text:
    HILL, Respondent, v. CASSIDY, Appellant.
    [No. 1307.]
    [Submitted April 11, 1900.
    Decided April 16, 1900.]
    Appeal— Undertaking on Appeal — Insufficiency—Dismissal. of Appeal — New Bond — Failure to File — Excusable Neglect — Mechanics' liens — Attorney's Fees.

    1. Code of Civil Procedure, Section 1725, declares that an undertaking on appeal shall be to the effect that appellant shall pay all damages and costs awarded against him on the appeal, or a dismissal thereof; Section 1726 requires a distinct undertaking to secure a stay of execution pending appeal; and Section 1731 authorizes the two undertakings to be executed in the same instrument, at appellant’s option. Held, that where appellant’s undertaking on appeal omitted the alternative condition for a dismissal of the appeal, it was insufficient, and the defect could not be cured by inserting such provision in that part of the undertaking providing for a stay of execution.
    2. Code of Civil Procedure, Section 1740, declares that no appeal shall be dismissed for insufficiency of the undertaking, if a sufficient undertaking, approved by a justice of the supreme court, he filed before the hearing of the motion to dismiss. Held, tliat where appellant'failed to file a new undertaking, she could not prevent a dismissal of the appeal on the ground of excusable neglect, on her affidavit that she had no notice of the motion to dismiss the appeal, and that of her attorney that he notified a appellant’s husband that she should procure a new undertaking, and, because of the husband’s promise to inform her, the attorney made no further effort in the matter.
    3. Though counsel for respondent on dismissal of an appeal of a suit to foreclose a mechanic’s lien is entitled to a reasonable fee for his services in the appellate court by Code of Civil Procedure, Section 1863, such fees must be fixed and allowed by the » district court on the return of remittitur.

      Appeal from District Court, Silver Bow County.

    Action by James Gr. Hill against Charlotte Cassidy. Judgment for plaintiff. Defendant appeals. Dismissed. Motion for rehearing.
    Motion denied.

      Messrs. Harney c& Merritt, for Appellant.

      Mr. J. E. Healy, for Despondent.
   PER CURIAM.

On March 27th of this year, on motion of the respondent, an order was made dismissing the appeal herein because of the insufficiency of the undertaking. We are now asked to grant a rehearing upon this motion, on two grounds: (1) Thát the undertaking is sufficient under the statute, — a fact, the appellant insists, the Court overlooked, by failing to consider all the conditions of the instrument; and (2) that the failure on the part of the appellant to tender and file a sufficient undertaking before the motion to dismiss, was submitted was due to excusable neglect.

The undertaking, a copy of- which was presented with the motion to dismiss, is as follows:

“Whereas, Charlotte Cassidy, one of the defendants in the above-entitled action, hereby appeals to the Supreme Court of the state of Montana from a judgment made and entered against her in said action, in the above-entitled court, in fav- or of the plaintiff therein, on the 18th day of June, 1898, for thirty-seven and thirty one-hundredths' ($37.. 30) dollars, for fifty ($50.00) dollars attorney fee, and for fourteen and ten one-hundredths ($11.10) dollars: Now, therefore, in consideration of the premises and of such appeal, we, the undersigned, freeholders of the said county of Silver Bow, state of Montana, do hereby jointly and severally undertake and promise, on the part of the appellant, that the said appellant will pay all damages and costs which may be awarded against her on the appeal, not exceeding three hundred (§300.00) dollars, to which amount we acknowledge ourselves jointly and severally bound. And whereas, the appellant is desirous of staying the execution of said judgment so appealed from, we do further, in consideration thereof and of the premises, jointly and severally undertake and promise, and do acknowledge ourselves jointly and severally bound in the further sum of two hundred and three (§203.00) dollars, being double the amount named in said judgment, that if the said judgment appealed from, or any part thereof, be affirmed, or the appeal be dismissed, the appellant shall pay the amount directed to be paid thereby, or the part of such amount as to which the same shall be affirmed, if affirmed only in part, and all damages and costs which shall be awarded against the appellant upon the appeal, and that, if the appellant does not make such payment within thirty days after the filing of this remittitur from the Supreme Court in the court from which the appeal is taken, judgment m% be entered, on motion of respondent, in his favor, against the said sureties, for such amount, together with the interest that may be due thereon, and the damages and costs that may be awarded against the appellant upon the appeal therein.”

Section 1725 of the Code of Civil Procedure prescribes the requirements of an undertaking on appeal, and Section 1724 declares that £ ‘the appeal is ineffectual for any purpose’ ’ unless these requirements are observed. Section 1726 provides for another distinct undertaking in order to secure a stay of execution pending the appeal. The two undertakings ‘ ‘may be in one instrument or several, at the option of the appellant.” (Id. Sec. 1731.) It will be observed that the appellant herein has attempted to avail herself of the provision of this latter section by including both undertakings in the same instrument. In that part of the instrument intended to secure the appeal, the alternative condition, ‘ ‘or on a dismissal thereof, ’ ’ is omitted. It is conceded that, if this part of the instrument stood alone, it would be insufficient to secure the appeal; but it is argued that, inasmuch as the latter part of the instrument contains this omitted condition and all the other conditions necessary to be contained in the undertaking on appeal, this defect in the former part of the instrument is cured. We do not think this argument well founded. One undertaking in the sum of §300 is required to secure the appeal. The other must be in double the amount of the judgment in order to stay the execution. The fact that the legislature has prescribed that the latter shall contain all the conditions required to be contained in the former is no valid reason why the appellant should be excused from securing the appeal as the statute provides. The former has one purpose in view, viz: to secure the appeal; and this purpose is not accomplished unless it meets all prescribed requirements. The latter must contain all the necessary conditions, or the stay will not be effectuated. Standing as seperate instruments, each must be judged by its own terms. The conditions of one cannot be considered as the conditions of the other. The incorporation of both in the same instrument does not render their purposes any less diverse, nor does it make one a part of the other, either by way of addition to, or qualification of, its terms. To hold otherwise would be to say that the “legislature intended that an undertaking required for a declared purpose should operate to accomplish a different purpose, — and that, when it is expressly declared that it shall have no such effect. ” (Duffy v. Greenebaum, 72 Cal. 157, 12 Pac. 74, 13 Pac. 323.) Sections 1725 and 1726, supra, are identical with Sections 941 and 942 of the Code of Civil Procedure of California. In construing these sections the supreme court of that state, in the case cited, expressly holds that a compliance with Section 942 is in no sense a compliance with the requirements of Section 941, so as to secure an appeal where the undertaking required by the latter has not been given. In the later case of Duncan v. Times-Mirror Co., 109 Cal. 602, 42 Pac. 147, decided after the adoption of our Code in 1895, an undertaking identical with the one under consideration was held to be insufficient, for the reasons already stated; the court citing with approval Duffy v. Greenebaum, supra. Other reasons are also stated, by way of argument and illustration, as explanatory of these provisions of the Code; but, whatever may be the purpose had in view by the legislature in enacting them, they are clear and explicit in their requirements, and must be observed.

