mortgage, or that anything was due or owing upon either, and pleaded affirmatively that at the time the mortgage was made they owned, and still own, undivided interests in the land described in the mortgage, and then had, and ever since have held, a lien upon Patterson’s interests therein paramount to the mortgage lien asserted by the plaintiff. Upon trial of the issues joined between the plaintiff and Murphy and Ghipman, the court found that the plaintiff’s mortgage was the first lien upon a certain part of the land, superior to the title and to the lien of Murphy and Ghipman; and further found that Murphy and Ghipman’s lien on the remainder®of the land was superior to that of the plaintiff’s mortgage. Judgment in accordance with the findings was entered for the sale of the land and the application of its avails toward satisfaction of the mortgage' debt due to the plaintiff, and (if the proceeds of sale should be insufficient to liquidate the plaintiff’s demand) for the docketing of a deficiency judgment against the defendant George D. Patterson, who was personally liable on the note. Murphy and Ghipman moved for a new trial, addressing the notice of intention to, and serving it upon, the Pattersons. The motion .was denied. Murphy and Ghipman then served notice of their appeals from the judgment and order denying a new trial, but neither directed tlie notice to, nor served it upon, Patterson or bis wife. Patterson lias not appeared in this court; hence the .question whether his voluntary appearance- would remedy the omission to serve notice of appeal upon him is not presented.

By failing to answer the complaint, Patterson admitted the material allegations therein contained to be true, and this is all he admitted. ITis default was tantamount to consent that a judgment in accord with the averments of the complaint- might be entered against him. That pleading did not tender any issue to him with -respect to Murphy and Chipman’s lien or title. A party to a judgment whoso rights may be injuriously affected by its reversal or modification is entitled to notice of appeal; the fact that he failed to answer the complaint, does not deprive him of such right. Section 1124 of the Code of Civil Procedure provides, among other things, that “an appeal is taken by filing with the clerk of the court in which the. judgment. or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a similar notice on the adverse party or his attorney.” This means, of course; that the notice must be served upon every adverse party. A party is adverse who has an interest in opposing the object sought to be accomplished by the appeal. In the language of Chancellor Walworth in Thompson v. Ellsworth, 1 Barbour’s Chancery, 624, by adverse party is meant “the party whose interest in relation to the subject of the appeal is in conflict with the reversal of the order or decree appealed from, or the modification sought for by the appeal.” The purpose of the appeals in the present case is to reverse the judgment, or to procure its modification, so that the title and lien asserted by the appellants, and which have been declaimed subordinate to the demand of the plaintiff, may attach as a charge-superior to the plaintiff’s demand. The effect of such reversal or modification uould be to release (so far as this action is concerned) certain of Patterson’s property from the prior lien thereon of the respondent as declared by the judgment, thereby diminishing the fund to arise from the decretal sale, and tending to increase the amount of any deficiency judgment that might be rendered against Patterson. ' The appellants seek, by the attempted appeals, to have respondent’s mortgage declared^ inferior to their title and lien. If the judgment appealed from stands, the respondent must, before it can have and enforce a personal judgment against Patterson, exhaust the remedy afforded by the mortgage, — it must sell the land. Such decretal sale might satisfy the judgment establishing the indebtedness-due from Patterson to the respondent.

If -the action had been to- foreclose a mortgage made by another person to secure payment of Patterson’s note, would not Patterson have an interest in opposing the reversal of a judgment declaring such mortgage paramount to liens set up by certain defendants? That he would seems clear, flight he not be interested in seeking to- vacate a judgment declaring the respondent’s mortgage to be inferior to the appellants’ liens? The priority of the respondent’s lien, as established by the judgment, is a matter in which Patterson has an interest recognized by the law, and he is interested in maintaining the integrity of the judgment declaring the respondent’s mortgage to be a superior lien upon 2>art of the- property. The case of Moody v. Miller, 24 Oregon Reports, 179, 33 Pacific Reporter, 402, involved a question similar to- the one raised here, and the court dismissed the appeal. (See, also, Harper v. Hildreth, 99 Cal. 265, 33 Pac. 1103; Bowering v. Adams, 126 Cal. 653, 59 Pac. 134; and 2 Cycl. Law & Proc. 863, 864.) Not having appealed, he is presumed to he satisfied with the judgment which established such lien, and to object to a reversal of it or to a change in its terms. lie has the right to be heard in support of the judgment and the order denying a. new trial; hut- lie has not been subjected to the jurisdiction of this court.

The fact that Patterson has been adjudged a bankrupt since tlie taking of the appeals is a matter of no moment upon this motion.

The defendant- George 1). Patterson was an adverse party. He was not served with notice o.f either appeal, and hence both appeals must be dismissed. So liolding, consideration of tbe question whether his wife was an adverse party, and of the first ground of ihe motion, is unnecessary.

The appeals are dismissed.

Dismissed.


author: MR. JrSTKTE PIGOTT

text:
    STATE ex rel. McGINNISS, Appellant, v. DICKINSON, Respondent.
    (No. 1,436.)
    (Submitted March 12, 1902.
    Decided April 7, 1902.)

      County Auditor — Creation■ of Office — Statutes—Repeal.
    The office oí county auditor in counties below the third class was abolished by Act of March IS, 1893 (Political Code, Sec. 4312), which amended the original Code Section 2922, and repealed in part Section 1 of the Act of March 7, 1891 (Political Code, Sec. 4360), hence Missoula county was not entitled to elect an auditor in 1898.

      Appeal from District Court, Missoula County; Frank Woody, Judge.