Section 1740 of the Code of Civil Procedure provides that “no appeal can be dismissed for insufficiency of the undertaking thereon, if a good and sufficient undertaking, approved by a justice of the supreme court, be filed in the supreme court before the hearing upon the motion to dismiss the appeal. ’ ’ Construing this section, the Supreme Court of California (Duncan v. Times-Mirror Co., supra) holds it to be a limitation upon the discretion of the court, denying it the authority to permit an amended undertaking to be filed after the motion-to dismiss the appeal has been submitted. Judged by this construction of the statute, the appellant cannot now be heard to say that her failure to tender a sufficient undertaking before or at the hearing of the original motion was excusable neglect, no matter how strong her showing may be. The record contains the proof of notice to her attorney, and under the rule of this Court she was allowed ten days in which to comply with the statute, or to ask for sufficient time to enable her to do so. Reserving a decision of this question, however, and assuming for the purpose of this motion that this Court has the power, notwithstanding, the provision of the statute, to grant relief upon a meritorious showing, the showing made by appellant has no merit whatever. She has filed an affidavit stating that she had no notice of the motion to dismiss her appeal. Her attorney has also filed an affidavit in which he states that, after he received notice of the motion, he notified the husband of the appellant that she should procure a new undertaking, and that, as the husband promised to inform the appellant, affiant made no further effort in the matter whatever. No undertaking is tendered with the present motion. The showing reveals inexcusable neglect.

Counsel for respondent, in his motion to dismiss the appeal, asked that this Court allow him a reasonable attorney’s fee for his services in connection with the appeal, basing his claim upon Section 1863 of the Code of Civil Procedure. He now insists that the order of dismissal be amended so as to include such fee. This suit being one to foreclose a mechanic’s lien, counsel may be entitled to a reasonable fee for his services in this Court, but it must be fixed and allowed by the district court upon the return of remittitur from this Court. (Schallert, etc. Lumber Co. v. Neal, 94 Cal. 192, 29 Pac. 622; Williams v. Gaston (Cal.), 60 Pac. 427.)

The motion for rehearing is denied. Denied.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    BAKER, Respondent, v. BUTTE CITY WATER CO., Appellant.
    [No. 1,503.]
    [Decided April 18, 1900.]

      Appeal and Error — Appeal Bond — Sufficiency—Motion to Dismiss — l( Communis Error Facit Jus” — Defecti/oe Bond Reinstatement — Wew Bond.

    1. A single bond on appeal from a final judgment and from an order denying a new trial, conditioned to be void if appellant paid all damages and costs awarded against it on such appeals, or a dismissal thereof, is insufficient.
    2. Where a motion to dismiss an appeal has been made, for insufficiency of the appeal bond, the maxim, “Communis error facit jus,” does not apply, because a great many appeals during the past have been secured by undertakings equally as defective.
    3. Code of Civil Procedure, Sec. 1740, provides that an appeal may be dismissed if the appellant fails to furnish the requisite papers; and, where a motion to dismiss for failure to file sufficient bond on appeal has been submitted, the court cannot permit the filing of a sufficient bond, and reinstatement of the appeal thereby.

      On Motion for Rehearing.

      Denied.

    For former opinion, see ante, p. 31.

      Mr. Wm. LL. De Witt and Mr. T. Bailey Lee, for Appellant.

      Mr. J. E. Mealy, for Respondent.
   PER CURIAM.

— The appellant asks us to reconsider the order dismissing the appeal herein, made and entered on March 19th. (Ante, p. 31, 60 Pac. 488.) Counsel makes the contention that the appeals from a judgment and an order denying a new trial, taken at the same time, are, in the nature of things, so intimately connected that the one must follow the ocher, whatever be the action of the appellate court. Upon this assumption he bases his claim that the undertaking under consideration is sufficient, because it meets all the contingencies that can possibly arise. If the judgment be affirmed, he says, the order denying a new trial must be affirmed. An instance cannot be imagined where the judgment is affirmed, and a new trial granted. On the other hand, a reversal of one reverses the other. Conceding this argument to be correct so far as it goes, counsel overlooks the alternative of dismissal. If one appeal is dismissed, does it follow, also, that the other is dismissed? If the appeals are taken at different times, the appellate court may pass upon them at different times; and, though the ultimate result may be the same, yet the costs incident to each must follow the action of the court upon each, without reference to the effect such action may have upon the other in the subsequent proceedings in the trial court. When the appeals are taken at the same time, the action of the appellate court thereon may be such that the costs are adjudged separately. If, for instance, the time within which the appeal from the judgment may be taken has expired before the appeal is perfected, the appeal from the judgment will be dismissed, though the order be considered on its merits. This was done in Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447. Again, the appeal from the order denying a new trial may be dismissed, and the appeal from the judgment be decided upon its merits, as was the case in McLeod v. Dickenson, 11 Mont. 438, 28 Pac. 551, in Grinnell v. Davis, 20 Mont. 222, 50 Pac. 556, and in Demers v. McCormick, 5 Mont. 234, 2 Pac. 350. Would it necessarily follow that the costs incident to the appeal dismissed in each of such instances would follow the action of the court upon the other? We think not. Again, it is sometimes the case that the appeal from the order denying a new trial is, in effect, affirmed, and the judgment reversed. This is the case where, upon the record in this Court, it appears that the district court has entered the wrong judgment, and is by the judgment of this Court directed to modify it, or to enter an entirely different judgment, without a retrial of the issues. (Kimpton v. Jubilee Placer Mining Co., 16 Mont. 379, 41 Pac. 137, 42 Pac. 102, and cases cited.) In case the judgment is modified, the costs will be adjudged at the discretion of this Court. (Code of Civil Procedure, Section 1855.) If the two appeals in such cases are to be regarded as one, then an undertaking conditioned to secure the “appeal” (using this term in the singular) should be sufficient; but such an undertaking is held to be void, because it cannot be properly referred to either. (Kelly v. Leachman, Idaho, 51 Pac. 407.) Using the same argument, an undertaking referring to both appeals, without alternative conditions referring to each separately, so as to bind the sureties to meet all the contingencies which may arise, is, to say the least, insufficient. Upon a dismissal of either appeal the respondent is entitled, as a matter of course, to his costs incident thereto. (Section 1855, supra.) Upon a reversal or modification of the judgment without a new trial, he is entitled to recover his costs incident to the appeal from the order denying the same. The appeals may be intimately connected, but not so much so that the costs incident to each may not be adjudged separately. An appeal in any instance is allowed only by statute, and the respondent is entitled to insist upon being indemnified against any costs accruing to him thereby. ‘ ‘The question as to the validity and effectiveness of a bond assumes a different form in a case where the obligors seek to escape liability from that which it wears in a case where the appellee appropriately and opportunely deínands a bond properly worded and executed. The cases are radically different, and are governed by very different rules. It is obvious that an appellee who properly and duly demands a bond executed in conformity to the requirements of the law occupies a very different position from that occupied by parties who seek to defeat a recovery upon the bond. Defects not available to defeat a recovery on the bond may be sufficient to entitle an appellee to a new bond. An appellee is not bound to incur the risk or the expense of an action upon an imperfect bond, and hence he may, by a seasonable and appropriate application, require that one conforming to the law shall be executed, while, on the other hand, it is, in strictness, the duty of the party who prosecutes the appeal to execute and file such a bond as the law requires. ’ ’ (Elliott, App. Proc., Sec. 365.) The only way provided by our statute by which application can be made by respondent for an undertaking that will fully protect him is by motion to dismiss.

Counsel argues that, though the undertaking may be defective, yet the legal maxim, Communis error facit jus, ’ ’ is applicable, and should in this instance be allowed the force of law, because a great many appeals to this Court during the past have been secured by undertakings equally as defective as the one under consideration. Granted that this is true; the particular error asserted by him to be so common as to warrant this Court in giving it the force of law does not appear to have had any recognition either by this Court or the profession generally. So far as we are informed, this is the only instance in which it has been brought to the attention of this Court, directly or indirectly. The maxim invoked was discussed in O’Donnell v. Glenn, 9 Mont. 452, 23 Pac. 1018, 8 L. R. A. 629, and the general rules under which it may be applied are there stated; but there is no room for the application of any of them here.

Counsel insists that, in the event the court does not agree with him as to the sufficiency of the undertaking, he may still be permitted to file another, and thus reinstate the appeal. The Court has no authority to permit this after the motion to dismiss has been submitted. (Code of Civil Procedure, Section 1740.) The statute is clear and explicit, and leaves no ■ room for discretion. Inasmuch, however, as the time within which an appeal from the judgment may be taken has not expired, the order dismissing the appeal may be modified so that it may be without prejudice.

The motion for rehearing is denied. Denied.

Mr. Justice Hunt: I think a rehearing should be granted.


text:
    BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING CO., Plaintiff, v. MONTANA ORE PURCHASING CO., Defendant.
    [No. 1,395.]
    [Submitted April 14, 1900.
    Decided April 18, 1900.]

      Injunction — Proceeding m Contempt — Insignificant Violation — Violation l>y Mistake — Affidavits—Pleading.
    1. An insignificant technical violation oí an injunction will not be punished as a contempt, where the violation was not with any intention to disobey the injunction.
    2. Where defendants’ foreman is instructed to run a drift in a westerly direction, and, through misunderstanding his orders, by mistake, runs it in an easterly direction, on plaintiff’s mining claim, and extracts ore therefrom, in violation of an injunction restraining defendants from mining and extracting ore from plaintiff’s mines, defendants are in contempt of court.

      3. One who would charge a contempt should aver directly, and not argumentatively, that the particular acts constituting contempt were done by the defendant, hence, proceedings in contempt for violating an injunction will be dismissed, where plaintiff’s affidavits charge argumentatively that defendant is guilty by stating that the acts complained of were not committed by plaintiff, nor by another named in the affidavits; leaving defendant’s guilt to be established by inference.
    Action by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company. Application for punishment for violating injunction.
    Dismissed.

      Mr. Wm. H. De Witt and Mr. T. J. Walsh, for Plaintiff.

      Messrs. McIIatton <& Cotter and Mr. BoVt B. Smith, for Defendant.
   PER CURIAM.

— On motion of the plaintiff, based upon certain affidavits filed therewith, this Court required the defendant to show cause why it should not again be punished (see State v. Montana Ore Purchasing Co., 22 Mont. 352, 56 Pac. 1134), as for a contempt, because of its supposed violation of certain injunction orders issued on the 2d day of March, 1899. The defendant appeared on the 11th day of April, 1900, and moved the quashal of the order and the dismissal of the proceedings upon the ground that the affidavits were insufficient, and failed to state facts constituting a contempt by it. This motion the Court took under advisement, and ordered the hearing to be proceeded with, the defendant objecting to the introduction of any evidence therein. Testimony was then introduced in support of the proceeding, and by the defendant in its behalf.

The evidence adduced for the purpose of establishing a disobedience of the orders of this Court fails clearly to satisfy us of a violation of them by the defendant, except in two respects, to-wit, the encroachment by the defendant upon the Pennsylvania ground in the No. 26 and No. 29 drifts. In the 26 drift only enough ground was moved to place a set of sloping timbers, and this was done without any design to disobey the injunction. The encroachment was insignificant. We do not regard this merely technical violation as sufficient cause for punishment. In the No. 29 drift, 26 feet were run; why this happened to be done by the defendant was explained by one of its engineers, who testified that he directed the foreman to run the drift ‘ ‘westerly, ’ ’ but by mistake the foreman understood him to say ‘ ‘easterly. ’ ’ The error was not discovered until the drift had been run the 26 feet, and timbered, when it was immediately stopped by the defendant, and the drift run westerly. The ore taken from that part of the Pennsylvania mine was of small commercial value, being worth little, if any, more than the cost of the labor of extracting and smelting it. This trespass was committed in May, 1899; it constituted a violation of the order of this Court. Plaintiff knew of such violation, but refrained from making complaint thereof until the present proceeding was instituted, on the 26th day of March, 1900. Nearly ten months’ delay in bringing it to our attention justifies the belief, under all the circumstances disclosed, that the plaintiff itself did not feel that the violation was a willful or serious transgression of the injunction order. After considering the evidence with respect to this drift, we think it establishes a careless mistake or blunder on the part of the engineer or foreman of the defendant company, for which it is now answerable if the affidavits, or any one of them, contain a sufficient allegation of a contempt by the defendant in this particular; and, if the charge be sufficient, we should regard such disobedience as calling for the imposition of a nominal fine; but we are of the opinion that there is no allegation in the affidavits, or in any of them, which, if true, fastens upon the defendant, as a matter of law, the doing of the act. The affidavits upon’ which the motion for an order to show cause is founded are by no means as direct in their averments as they should be. One who would charge a contempt should aver directly that the particular acts constituting contempt were done by the defendant. In this proceeding, for example, if certain ore in sacks was taken by the defendant in violation of the order of the court, the affidavits should so state, instead of charging argumentatively that the defendant took the ore by stating that it was not taken by the plaintiff or the plaintiff’s agents, and was not taken.by another corporation which had access to the place where the ore was stored. Argumentative affidavits, in which the affiant endeavors to reason out a charge of contempt by exclusion, will not serve as foundation for an inquiry which involves the liberty of persons. The following averments contained in the affidavit of Davis, an engineer in the employ of the plaintiff company, are fair examples of those found in the other affidavits: “That after the order of this court was made, punishing the defendant for contempt, and during the month of May, 1899, all of drift 29 that is east of a crosscut from the Rarus lode claim was driven in Pennsylvania ground covered by said injunction, and ore was extracted and removed from said drift and from said Pennsylvania lode claim, and hoisted through the shafts of the defendant, and that said drift 29 is not any portion of any work that was allowed by this court to be done under a modification of said injuntion; that said work last described, and said extraction of ore, was not done by the plaintiff herein or the Butte & Boston Consolidated Mining Company. ’ ’ This falls far short of a statement that the encroachment or the extraction of the ore was the act of the defendant. The averment, although true, does not implicate the defendant in, or connect it with the doing of, any prohibited act. There should be some direct charge made, either positively or upon information and belief, that the defendant committed an act constituting a contempt. Other affidavits, containing statements of the evidence in support of such charge, would be proper for the consideration of the court upon the application for an order on the defendant to show cause why it should not be punished as for a contempt. It seems obvious that, where the facts stated in the affidavits are consistent with the innocence of the defendant, there is no charge against it which is able to withstand an attack made in due season. It is not enough that the affidavits contain evidentiary matters from which may be inferred the guilt of the defendant. The order to show cause and the proceeding must be dismissed.