    Maxda.mt's by the state, on the relation of -Tames McGinniss, against AY. II. II. Dickinson, clerk and recorder of Missoula county. Prom a. judgment for defendant, relator appeals.
    Affirmed.

      Messrs. Marshall, Stiff <(; Banff for Appellant.

      Mr. C. B. Nolan, Attorney General, for Respondent.
   MR. JrSTKTE PIGOTT

delivered the opinion of the court.

At an election held in Missoula county on November 8, 3898, the plaintiff received a majority of the votes cast for auditor of that county, and the board of canvassers so declared. The plaintiff then demanded of the defendant, the county clerk, a certificate of election. This the defendant, refused to issue, placing his refusal upon the ground that there was no such officer as count;.- auditor for Missoula county. Thereupon the plaintiff brought this proceeding in mandamus to compel the issuance of a certificate of his election. It. appeared that on the Ytli day of March, 1891,„ and for at least a year thereafter, the assessed valuation of the property in Missoula county exceeded eight million dollars, but that on September 6, 189Y, the board of county commissioners, by an order made under the authority of Sections 4328 and 4331 of the Political Code, declared Missoula county to be a county of the fifth class, having an assessed valuation of more than six million and less than eight million 'dollars; and that it still remained a county of the fifth class at the time this proceeding was begun. The parties agreed that if the county was entitled to an auditor for the two years beginning with the first Monday of January, 1899, the plaiutiff was entitled to a peremptory writ of mandate as prayed for. Judgment was entered for the defendant, and the plaintiff appeals.

IVas Missoula, county entitled to elect an auditor in 1898 ? This is the single question presented for decision, and we think it must be answered in the negative. The office of county auditor is not expressly provided for in the constitution; that instrument is silent upon the subject. (Section 5 of Article XVI.) If authority be requisite for the creation of the office, such authority may be found in Section 6 of Article. XVI, which ordains that “the legislative assembly may provide for the election or appointment of such other county * * * officers as public convenience may require and their terms of office shall be as prescribed by law * By an Act passed at the second session of the legislative assembly, and approved March Y, 1891, the office of county auditor was created, Sections 1 and 2 providing that “the office of county auditor is hereby created, and the same shall exist in all connties in the state of Montana wliicb now have, or those which may hereafter acquire1, a total assessment of not less than eight-million dollars There shall be elected in and for each county having the necessary assessable valuation as here-inbefore stated, at the general election to be held in November, 1892, and quadrenially [biennially]” thereafter, an auditor. (Laws of 3891, pp. 221, 228.) At the time this Act was passed, Missoula county had a total assessment of more than eight million dollars, and was, therefore, entitled to an auditor; and we assume for the purposes of this case (but do not decide) that the design of the Act was to require counties entitled to auditors on March 7, 1891, to elect them after the assessed valuation had fallen below eight million dollars.

That the legislative assembly, having created the office, had the authority to abolish it or to restrict it to counties of a certain class, must- be conceded. The office was and is subject to the control of its creator. Did the legislative assembly deprive Missoula county of the office of county auditor? At the fourth session of the legislative assembly of the state, held in 1895, the Political Code was acted upon by the legislature as it had been reported by the code commission. It was passed in tie form reported and as a whole, and was approved February 25, 1895. (Jobb v. County of Meagher, 20 Mont. 424, 51 Pac. 1034.) Section 2922 of the Code as originally passed reads: “The officers of a county are a treasurer, a county clerk, a clerk of the district court, a sheriff, a county attorney, a surveyor, a coroner, a public administrator, an assessor, a county superintendent of common schools, a board of county commissioners.” This section omits any reference to county auditor; but by Acts approved March 13, 1895, and incorporated in the Political Code as Sections 5181 to 5186, inclusive (Senate Bill 102 and House Bill 374, Laws of the Fourth Session, 1895), the Act of March I, 1891, which created the office of county auditor, and the Acts of the Third and Fourth sessions of the legislative assembly of the state of Montana, were declared to be and remain in full force and effect in like manner as if enacted after the adoption of the several Codes. (Sec. 5181; Sec. 1, Senate Bill 102.) The Act of March 7, 1891, appears as Sections 4560 to 4570, inclusive, of the Political Code as compiled by the commissioner in accordance with Title V of Part V of that Code (Act of March 7, 1895, Secs. 5190-5193). Section 5183, supra (House Bill 374, Sec. 1), provides that all Acts and parts of Acts enumerated in that Act “are, and the same are hereby declared to be, parts of the Political Code, * * *.” Among the Acts so enumerated is the Act of March 7, 1891, creating the office of county auditor. In so far as the Acts enumerated conflicted with or were inconsistent with any of the original provisions of the Code, the Acts or parts of Acts so> enumerated were to. be considered and construed as amendments to the Code with the provisions of which they conflicted or were inconsistent (Sec. 5184, supra; House Bill 374, Sec. 2). Hence the Act of March 7, 1891, must, in respect of the office of county auditor, be deemed an amendment to Section 2922, supra, of the original Code. But'on March 18, 1895, an Act entitled “An Act to amend Sections 2922, 2938, 2939, 2910, and 2941, of the Political Code of the state of Montana,” was approved, providing that “the officers of a county are: a treasurer; a county clerk; a clerk of the district court; a sheriff; a county auditor, except in the fourth, fifth, sixth, seventh, and eighth class counties; county attorney; surveyor; coroner; public administrator; assessor; county superintendent- of common schools; board of county commissioners.” (Sec. 4312, Political Code.) On the same day an Act was approved which classified the counties, and put into the third class all counties having an assessed valualion of more than ten and less than fifteen million dollars, and into the fifth class all counties having an assessed valuation of more than six and less than eight million dollars. (Sec. 4328, Political Code.) These Acts were passed by the Fourth legislative assembly. Sections 5181 and 5182, supra, are Sections 1 and 2 of the Act of March 13, 1895, Senate Bill 102. Sections 5183, 5184, 5185, and 5186, supra, are Sections 1, 2, 3, and 4 of the Act of March 13, 1895, House Bill 374, entitled “An Act dedaring wliat Acts or parts of Acts passed by tlie Second and Third legislative assemblies of the state of Montana, not embodied in the Political Code, the Code of Civil Procedure, the Civil Code and the Penal Code, shall continue in force, and repealing all other Acts or parts of Acts of the said legis-lativo assemblies, and declaring the construction to be placed upon the Acts of the Second, Third, and Fourth legislative assemblies, with reference to each other and with reference to the provisions of the Codes, and providing for the compilation of certain Acts of the Second and Third legislative assemblies, and die. Acts of the Fourth legislative assembly in the Codes.” .By Section 3 of the Act (House Bill 374), approved March 13, 1895 (the section being carried into’ the compiled Code, as Section 5185), it was provided that if any of the Acts or parts of Acts enumerated and declared by Section 4 (carried into the compiled Code as Section 5186) to be in full force and effect, “are in conflict with or are inconsistent with, any Act or Acts passed by the Fourth Legislative Assembly of the State of Montana, the Acts and parts of -Acts passed by the Fourth Legislative Assembly shall bo considered and construed as repealing such Acts or parts of Acts herein enumerated.” The Act of March 7, 1891, entitled: ‘An Act to create the Office of County Auditor,” is, as we have already observed, one of the Acts so enumerated and declared to be in effect. Now, the Act of March 18, 1895 (Section 4312, supra), was, we repeat, an Act of the Fourth Legislative Assembly. It prescribed that there should be a county auditor in all counties except in those of the fourth, fifth, sixth, seventh and eighth classes, thereby depriving of an auditor every county not having an assessed valuation in excess of ten million dollars. This Act of March 18, 1895, must be considered as having repealed so much of the Act of March 7, 1891, as was in conflict with its provisions. The office of county auditor in counties below the third class w7as certainly abolished by the Act of March 18, 1895, which amended the original Code Section 2922, supra, and repealed in paid Section 1 of the Act of March I, 1891 — Section 1 being Section 45G0, supra, of the Political Code.