We deem it not improper, however, to remark that, while upon slight evidence we shall not reach out to infer willfulness or intended disregard of our orders by those whose especial duty it is to obey and respect them, yet the disposition of the Court is to punish severely, where the proof is clear of any willful violation or disregard of its injunction orders, and persons or corporations enjoined need expect no lenity when the disobedience of its mandates is willfully committed, and proof is forthcoming, under a sufficient charge, that it has been so done.

For the reason that there is no sufficient affidavit upon which the order to show cause or the proceeding may rest, the order is vacated, the defendant is discharged, and the proceeding is dismissed.

Dismissed.


author: PER CURIAM

text:
    MONTGOMERY, Appellant, v. GILBERT et al., Respondents.
    [No. 1,215.]
    [Submitted April 17, 1900.
    Decided April 23, 1900.]

      Injunction — Dissolution—Damages—Attorney’s Fees.

    An attorney’s fee expended in procuring a dissolution of a restraining order is contemplated Dy tlie bond given on the issuing of the injunction.)

      Appeal from District Court, Deer Lodge County; Theo. Drantly, Judge.

    Action by Lee Montgomery against Harris P. Gilbert and others. From a judgment in favor of plaintiff, he appeals.
    Reversed.

      Mr. F. Scharnil'ow, for Appellant.
   PER CURIAM

Appeal by the plaintiff from a judgment in his favor for $42, rendered on the verdict of a jury in an action upon an undertaking given by the defendant Gilbert to the plaintiff in the case of Gilbert against Montgomery to protect the plaintiff against damages arising from a temporary restraining order therein issued. The restraining order was afterwards dissolved, and the case was finally dismissed. Among the allegations of the complaint in the present action is one to the effect that the plaintiff paid $100 to an attorney for his services in the matter of procuring the dissolution of the restraining order. Upon the trial there was evidence tending to establish this allegation, and the court was asked to instruct the jury that in estimating the damages they should allow to the plaintiff such reasonable sum as he had paid for an attorney’s fee in procuring a dissolution of the restraining order. The court refused so to instruct, and charged the jury that the plaintiff was not entitled to recover any attorney’s fee, as the attorney’s fee paid was an expense not contemplated by the sureties upon the undertaking, and that, therefore, they were not liable. In this there was misdirection and prejudicial error. (Miles v. Edwards et al., 6 Mont. 180, 9 Pac. 814; Creek v. McManus et al., 13 Mont. 152, 32 Pac. 675; Cook. Greenough et al., 11 Mont. 352, 36 Pac. 357.)

The judgment is therefore reversed, and the cause remanded, with instructions to grant a new trial.

Reversed cmd remanded.

Mr. Chief Justice Brantly, being disqualified, did not participate in the foregoing decision.


text:
    COLE et al., Appellants, v. RYAN, Respondent.
    [No. 1,230.]
    [Submitted April 23, 1900.
    Decided April 30, 1900.]

      Appeal — Rules of the Supreme Court — Briefs—Specification of Errors.

    The merits of an appeal will not be considered, where appellant’s brief contains no specification of errors, since Rule X, S»bd. sb, requires appellant, in his brief, to assign each error, "separately and particularly,” and properly numbered.

      Appeal from District Court, Custer County, C. H. Loud, Judge.

    Action by J. B. Cole and another against Jepp Ryan. From an order denying plaintiffs a new trial, they appeal.
    Affirmed.

      Messrs. Strevell <& Porter, for Appellants.

      Mr. C. R. Middleton, for Respondent.
   PER CURIAM.

— Appeal from an order denying plaintiffs a new trial. Whatever may be the merits of this appeal, the Court cannot consider them, for the reason that the brief of appellants does not comply with the rules. The errors relied upon in the argument of counsel to secure a reversal of the order are alleged upon rulings of the trial court in the admission and exclusion of evidence, and upon instructions given and refused. There is no attempt in the brief, however, to assign each error ‘ ‘separately and particularly, ’ ’ and properly numbered, as required by Rule X, Subdivision 3b., of the Rules of this Court. Indeed, there is no specification of errors whatever. The Court will not, therefore, undertake to examine them. (Missoula Mercantile Co. v. O'Donnell, 24 Mont. 65, 60 Pac. 594, and cases cited; State v. Shepphard, 23 Mont. 323, 58 Pac. 868; State v. Allen, 23 Mont. 118, 57 Pac. 725.) The penalty for failure in this particular is severe, but the Court must either enforce the rule or abolish it.

Let the order appealed from be affirmed.

Affirmed.


text:
    CURRIE, Appellant, v. MONTANA CENTRAL RY. CO., Respondent.
    [No. 1,228.]
    [Submitted April 20, 1900.
    Decided April 30, 1900.]

      Appeal — New Trial — Record on Appeal — Insufficiency of the Evidence to Justify Fundings — Implied Findings — Review.
    1. Where the record does not show that the statement on motion for a new trial eon- • tains all the evidence, an examination cannot be made, on appeal, of its alleged insufficiency to support a finding of fact.
    2. Where appellant claims that the trial court erred in its conclusions of law deduced from its findings of fact, but had failed to point out the particular defects in the findings made by the court, and to save his exceptions, as required by the Code of Civil Procedure, Section 1114, the Supreme Court will not examine into that question.
    3. Under the doctrine of implied findings prevalent in Montana, a judgment appealed from will not be reversed unless requests and exceptions were made and saved in accordance with the requirements of the Code of Civil Procedure.

      Appeal from, District Court, Silver Bow Cownty; John Lindsay, Judge.

    Action by John G. Currie against the Montana Central Railway Company. From a judgment in favor of defendant, plaintiff appeals.
    Affirmed.

      Mr. M. D. Leehey and Mr. Chas. JR. Leonard, for Appellant.

      Mr. A. J. Shores, for Respondent.
   PER CURIAM.

— Suit to recover an undivided one-third interest in certain premises, and to be let into possession as a tenant in common with the defendant. Trial by court. Findings and judgment for defendant. Plaintiff appeals from the judgment and an order denying his motion for a’new trial.

There is no certificate contained in the record, nor does it otherwise appear, that the statement on motion for a new trial contains all the evidence had upon the trial. We are therefore precluded from making an examination into the alleged insufficiency of the evidence to justify the findings of the court. (State v. Shepphard, 23 Mont. 323, 58 Pac. 868.) This disposes of all of plaintiff’s specifications of error, except the last, wherein he specifies that the court erred in its conclusions of law deduced from the findings of adverse possession. While we doubt whether this contention has merit in it under the findings that were made, we will not examine into that question; for plaintiff failed to point out the particular defects — if any there were — in the findings made by the court, and to save his exceptions, as required by the Code. (Section 1114, Code of Civil Procedure; Haggin v. Saile, 23 Mont. 375, 59 Pac. 154; Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447.)

Under the prevalent doctrine of implied findings, the judgment appealed from will not be reversed unless requests and exceptions were made and saved. { Vide above authorities.)

We find no error. Judgment and order appealed from are affirmed.

Afirmed.


text:
    BUTTE & BOSTON CONSOLIDATED MINING CO., Appellant, v. MONTANA ORE PURCHASING CO. et al., Respondents.
    [No. 1,459.]
    [Submitted January 18, 1900.
    Decided April 30, 1900.]

      Mines and Mining— Corporations — Injunction—Pleading— Verification — Statutory Construction— Co- Tencmts— Operation of- Mine — Tender.
    1. A restraining order can not be granted on a complaint by a corporation verified only on information and belief; the affidavit of verification must be made positively.
    2. A repeal signifies an abrogation of one statute by another. The Act of Feb. 28, 1899 (Session Laws of 1899, p. 134), did not repeal, expressly or by implication, Section 592 of the Code of Civil Procedure, but restricted the operation of the general language of said section by giving to the subject matter thereof a qualified operation, merely, as to the cases included in the provisos of the Act of Feb. 28, 1899.
    3. To be excepted from the liabilities for injury under Section 592, Code of Civil Procedure, a co-tenant, entering upon mining property and enjoying the rights given by the provision of the Act of Feb. 28,1899, must comply strictly with the obligations attached to the privilege of such entry; unless a working co-tenant brings himself squarely within the provisos of the Act of Feb. 28, 1899, the law preserves to his nonworking co-tenant exactly the same actions against such working co-tenant as he had before said act was in force.
    4. Where one co-tenant occupies mining property in compliance with the provisions of the Act of Feb. 28, 1899, the statute does not always give to another co-tenant an equal right to mine elsewhere on the same claim.
    5. A co-tenant not joining in the operation of a mine, and suing for damages for the removal of ore therefrom through another mine, owned by his tenant in common, to which plaintiff had no right of access, was entitled to an injunction pendente lite to restrain such removal, though defendant offered to account for ore extracted therefrom.
    6. Where defendant, a co-tenant, wrongfully worked a mine through a shaft from another mine, in which plaintiff had no interest and to which he had no right of access, plaintiff was entitled to an injunction pendente lite, restraining defendant from continuing to work such mine, though he failed to tender his proportionate share of the cost of mining the ore extracted therefrom, since such tender was excused by plaintiff’s inability to ascertain what ores it was entitled to in order to estimate the amount of such tender.

      Appeal from District Court, Silver Bow County; John lindsay, Judge.

    Action by the Butte & Boston Consolidated Mining Company against the Montana Ore Purchasing Company and others, to recover damages for wrongful removal of ore from a mine, and to restrain its further operation. From an order dissolving a temporary restraining order and denying an injunction pendente lite, plaintiff appeals. Order dissolving the restraining order affirmed, and order denying the injunction pendente lite

    reversed.
    Statement of the Case.
    Plaintiff brought this action for damages and injunction. A temporary restraining order was issued on the complaint alone. Defendants moved to discharge the temporary restraining order. That motion and an application for an injunction pending the litigation were heard together. The lower court discharged the temporary restraining order, and denied the injunction pendente lite. Plaintiff appeals from each order. On the hearing it was admitted that the legal title to the Snohomish mining claim is one-half in the plaintiff, the Butte & Boston Consolidated Mining Company, and one-half in the defendants, A. P. and F. A. Heinze, and that the legal title to the Tramway mining claim is two-thirds in the said plaintiff, and one-third in the said defendants, A. P. and F. A. Heinze. F. A. Heinze is the administrator of the estate of James Larkin, deceased, of which said estate Clara Larkin is heir. The administrator and heir are made defendants; it appearing that there is pending another action, wherein the said heir claims that the estate of Larkin owns the one-half of the Snohomish and two-thirds of the Tramway claims. But, so far as the legal title is concerned, plaintiff and A. P. and F. A. Heinze are conceded to be joint tenants in the Snohomish and Tramway claims. The Snohomish and Tramway claims are near to the Rarus mining claim, which is owned by the defendant, the Montana Ore Purchasing Company, and through the workings of the Rarus there is underground access to the Snohomish and Tramway mines. Certain of the defendants (the Heinzes) entered upon the Snohomish and Tramway claims through the underground workings from the Rarus, extracted ore, and hoisted the same through the Rarus shaft. Said defendants had the ores so extracted treated and reduced. None of this ore was left on the dump of the Snohomish or Tramway claims. Plaintiff made no tender to defendants before this action was instituted of its proportionate share of the cost of mining the ore so extracted, nor did it ever demand an accounting. Plaintiff had no rights upon the Rarus ground, and one of its engineers was denied free access to certain workings of the Snohomish, to which he could only get access conveniently, if at all, through the Rarus shaft. Defendants P. A. and A. P. Heinze had carried on mining through underground workings in the Snohomish and Tramway claims for some time. Of all this plaintiff had knowledge, yet never made complaint until the commencement of this action. An account of ores extracted was kept by Messrs. Heinze, who were willing to account to their co-tenant.

      Messrs. Eorbis da Evans, Mr. Ransom Cooper, and Mr. William H. Be Witt, for Appellant.

      Messrs. MgIlatton da Cotter, Messrs. Clayberg, Corbett da Lee, Mr. Robert B. Smith, Mr. Charles R. Leonard, Messrs. Me Connell ds Mb Connell, and Messrs. Toole, Bach <& Toole, for Respondents.
   PER CURIAM.

Counsel for the defendants would have us affirm the order dissolving the temporary restraining order because the complaint made by the corporation was not verified as required by Section 872 of the Code of Civil Procedure. That section provides that an injunction order shall not be granted on the complaint alone unless (1) it be duly verified; and (2) the material allegations of the complaint, setting forth the grounds therefor, be made positively, and not upon information and belief. The material allegations of this complaint are made positively, and not upon information and belief, but the verification is in the form prescribed by Section 731 of the Code of Civil Procedure, which provides, that when a corporation is a party, the verification may be made by an officer thereof, and must state what officer he is, and that the matters stated therein are true, to the best knowledge, information, and belief of such officer. If there is no officer of the corporation within the county, the verification may be made by its attorney. Defendants’ reasoning is that Section 872 is a special statute appertaining to a complaint for an injunction, and that in order to carry out the meaning of the statute, no injunction order shall be granted on the complaint alone, unless the verification be duly made positively, and not upon information and belief. We must uphold defendants’ position. The purpose of the prohibitive part of the statute (Section 872) is to prevent the granting of a restraining order upon a complaint alone, unless the plaintiff will positively set forth his grounds for relief. Good faith and truthfulness on the part of the complainant are more apt to be had by requiring positive statements, than could they be by permitting him to procure an order based upon a complaint made only on information and belief. That part of Section 872 forbidding the granting of an injunction order on the complaint alone, unless “it be duly verified,” must be read in connection with the latter portion, requiring the material allegations of the complaint, setting forth the grounds for injunction, to be made positively, and not upon information and belief. So reading the statute, it not only requires the material allegations of the complaint to be made positively, but that the whole complaint shall be verified by affidavit as positively as its material averments must have been made. Therefore there is not a duly-verified complaint, under Section 872, unless the verification is upon oath, positively made, to the truth of the complaint asking for the injunction order.