It follows therefore that Missoula county was not entitled to elect an auditor in 1898, and that the judgment dismissing the proceeding in mandamus must be affirmed. It is so ordered.


author: MR. CHIEF JUSTICE BRAN TUN, MR. (TIIEF JUSTICE BRAXTLY

text:
    STATE ex rel. ANACONDA COPPER MINING COMPANY, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Defendants.
    (No. 1,759.)
    (Submitted January 10, 1902.
    Decided April 14, 1902.)

      Mines and Mining — Inspection and Survey of Claim — Interest Necessary — Equity Powers of Court — Order of Inspection —Jurisdiction—Stalutoiy Construction.

    1. To entitle one, under Code of Civil Procedure, Sec. 1817, to an inspection of a claim for 1lie purpose of ascertaining or enforcing his right or interest in another claim, he must have an interest in the first claim, and that the right of one owning a claim to follow a lode having its apes therein into another claim is not such an interest in the latter claim as to authorize his inspection and survey of it.
    2. Equity has no jurisdiction, independent of statute, and in the absence of a suit, to order inspection of property.
    -3. Under the authority in Code of Civil Procedure, Sec. 1317, to order inspection of a mine to ascertain and protect the interest of petitioner, all the appliances in use for ingress and egress may be made available for the persons making the inspection.
    4. Inspection should not be granted of a mine not described in the petition, under the authority in Code of Civil Procedure, Sec. 1817, for inspection and survey of a mine on petition.
    •5. The order authorized by Code of Civil Procedure, Sec. 1817, for inspection and survey of a mine for protection of petitioner’s interest therein or in another mine should be limited to the necessities of the case, and explicitly state how far it may go.
    6. Every word of a statute must be given a meaning, if it is possible to do so.
    7. The terms employed in a statute are presumed to be used in their ordinary sense, unless it is apparent from the context or from the subject-matter that they are used in a different or special sense.
    -8. Semble: The costs of obtaining the order under Section 1817, Code of Civil Procedure, as well as the costs of the survey and inspection, should be paid by the petitioner.
    0. In the order granted under Section 1317, Code of Civil Procedure, the court may provide that all appliances in use to facilitate ingress and egress be made available to the person making the inspection, — the additional expenses being paid by the petitioner.
    Wiut of certiorari on the relation of the Anaconda Copper Mining Company, against the district court of the Second judicial district in and for the county of Silver Bow and William' Clancy, judge Thereof, to review an order allowing inspection and survey of the underground workings of a mine.
    Order annulled.
    STATEMENT OF TILE CASE.
    On August 8, 1899, F. Augustus Iieinze filed in the district court of Silver Bow county the following petition:
    “Comes now F. Augustus Iieinze, and respectfully alleges and. shows to the court: That he is now, and for a long time prior hereto' has been, the lessee from the owners of an undivided one-half of +he Fairmount lode claim, situated in Summit Valley mining district, Silver Bow county, Montana, and lying adjacent to the Anaconda and St. Lawrence lode claims on the north, and entitled to become the purchaser of said portion of said Fairmount lode claim under and by virtue of an agreement from the owners thereof. That the Anaconda Copper Mining Company is in the possession of the Anaconda and St. Lawrence lode claims, and of all of the shafts and underground workings therein. (2) That, as petitioner is informed and believes-, certain underground workings have been made by said Anaconda Copper Mining Company into the Fairmount lode claim. That there are certain veins or ore bodies which have their tops or apices in the said Fairmount lode claim, but so far depart from a perpendicular in their downward course as to pass into the St. Lawrence and Anaconda lode claims beneath the surface thereof, and that as petitioner is informed and believes said Anaconda Copper Mining Company has been and is now engaged in extracting valuable ores from said Fair-mount lode claim and tlie veins and ores belonging thereto, and that certain of the underground workings made in and extending from the St. Lawrence and Anaconda lode claims are upon veins and ore bodies which belong to said Fairmount lode claim. (3) That the only means of access to said underground workings is through the shafts in said Anaconda and St. Lawrence lode claims in the possession of said Anaconda Copper Mining Company and the underground workings in said claims and extending tliei’efrom. That it is necessary for your petitioner to have a survey, examination, and inspection of all the shafts and underground workings in said Anaconda and St. Lawrence lode claims, and the underground workings extending therefrom or connected therewith, in order to ascertain, protect, and enforce his rights to the Fairmount lode claim, and to the veins and ore bodies belonging thereto1. (4) That on the- day of August, 1899, your petitioner served upon said Anaconda Copper Mining Company a demand and request in writing, of which ‘Exhibit A/ hereto attached, and hereof made apart, is a copy, but that said Anaconda Copper Mining Company has failed and refused for more than three days since the service of said demand and request upon it to grant the-same, or to permit your petitioner to have the survey, examination and inspection therein requested. (5) That, as y-our petitioner is informed and believes, it will be necessary for him to have access to said shafts and underground workings in the said Anaconda and St. Lawrence lode claims by at least six (6) persons for a period of sixty (GO) days, in order to make a proper and thorough survey, examination and inspection of the same. Wherefore he prays an order of this court or1 the judge thereof requiring said Anaconda Copper Mining, Company to appear and show cause why an order for survey, examination and inspection of said Anaconda and St. Lawrence lode claims, and of all the shafts and taiderground workings therein contained, should not be granted to him in accordance with the allegations of this petition/’
    The notice referred to in the petition as “Exhibit A” contains a demand that the Anaconda Copper Mining Company, designated in the proceeding as defendant, permit the petitioner, with engineers, surveyors^ and attorneys, to enter all the underground working’s of both the claims mentioned in the petition as in the possession-of the defendant, for a period of thirty days, to inspect and survey them.
    In default of a compliance with the demand in three days, the defendant was notified that an application would be made to the district court for an order permitting the desired inspection and survey to be made. The demand having been disregarded, the petition was filed, and an order made requiring the defendant to show cause why an order should not be made permitting the inspection and survey. On September 2, 1899, —tire time fixed for that purpose, — a hearing was had, and the matter submitted to the court. On December 7, 1901, the court, having had the application under consideration until that time, made the following order:
    ‘‘This matter coming on to be heard upon the petition herein for an order of survey, examination, and inspection of all of the shafts and underground workings in the Anaconda and St. Lawrence lode claims, or connected therewith, and an order to show causo having heretofore been issued and duly served upon said company, and said respondent appearing by counsel, and said petition having been duly heard and considered upon the return of said order to show cause upon evidence introduced by both parties, the court finds that it is necessary that the petitioner have a survey and inspection. It is therefore ordered that, you, the said Anaconda Copper Mining Company, give to F. Augustus Ileinze a survey, examination, and inspection of all of the shafts and underground workings contained within the Anaconda and St. Lawrence lode claims, situated in Summit VaLey mining district Silver Bow county, Montana, and of all of the underground workings connected therewith, and extending into the Fairmount and Mountain View lode claims. It is ordered that George W. Towner, J. H. Trerise, G. H. Bobinson, Brice N. Turner, Alfred Frank, and A. L. Stadler make such survey, examination, and inspection, commencing on the llth day of December, and ending on the 22d day of December, 1901, and that yon, the said Anaconda Copper Mining Company, at all times during said period, upon the demand of said persons, or either of them, lower and hoist them through said shafts, and permit them to enter said underground workings; that yon remove all bulkheads and obstructions which may be necessary to have removed to permit said survey, examination, and inspection. Said survey, examination, and inspection shall be made in such manner as to1 cause as little inconvenience as possible to the Anaconda Copper Mining Company, and said F. Augustus Heinze shall be responsible to it for all damage done in making said survey, examination, and’ inspection. A copy of this order shall be sufficient notice to said Anaconda Copper Mining Company, its agents, servants, officers, and employes, of the right cf said F. Augustus Heinze and the persons named in this order to make said survey, examination, and inspection, and to enter the premises herein described for such purpose.”
    On December 9, 1901, the relator made application to the district court for an order modifying the foregoing order, and restricting the extent of the examination, inspection, and survey allowed by it; but the application was denied. Thereafter, on December 17, the relator filed another application in the proceeding, asking the court to vacate and set aside the order entirely, upon the ground that since the date of the hearing upon the original application the petitioner, F. Augustus Heinze, had transferred and conveyed all interest he then had in the Fairmount lode mining claim, and had no further interest therein. This application was also denied. Thereupon, on January 2, 1902, the Anaconda Copper Mining Company filed its petition in this court for a writ of supervisory control, or such other writ as, in the opinion of this court, might be effective to grant the relief from the order so made, alleging that the application to' the district court for the order was not in good faith, that it was in excess of jurisdiction, and made, for the purpose of harassing and annoying the relator. Upon the filing of the petition this court issued air order to the district court and AYilliam Clancy, the judge thereof, requiring cause to he shown why the order should not be annulled as prayed. Thereafter, on March 15, a writ of certiorari iras issued from this court direedng that the district court and its judge certify up the record of the proceedings liad, to the end that the same might he reviewed.