It would be doing violence to the object of Section 872 to hold that a corporation can secure an injunction order on a complaint alone, not verified as true, but that an individual cannot; yet such would be the consequences of a rule to the effect that the words ‘duly verified’ ’ mean simply a verification under Section 731, or the general statutes relating to verification. Again, if the due verification contemplated by Section 872, where an injunction order is asked on a complaint alone, is only what must be had to pleadings generally, an individual desirous of securing an injunction order can go out of the county where the complaint is filed, and by doing so secure an injunction order on a complaint alone, verified by his agent or attorney on his best knowledge, information, and belief, whereas, if he should remain in the county where the application is made, he would have to verify by affidavit to the effect that his pleading is true to his knowledge. The spirit of Section 872 is manifestly against such practices, and we believe that to avoid constructions which will practically nullify the prohibition against granting an injunction order on a complaint alone, unless the material allegations setting forth the grounds therefor be made positively, it is proper to regard the verification as duly made only when the affidavit of verification is made positively.

Where a corporation seeks an injunction order on a complaint alone, the complaint will usually be verified by some officer, agent, or attorney who knows the facts. Some one, however, must make positive affidavit to their truth, under Section 872, which, in our opinion, specially controls, without distinction between individuals and corporations.

The court therefore properly dissolved the restraining order that had been issued on the complaint alone; but when the hearing was had in support of the application for an injunction pendente lite, and before the order denying the same was made, evidence on both sides was introduced and considered. The question is therefore presented whether, under the pleadings and evidence, the court was correct in denying the plaintiff’s application for an injunction pendente lite.

May the defendants mine the Snohomish and Tramway claims pendente lite, under the provisions of the act to amend Section 592 of the Code of Civil Procedure, relating to property held in joint tenancy and tenancy in common, approved February 28, 1899 (Session Laws 1899, p. 134)?

Before the amendment the defendants were barred. Being co-tenants with the Messrs. Heinze, the plaintiff corporation was aggrieved by the mining done by tbe defendants, which involved the assumption and exercise of exclusive ownership over the property. Being so aggrieved, it had a right of action for the injury done, which right of action was as full and complete, under the facts' presented, as if the co-tenants were strangers in their property relations. (Anaconda Copper Min. Co. v. Butte Boston Min. Co., 17 Mont. 519, 43 Pac. 924.)

The extinction of the strict rules controlling the relationship between co-tenants, in so far as the common law or earlier statutes restricted one co-tenant in the enforcement of a romedy if aggrieved in certain respects, gave the plaintiff a remedy through any appropriate action, including the remedy by injunction. In their learned supplemental brief, counsel for respondents contend that the rule of the Anaconda Case, supra, went too far, because, they say, its logical results will permit one co-tenant to prevent his co-owners from using the common property in any manner, and thus to destroy rights which have always existed at the common law, but which the statute did not take away. It is proper, though, to accept the • statements of the court in that case, and to understand them as applied only to the particular facts and kind of property then before the court. When this is done, the general argument of the opinion does not admit of the unqualified deductions that counsel have made. The rule of the Anaconda Case is well stated in the headnote as follows: “Where one of two tenants in common of a mine owns an adjoining claim, from which, by means of a shaft and underground workings, he extracts the ore from the vein in which they are co-tenants, appropriating it to his own use, this is an assumption and exercise of exclusive ownership over the property, which the tenant aggrieved thereby may restrain by injunction, under Section 592 of the Code of Civil Procedure, providing that, if any person shall assume or exercise exclusive ownership over any property held in tenancy in common, the party aggrieved may have his action for the injury in the same manner as if such tenancy in common did not exist. ’ ’

The reasoning of Justice De Witt was on lines within which actions concerning co-tenancies of. the kind then before the court must be controlled under the statute: “If any person shall assume and exercise exclusive ownership over * * * any property held in tenancy in common, the party aggrieved shall have his action for the injury in the same manner as he would have if such tenancy in common did not exist.” Now, when any of the conditions which are enumerated do exist, his “action” is an ordinary proceeding in a court of justice, by which he may prosecute an aggrieving party for the enforcement or protection of any right, or the redress or prevention of a wrong. It follows that, if he has the action, as the aggrieved party he has a right to the action, not provided only he may not have had it at the common law, but he shall have it in the same manner as he would have if tenancy in common did not exist; that is, if any one co-tenant shall assume and exercise exclusive ownership over the property of his co-tenants, for the purposes of the enforcement or protection of any right or the prevention of any wrong, the relationship of co-tenancy does not limit the nonjoining co-tenant to any one remedy or to the pursuit of any particular proceeding formerly limiting actions by one co-tenant against another, but affords him any action that a stranger might have. Indeed, when aggrieved, he becomes a stranger towards his co-tenant in casting about for relief.

Counsel argue that injunction will not lie herein, because the law does not say the same remedy shall be given; but to the end that an action may be had, and for the very purpose of affording relief, there is an obliteration of the joint relationship when one co-tenant assumes and exercises exclusive ownership, or takes away, destroys, lessens in value, or otherwise injures or abuses any property held in tenancy in common. With the right of action given goes the right to the instrument, or the means by which to maintain the right; that is, the remedy, for an action is but one of the two remedies laid down by the Code to be administered by a court of justice. (Sections 3469, 3470, of the Code of Civil Procedure.)

In this argument, which is but a restatement of the rule of the Anaconda Case, we do not now extend the application of that decision beyond the facts there and here involved, and our opinion must be considered accordingly. If instances arise where the doctrine of the Anaconda Case is invoked regardless of the nature of the subject (quartz-mining property held by title of co-tenancy), the Court may not go as far as counsel for these respondents say it must. For example, as intimated in Harrigan v. Lynch, 21 Mont. 36, 52 Pac. 642, we doubt whether the legislature meant to or could allow one co-tenant of an unpatented mining claim to prevent his co-tenant from doing annual representation work, failure to do which would result in a loss of the joroperty of the co-tenancy, or whether A., a co-tepant in an irrigating ditch, with a right to the use of water flowing therein, can enjoin his co-tenant, B., from the use of the water, provided A. is not using the same. Nor do we believe a nonconsenting co-tenant could always have the same judgment against his co-tenant for an act which, if committed by a stranger, would be a trespass; for what would be a trespass by a stranger would not necessarily be a trespass by a co-tenant. Other illustrations might be made to show the necessity of always applying the law of the Anaconda Case with reference to the facts and kind of property involved. But, as to rights of co-tenants in mining claims under certain conditions, its particular doctrine has been affirmed in Red Mountain Consol. Mining Co. v. Esler, 18 Mont. 174, 44 Pac. 523, Connole v. Mining Co. 20 Mont. 523, 52 Pac. 263, and Harrigan v. Lynch, supra, and is too firmly implanted to be uprooted and cast away. Nevertheless the statute under which the decisions cited were rendered has been amended; so to the amended law and its effects we turn our attention, that we may determine how mining co-tenants in Montana now stand towards each other.