      Mr. lh. Ur. Dixon, Mr. A. J. Shores, Mr. (./. F. Kelly, and Mr. 1). Gay Stivers, for Relator.

      Messrs. McIIatton cG Cotter, for Defendants.
   MR. CHIEF JUSTICE BRAN TUN,

after stating the case, delivered the opinion of the court.

The order complained of was made under and by virtue of the power which, it is asserted, is vested in the district court, or a judge tliei’eof, by Section 1317 of the Code of Civil Procedure. It was contended by the petitioner in the court below and the same contention is made by the defendants in this court, that this section authorizes the court, or its judge, to require the owner of any mine to permit his neighbor, upon a showing that such owner is or has been engaged in mining and. extracting ores which may belong to the latter, or which he claims by virtue of his extralateral rights, to enter into the-workings made by such owner in his own premises, and to make such examination, inspection, and survey as may, in the judgment of the court, or its judge, be necessary to enable the petitioner to ascertain, enforce, or protect his rights. The contention is also made that, even if the statute does not, in terms, authorize an order granting permission to inspect and survey adjoining property owned exclusively by another proprietor, yet the court, by virtue of its inherent power as a court of equity, is authorized to grant such an order with reference to any adjoining or neighboring property or premises through which, trespasses may be committed on the property of the petitioner ; and that, too, without regard to whether the court has jurisdiction over the property or the parties by virtue of the pendency of a suit in which the parties are seeking an adjustment of their rights. On the other hand, the relator contends that this character of proceeding is statutory; that, independently of a suit involving the rights of the parties to the particular property, the court, or its judge, has no power in the premises other than that conferred in terms by the statute; and that by the express terms of the statute the power of the court or its judge is to be tested by the interest or ownership exhibited by the petitioner in the property of which the inspection is sought or through which entry for that purpose is necessary. In other words, it is said that, in order to bring himself within the purview of the statute, the petitioner must show some sort of proprietary interest in the premises which are in the possession of his adversary, and into or through which he desires to enter for inspection.

1. What power is conferred by the statute? The section in question reads as follows: “Whenever any person shall have any right to or interest in any lead, lode, or mining claim which is in the possession of another person, and it shall be necessary for the ascertainment, enfoi’cement or protection of such right or interest that an inspection, examination or survey of such lead, mine, lode or mining claim should be had or made; or whenever any inspection, examination or survey of any such lode or mining claim shall be necessary to protect, ascertain or enforce the right, or interest of any person in another mine, lode or mining claim, and thei person in possession of the same shall refuse, for a period of three days after demand therefor in writing, to allow such inspection, examination or survey to be had or made, the party so desiring the same may present to the district could, or a judge tlierof, of the county wherein the mine, lead, lode or mining claim is situated, a petition, under oath, setting out his interest in the premises, describing the same, that the premises are in the possession of a party, naming him, tlio reason why such examination, inspection or survey is necessary, the demand made on the person in possession so to permit such examination, inspection or survey, and his refusal so to do. The court or judge shall thereupon appoint a time and pdacc for hearing such petition, and shall order notice thereof to be served up>on the adverse paarty, which notice shall be served at least one day before the day of hearing. Oar the hearing either party may read affidavits or produce oral testimony, and if the coaai’t or judge is satisfied that the facts stated in the petition are true, he shall make an order for an inspection, examination or survey of the lode or mining claim in question in such manner, at such time, aird by such persons as ai’o mentioned in the order. Such person shall thereupon have free access to such miare, lead, lode or mining claim for the paaaa*pose of making saach iaaspaectioaa, exaaaaiaaation or sarrvey, and any interference with such person while acting under saach order shall be contempt of corral. If the order of the coua*t is made while an action is pendirrg between the parties to the oa’der, the costs of obtaiaaing the order shall abide the resarlt of the action, brat all costs of making sarcia exaaaaiaaation or sarrvey shall be paid by the petitioner.” (Sectioaa 1317, Code of Civil Procedure.) So far as we are awar’e, the parovisioars eaaabodied iaa this sectioaa are paecaaliar to orar owaa jaaa’isdiction. AVe find that the sectioaa was eraacted by the territorial legislataare of 1881 (Acts 12th Bess. pa. 10) as ara aanendaaaent to the Code of Civil Procedua’e of 1879, and that, it has been iarcorporated iaa all the revisioars of this Code since that time. The eoarstitutionality of it was called ira qaaestioaa iaa St. Louis Min. & Mill. Co. v. Montana Co., 9 Mont. 288, 23 Pac. 510, and in the saure case on error to the sarpareme court of the United States, 152 U. S. 160 (14 Sup. Ct. 506, 38 L. Ed. 398), brat the extent of the power of the coaaa’t under it has arever been considered or determined. It is asserted by counsel for the defendants that the relative situation of the parlies and the ownership of the property involved iaa that case were the same as in the present case, and that the im-palied constraaction then giveaa the section by this coaart is the same, as that which they now contend for, and is of binding authority. The only questions presented in the briefs of counsel in that case, and the only ones considered and determined, are found stated in the opinion of this court at page 300 (9 Mont. page 512, 23 Pac.). They are restated in 152 U. S. at page 165 (14 Sup. Ct. 507, 38 L. Ed. 398), and were the only questions considered by the supreme court of the United States. These have to do with certain features of the legislation, which, it was alleged, rendered it obnoxious to the provisions of the state and federal constitutions prohibiting the deprivation of property without due process of law. It was held to be constitutional, as not violative of these constitutional prohibitions; hut the relative situation and ownership of the property to which its terms apply were not considered, counsel having conceded (9 Mont. 299, 23 Pac. 512) that the order was properly made if the section was not open to the constitutional objection urged ag’ainst it. Where a suit is pending involving the rights of the parties to the particular property, the court proceeds under Sections 1314 and 1315 of the Code of Civil Procedure, and under them the inspection may be made rmt--withstanding it involves a temporary occupancy of other property than that in controversy. These sections are but declaratory of the inherent power of courts of equity (perhaps, also> of courts of law), and rest upon the principle that the parties should be enabled to put the court in possession of all the facts touching the controversy, to the end that their rights may be properly adjudicated. (State ex rel. Anaconda Copper Mining Co. v. District Court of Second Judicial Dist. of Silver Bow Co., 25 Mont. 504; 65 Pac. 1020; Montana Co. v. St. Louis Min. & Mill. Co., 152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398.) The power of the court under these sections is limited only by the necessities of the pending action.

As to Section 1317, we are aware of no case in which the extent of its application has been considered, and the question of its proper construction is now presented for the first time. We must, therefore, refer to the statute itself, and determine from tho terms employed in it wliat circumstances are necessary to put the power of the court in motion.

Passing, for the present, the character of the interest necessary to be exhibited by the petitioner, and assuming that an exhibition of -any interest, though a disputed one, is sufficient, it seems clear iliat the inspection must be limited to premises in which the petitioner has some sort of proprietary interest. The purpose of the inspection is twofold, namely: (1) To ascertain whether the right or interest of the petitioner in the property in possession of the adverse party is being injured; and (2) to ascertain by inspection of such premises whether the right or interest of the petitioner in other premises is being' injured. The first clause of the statute applies to “any lead, lode or mining claim” in the possession of another, in which the petitioner has an interest. It has reference to a property right in the very premises sought to be inspected, and proceeds upon the just theory that an obligation rests upon the party in possession to permit tho inspection upon a proper demand for permission to make it. The purpose served is to ascertain the rights of the party not in possession, and to furnish him with the facts necessary to enable him to protect his interests, if they need protection.

The second designation of property with reference to which the order may be matte is expressed in the words: “Or whenever any inspection * * * of any such lode or mining claim shall be necessary to protect, ascertain or enforce the right or interest of any person in another mine, lode or mining-claim, and tho person in possession of the same shall refuse,” etc. The words “any such lode or mining claim” clearly relate to the same character of lode or mining claim as that mentioned in the first clause; that is, one in which the petitioner has an interest, and which is in the possession of another. The word “'such” in its ordinary sense, in the connection in which it is here used, signifies “tho same as previously mentioned or specified ; not other or different.” (Century Dictionary.) In this sense it is used with reference to some antecedent word or phrase, and signifies that the word or phrase of which it is made an attributive — as, in this instance, “lode or mining claim” — is to be understood as indicating something of the same, class or in the same situation as the one- already described, and to which it refers. In this sense it must be used here, else it must be considered as without any signification, and the phrase “any such lode or mining claim' should otherwise be read “any lode, or mining claim/' This disposition of the word would give, the phrase the meaning contended for by the de¡-fendants, but would do violence to the elementaray rule of construction that, every word of a statute must be given a meaning, if it is possible to do so. Another rule equally applicable in this connection is that the terms employed in a statute are presumed to he used in their ordinary sense, unless it is apparent from the context or from the subject-matter1 that they are used in a, different or special sense. That the word “such" is not used in any special sense here is manifest from the context, in which it is several times used with reference to other previously described objects, but always in the same sense. The conclusion that the meaning we have given it is the proper one is further strengthened by a consideration of the matters which must be set forth in the petition. The petitioner must, state his interest in the premises which he desires to inspect. lie must describe the same. Ho must state that the premises are in the possession of a party, naming him. He must state the reason why the inspection is necessary, and that demand has been made upon tiie party in possession. He must set forth an interest in the premises to be inspected; whether the purpose is to ascertain, protect or enforce his interest in the particular property, or an interest, owned by him in an adjoining property. The use of the word “premises" indicates that the interest owned or claimed must be such an interest as is the subject of a conveyance,— such as an interest by tenancy in common, leasehold, reversion, or other interest of like character. The asserted right to enter within the vertical planes of the boundaries of the property from an adjoining claim — ^as in this case from the Fairmount claim into tlie Anaconda and St. Lawrence — is not sucb an interest as wonkl meet the requirement, for such an interest would not pass by virtue of a conveyance of either of the latter claims. These extralateral rights, if they exist at all, constitute an interest in the Fainnount claim. They can only be described as such, having been obtained by a grant of that claim by the patent, and are conveyable only by virtue of the estate owned in that claim.