The law of 1899 (Sess. Laws 1899, p. 134) is an amendment to the original Code section; it re-enacts Section 592 without change, and then adds certain limitations and qualifications by way of exceptions or provisos. The effect of the provisos is to restrict the operation of the general language in the first clause of the bill, which was the old section unaltered, by giving to the subject-matter thereof a qualified operation, merely, as to the cases included in the words of the exception. “A proviso is something ingrafted upon a preceding enactment, and is legitimately used for the purpose of taking special cases out of the general enactments, and providing specially for them.” (Potter, Dwar. St. p. 118) There was no repeal of Section 592, expressly or by implication. A repeal signifies an abrogation of one statute by another. (Sutherland on Statutory Const, p. 177.) The old law (Section 592) copied into the amended statute is not to be considered as repealed and again enacted, but to have been the law all along, while the portions in the provisos are to be regarded as effective only since the enactment of the amended law. (Ely v. Holton, 15 N. Y. 595.) We state the foregoing principle of statutory construction to answer the argument of one of the several briefs of respondents, asserting that the statute of 1899 was a repeal of the former law. There is nothing in the provisos so repugnant to the original statute that the new law abrogates the old one; if there were, the repugnancy would exist between the several portions of the amended law as it stands today. But such a construction, unless unavoidable, is wrong. The theory of the amended statute seems to be this: Under the older statute, as practically construed after the Anaconda decision cited, it was believed that one co-tenant could not work his mine owned in co-tenancy, and take out and sell his ore, without the consent of his co-tenant. The effect of this condition of the law was looked upon as unfortunate for the state. So the legislature concluded to modify the statute by taking out from the sweeping restrictions of Section 592 certain limitations which controlled the relations of co-tenants to one another, and to provide specially for them. Nonaction of co-tenants meant the idleness of a large class of property, and, evidently with a determined purpose to allow use and enjoyment by one co-tenant wishing to use and enjoy the common property, the amendment was made.

The first paragraph of the proviso is general. It extends to every co-tenancy, and to all kinds of property capable of occupancy held by tenancy in common, including real estate, mines, and all other. If A. and B. are co-tenants in a tract of 160 acres, and A. lives on 40 acres, which he has fenced in, while the rest of the tract is unfenced, yet A. attempts to exercise and assume exclusive ownership of the whole 160-acre tract, B., who has not had any actual possession and occupancy or use or enjoyment of the tract, or any part thereof, can certainly go upon that portion of the tract not within the fence of A., and enjoy all rights of occupancy of such unfenced portion, provided, always, he commit no waste; for B. is within the proviso amending the original law. And, when B. has so entered the unused tract, if he fence and occupy the same, A. has neither any action against him for such entry and occupancy, nor can he prevent B. from the enjoyment of all rights of occupancy of the tract so entered upon.

In mining property this general modification applies, also, but we must not overlook the nature of the property. If A. and B., as co-tenants, own a mining claim, and A. assumes and exercises exclusive ownership, by calling it his own, and goes upon it, but will not work it himself, and denies his co-owner a right to work thereon, B. can go onto such mining claim, and enjoy all the rights of occupancy of the mine, by mining and selling the ore, without doing waste. This is B.’s right under the amended statute. Out of an abundant caution, the legislature, in enacting the proviso affecting mining property owned by co-tenants, and to guard against misinterpretation, provided that nothing should prevent occupancy and enjoyment, and that, “in the case of mining property, from mining the same in a miner-like manner, and extracting, milling, and disposing of the ore from the common property, paying its or their own expenses, and subject to accounting to the non-joining co-tenant or joint , tenant for the net profits of such mining operations, if any made; and all liens for labor and materials incurred in such mining shall attach only to the undivided interest or interests of the working co-tenants or joint tenants.” This right was in turn cautiously restricted by the last clause of the act, providing that ‘ ‘nothing herein shall prevent or preclude the co-tenant or joint tenant, not joining in the operation of such mining property from receiving his, its, or their proportionate share of all ore or ores on the dump upon payment or tendering payment of the actual cost of mining the same. ’ The two last exceptions or provisos should be construed to carry out the object of the law; that is, to permit mines held in co-tenancy to be worked by one co-tenant, provided, only, his co-tenant’s rights are guarded and preserved exactly as the statute says they shall be. But the right to work and extract the ore and sell the same is given where formerly it had not been. This privilege of working the mine and disposing of the ore is a valuable one, and carries with it correlative obligations, without which the privilege cannot be availed of. The enjoyment of the right is not to be had without the fulfillment of the obligation; for the law is jealously careful of the rights of the nonworking co-tenant, and, in certain terms, protects him by several possible ways. “We give to one co-tenant a right to mine and sell the ore,” the legislature have said, “because we believe it policy to open the mines of the state, and to change the policy which had a contrary tendency, but we have not done so without protecting you nonjoining co-tenants so thoroughly that you need fear no invasion of your rights.” Now, how has this protection been bestowed? First. The working co-tenant must mine in a miner-like manner. This at once prevents the impairment or ruin of the property by unskillful or injurious methods, — methods which would justify the condemnation of disinterested persons who are practiced and expert in the conduct, operation and management of mines similarly situated. Second. Such working co-tenant must pay his own expenses. He may do this from the sale of the ore taken from the mine, but he makes the sale subject always to an accounting to the nonjoining co-tenant for the profits. If there be profits, he must pay over to his co-tenant, while, if there be no profits, but losses, he alone must suffer, for he cannot call on the nonjoining co-tenant to contribute in any way. Third. The working co-tenant can incur no liability which can fasten a lien upon the interest of the non-working co-tenant. No matter what extravagance the working co-tenant is guilty of, the nonjoining co-tenant can rest perfectly satisfied that his own interest cannot be tied up or endangered. Fourth. If the non joining co-tenant is not pleased with the right to an accounting, but prefers to take his share of the ore, he may elect to do so, and may take it on the dump, upon tendering to his working co-tenant payment of the actual cost of mining the same.

It will seldom occur that co-tenants in a mine will disagree so radically that there can be no practical operation of their property under this amended statute; for, if the working co-tenant mines in a miner-like manner, there will usually be enough confidence in him by his nonjoining co-tenant to accept an accounting, if full, and accompanied by vouchers of shipments, assays, returns, etc. But, if all mutual confidence be gone, the nonworking owner still has the other resort by which to protect himself. He can take in kind, and get every pound of ore belonging to him as it is laid down on the-dump by his working co-tenant; and, if he does elect to take in this way, it becomes the duty of the working co-tenant to deliver his ore to him, so that he can “receive” it, as the law says he may, and all he need do is to pay or tender to the co-tenant so delivering his proportionate share of the actual cost of mining the ore. If the co-tenants are entirely estranged, it may be a matter of some difficulty for a nonjoining co-tenant to make an exactly correct tender or payment, where he takes in kind; but, if he tender enough, his right to receive becomes fixed, and the working co-tenant refuses to deliver at his peril. Now, the perils of refusing to account honestly, or to deliver the ore on the dump where sufficient money is tendered, lie in the possible stoppage of work by injunction, based upon any proper one or more of the several grounds enumerated in Section 592 of the amended law. Entry and use which would have constituted injury under the former Section 592, do not under the provisos. On the other hand, to be excepted from the liabilities for injury under Section 592, the co-tenant entering upon the property, and enjoying the rights given by the provisos, must comply strictly with the obligations attached to the privilege of such entry.