It is to be observed, further, that the petition need not charge the adverse party with a wrongful possession. The only wrong to! be charged is the refusal to permit the inspection. This feature also very strongly implies that the whole basis of the proceeding is some interest or ownership in the property itself which is a subject of conveyance, and supports the contention of the relator 'hat the legislature manifestly did not intend that, one person should be allowed by a summary proceeding to invade the property of another, and make inspection of it, merely because such an inspection might benefit the applicant. In any event, if it was intended by the act to accord to an owner cf a mining claim or lode the right, upon demand, to enter upon and inspect property in the possession of his neighbor, and belonging exclusively to him, with a view to determine whether the latter is committing a trespass, the legislature failed to use terms suitable to express such intention. “Every citizen holds his property subject to the power of the state to prescribo reasonable regulations for the protection of the property and rights of others.” (State ex rel. Anaconda Copper Mining Co. v. District Court of Second Judicial Dist., 25 Mont. 504, 65 Pac. 1020.) Put, beyond sustaining the reasonable burdens thus imposed upon him, he is not required to submit to any invasion of his property or possessions; and no court or judge has the power to. interfere with him in the enjoyment of his property, except so far as such interference may he warranted by the inherent power of the court or by express legislative sanction, and then only in the interest of justice.

It does not appear that, the petitioner has any interest in the Anaconda and St. Lawrence claims. The basis of his asserted right to enter the relator’s shafts, drifts, and other workings in these claims is the supposed existence of extralateral rights upon a vein the apex of which is within the boundaries of the Fairmount claim. Tinder the construction Ave have given the statute, — and, in our opinion, it is the only construction of Avhich it is fairly susceptible, — the exhibition of this right- is not- sufficient to give the court, or its judge;, jurisdiction to make the order.

Counsel for defendant suggest that, unless this be declared a sufficient, showing of interest to Avarrant the order, one owner may trespass Avith impunity upon another, while the latter is left Avithout the means of discovering the fact and extent of the Avrong done him. So far as concerns the right of inspection, Avhen no suit is pending in cases in Avhich the property is in the situation presented in this case, the suggestion seeing to he pertinent; but the necessity for a remedy, if there be such a necessity, is a matter Avhich should be submitted to the consideration of the legislature. It is an exclusive function of that department of the government to furnish the extraordinary summary remedy aaTiícIi the circumstances of this and like cases demand. The petitioner is not remediless, however. If he has information, as he alleges, that trespasses are being committed upon his property, the Avay is open to him to- invoke the pre-ATentive poAver of the court in an ordinary action, Avliereupon its authority to assist him to ascertain the facts necessary to full relief Avill be limited only by the necessities of the case.

2. We do not understand upon Avha.t theory the defendar.es assert that a court of equity has inherent poAver, independently of a pending .action, in Avhich it has jurisdiction of the parties and the properry in controversy, to make the order under consideration. There is nothing in the petition Avhich invokes any of the ordinary po-Avers of a court of equity; nor has our attention been called to any case Avherein any court, in the absence of statutory authority, Avhen no suit Avas pending between the parties, has assumed, in a summary Avay, to adjudicate per.sonal or property rights. There are many eases reported in which inspection orders have been made, but in none of them do we find the courts assuming the power to make them except in aid of the rights of the parties, which were being adjudicated in the ordinary way. Even in such cases the power is used with caution, and only when it is apparent that its exercise is necessary to serve the ends of justice. Among such cases are the following, being all the American and English cases which wo have been able to examine: Earl of Lonsdale v. Curwen, 3 Bligh, 168; Walker v. Fletcher, Id. 172; United Co. v. Kynaston, Id. 153 ; Blakesley v. Whieldon, 1 Hare, 176; Lewis v. Marsh. 8 Hare, 97; Bennitt v. Whitehouse, 28 Beav. 119; Bennett v. Griffiths, 30 Law J. Q. B. 98; Whaley v. Brancker, 10 Law T. (N. S.) 155; Thomas Iron Co. v. Allentown Min. Co., 28 N. J. Eq. 77; Thornburg v. Savage Min. Co., 1 Pac. Law Mag. 267; Slockbridge Iron Co. v. Cone Iron Works, 102 Mass. 80; Duggan v. Davey, 4 Dak. 110, 26 N. W. 887. Most of these cases are also reported in volumes 7 (pages 667-096) and S (pages 1-41) of Morrison’s Mining Reports. There are doubtless other cases in point, but the foregoing are sufficient to sustain the general proposition stated that courts do not assume to adjudicate, the rights of parties in a summary proceeding without express statutory authority; and in no case do they authorize entry upon the property of parties over whom they have acquired jurisdiction, except when the necessity of the case demands it in the interest of justice. The case of Thomas Iron Co. v. Allentown Min. Co., supra, woirld seem, upon a casual reading, to support the contention of defendants, but a careful examination of it shows it to have- been a proceeding in equity for injunction to restrain the defendants from preventing the complainant from entering a shaft sunk upon its own property and the. workings connected therewith to discover the extent of a trespass committed by defendants, and also for an accounting of ores extracted. Another purpose of the action was to prevent, the defendants from destroying the supports left in the mine, thus allowing the surface to cave in and fill the excavations, and also1 by this means to flood thorn with surface water, thus destroying the evidence of the1 trespass. The inspection was allowed under the injunction. Thus it appears that the power of the court was exercised by virtue of its ordinary equity jurisdiction by injunction, upon allegation of facts properly invoking it. It also appears that the question was whether the court should permit the complainant to enter through its own property.

3. Speaking generally, and in order to* dispose of suggestions .made during the argument of counsel, the last provision of the statute oeems to require the costs of the survey and inspection, as well as of obtaining the order, to be paid by the petitioner. The only burden cast upon the adverse party would seem to be to grant free access to the property. The authority to make the order in a particular case would necessarily carry with it also authority to make the order effective, so that all the appliances in use to facilitate ingress and egress should be made available to the persons making the inspection, the additional expense being paid by the petitioner. The order should provide for contingencies of this character. At the same time the court should not, as in this instance, grant an inspection of, or permission to enter upon, property not mentioned in the petition. The Mountain View claim is mentioned in the order. It does not appear, however, who is the owner of it. It is not described in the petition. The court would, under no circumstances, have authority to invade the rights of persons not parties to the suit or proceeding. The order should not have included this claim.

The order is also subject to criticism in that it does, not limit in any way tlia discretion of petitioner’s agents as to the extent of the inspection. They are given unlimited discretion to inspect any -workings in the Anaconda and St. Lawrence claims, or any connected with them in any direction. The order should be limited to the necessities of the case, and explicitly direct the extent to which the inspection and survey should go.

Much ivas said in argument by counsel as to whether the right or interest claimed by the petitioner in a proceeding’ under this statute must be an undisputed one. We would not undertake to go further a-t this time than to say that under the first clause of the statute the petitioner must exhibit at least a substantial prima facie interest, which it is necessary for him to protect or enforce. Under the second clause the necessity to show an interest both in the premises to be inspected and in the property to be protected would be pleasured by the same rule.

(Submitted May 26, 1902. Decided June 2, 1902.)

The order of the district court was-wholly in excess of jurisdiction, and is therefore annulled.

Annulled.

Os MOTION FOR KeIIEARING.

(Nos. 1,759 and 1,775.)

MR. (TIIEF JUSTICE BRAXTLY

delivered the opinion of tho court.

Counsel for defendants have submitted motions for a rehearing of these causes, with elaborate briefs in support of them. They contend that the court rested its decision of the question involved upon a view of the statute which was not discussed either in the oral argument or briefs submitted at the hearing. They say that it did not occur to them that any special significance was to- be given to the phrase “any such lode or mining claim,” and that they did not deem it necessary in their argument and briefs to discuss it.

While it is mío that the briefs upon which the argument was made at the hearing contained 1101 direct reference to the meaning of this expression, yet, owing to the importance of' tbe question involved, and following, suggestions made by questions put by different members of tbe court during tbe course of tbe argument, counsel on both sides asked and obtained leave to file supplemental briefs devoted to a discussion of tlie proper construction to ho given to tbe statute and tbe extent of tbe powers conferred by it. In these briefs -botb sides dwell at some length upon tbe meaning of the phrase “any such lode or mining claim” and its significance, in view of tbe matters which are required to be set forth in the petition for an inspection order. We have re-examined carefully all these briefs, together with the briefs submitted on these motions. These latter contain no suggestion which was not given full consideration in the preparation of the original opinion. We are of the opinion, after such re-examination of the question involved, that a rehearing would not result in a different conclusion. Tbe motions are therefore denied.

Denied.


author: AIR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. ANACONDA COPPER MINING COMPANY, Relator, v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.
    (No. 1,775.)
    (Submitted February 14, 1002.
    Decided April 15, 1902.)
    For syllabus see State cm rel Anaconda Copper Mining Co. v. District Court ct al.j ante page 390.

      Certiorari by the state, on the relation of the Anaconda Copper Mining Company, against the district court of the Second judicial district, and tbe Hon. William Clancy, -judga thereof, to review an order made by the court.
    Order annulled.

      Mr. W. W. Dixon, Mr. A. J. Shores, Mr. 0. IP. Kelly, and Mr. D. day Stivers, for Relator.

      Mr. IT. (J. Jones, for Respondents.
   AIR. CHIEF JUSTICE BRANTLY

delivered the opinion of tlie court.

On January 21, 1902, there being no suit pending- between the parties involving their respective claims or either of them, E. Augustus Ileinze filed his petition in the district court 'of Silver Bow county, asking for an order under Section 1317 of the Code of Civil Procedure, permitting him to enter into the workings in the Anaconda and St. Lawrence claims, in the possession of relator, and to inspect and survey the same in order to determine whether the relator was committing a trespass upon the Belmont Claim, in possession of petitioner and lying to the south. The petition alleged, upon information and belief, that relator, by means of underground workings, had entered beneath the Belmont claim and was engaged in extracting ore belonging to petitioner. It was also alleged that permission to enter and male© the inspection and survey had been refused by relator after demand made in conformity to the statute. A hearing ivas had under an order to show cause, which resulted in an order permitting the inspection and survey to be made. Thereupon the relator applied to this court for relief from the order, alleging that the district court had no jurisdiction to make the same. After a hearing upon the application, this court issued a writ of certiorari directing that the proceedings had be certified to this court for review.

The questions presented in this case are in all respects the saíne as those presented in Stale ex rel. Anaconda Copper Mining Co. v. District Court (ante, 396, 68 Pac. 570), this day decided. The situation of the claims of the parties is the same. The petitioner, by the statements contained in his petition, sliows that he has no interest in the premises in possession of' relator through which entry is sought to be made. Upon the authorityof State ex rel. Anaconda Copper Mining Co. v. District Court, supra, the court was wholly without jurisdiction to make the order. It is therefore annulled.

Annulled.

Motion for rehearing denied, June 2, 1902.

[For opinion on motion for rehearing, see ante, 411.]