To contemplate every situation that may arise upon an entry upon mining ground held in tenancy in common is far too difficult a task to undertake. We can do but little more than express our cfpinion as to the meaning of the amended statute, and state its usual applicability. The point we would emphasize is this: That, unless a working co-tenant brings himself squarely within the provisos, the policy and letter of the law preserve to his nonworking co-tenant exactly the same actions against such working co-tenant as he had before the amendment was in force.

“Occupancy” of mining property, under the statute before us, implies a substantial and practical use of the earth for the uses for which it was claimed or located, and as contemplated by the claimants and locators. When a man occupies a dwelling house, his character of occupancy is with reference to the purposes for which the house was built — he lives in it; when he occupies a barn, his occupancy is complete, under the law, if he puts his horses and wagons in it; that is, an occupancy of property is to be understood with reference to the nature and character of the property involved. To occupy mining property, and to enjoy the right of occupancy, under the statute, is to mine the same in a miner-like manner, and to extract ore from the same, mill it, and dispose of it, and not to merely go upon it, yet refuse to dig and mine the ground. If there is such an occupancy and mining on the part of one co-tenant, the statute does not always give to another co-tenant an equal right to mine elsewhere on the same claim; for an occupancy and enjoyment may not always be consistently had by several co-tenants mining at the same time at several points in a single mine. The very statement of the proposition that several owners, unable to agree, can yet carry on mining of their one quartz claim by operating at different points would seem to be pregnant of conflicts with the rule which should invariably prevail, — that there shall be no mining except in a miner-like manner; for it needs no technical knowledge to assert that a system of varying methods might often be followed by great injury to, if not ruin of, the common property. We can safely say, therefore, that these rights or privileges of occupancy must be construed by the courts with a view to preserve the property for the common use to which it may properly be put, and at the» same time the manner of use should be confined to that which is usual and common in the practical enjoyment of mining claims.

After the valuable right to mine is availed of by a co-tenant, and work is once progressing, then it is to the co-tenant who is opposed to work at all that the law gives its careful protection, — to the unwilling one, the perverse one, or the one who could prevent any mining of the common property were it not for the proviso of the new law, — not the one who is a worker and wants to enjoy the proceeds of the mine; for the worker will be well able to look after his own interests by his actual control of the property. Several co-owners may disagree between themselves as to what is a miner-like manner of working their claim, yet agree to work it when that question has been settled, while another co-tenant will be a dissenter from the doing of any work. The differences of those who fall within the one class will not be hard to adjust, and, when adjusted, disagreements as to other matters will rarely ensue; but while the owner who does not want the property worked at all cannot accomplish all he would wish, as against his co-tenants who want to work, nevertheless he can prevent their going ahead against his will unless they do so with due and exact regard to his rights as a nonworker.

Having concluded our expression of what we conceive to be the law to control cases like the present one, we believe that' under the facts the defendants, who are mining through the Bar us shaft, should have been enjoined pendente Mte. The situation is peculiar, and, under the circumstances, becomes such that the nonjoining co-tenant, plaintiff, may appeal to the court to prevent further danger to its rights likely to happen by allowing defendants to take ore out of the Snohomish and Tramway mines through the Rarus shaft. The Rarus is in itself an independent, operated mine, to which plaintiff has no legal right of access. It follows that, where the ores from the Snohomish and Tramway and Rarus are all brought to the surface through said shaft, plaintiff cannot elect to take in kind, with a knowledge of just what proportion of the ore so brought to the surface is its share of the ores of the Snohomish and Tramway. The certain knowledge which plaintiff says it must have to afford it that adequate protection which the law gives is not available, apart from the statements of defendants, upon which plaintiff need not, and evidently does not, rely. Physical conditions thus enable defendants to impede the plaintiff in its absolute right to have secured to it a literal fulfillment. of the obligations the defendants assumed in mining the Snohomish and Tramway claims. Damages may be irreparable by a continuance of the conditions. A co-tenant in plaintiff’s position should be able to receive its ore on the dump, knowing that it has every pound forthcoming to it, and satisfied that, of every car load brought to the surface, its proportion is fixed, dependent solely upon the arrival of the car at the surface, and the quantity of its contents, and not upon the character of the ore, or the subtraction of any portion thereof, based on the claim that it has come from another property, in which plaintiff has no interest, and to which it has no access. Interference with this right of plaintiff is cause for action, and injunction to stop mining so conducted will lie.

An offer to account will not remove the ground of complaint, nor is plaintiff to be denied injunction because it failed to tender or pay its proportionate share of the cost of mining, inasmuch as it is excused from such tender or payment, as the facts show it could not accurately tell what ores it was entitled to, in order to estimate the amount of the tender.

The question of the constitutionality of the amended statute was raised by plaintiff; but as we hold the court erred in denying plaintiff’s motion for an injunction pendente lite, on the grounds discussed, we will reverse the order made in this respect, reserving an opinion upon the constitutional questions.

Rehearing granted June 7, 1900.

The order dissolving the temporary restraining order is affirmed. The order denying an injunction pendente lite is reversed. Cause remanded, with directions to proceed accordingly.

Demanded.


text:
    DRISCOLL, Appellant, v. CREIGHTON, Respondent.
    [No. 1,211.]
    [Submitted April 16, 1900.
    Decided April 30, 1900.]

      Justice of the Peace — Docket—Judgment hy Default — Evidence — Jurisdiction.
    1. A judgment by default rendered by a justice o£ the peace in plaintiff’s favor when plaintiff fails to appear at the time set for the hearing of the case, is void for want of jurisdiction.
    2. The docket of a justice of the peace must show affirmatively facts necessary to confer jurisdiction.

      Appeal from District Court, Silver Bow County; John Lindsay, Judge.

    Action by Dennis Driscoll against Thomas Creighton. From a judgment in favor of defendant, plaintiff appeals.
    .Affirmed.

      Mr. Chas. CDonnell, for Appellant.

      Messrs. Howell c& Harney, for Respondent.
   PER CURIAM.

— Driscoll, plaintiff and appellant, brought this action in the district court of Silver Bow county, upon á judgment obtained for $62.75 and costs in a justice’s court at Granite county on August 28, 1890. The action before the justice was upon an account for goods sold and delivered byDriscoll to Creighton at his special instance and request. Creighton answered in the district court, pleading the statute of limitations, and generally denying the material allegatiohs of the complaint. Trial by jury. Yerdict and judgment for defendant. Appeal from the judgment and order denying plaintiff’s motion for a new trial.

Plaintiff offered in evidence the justice’s docket, showing: that the complaint was filed with the justice of the peace on August 18, 1890; that summons was duly issued by said justice on that same day; that defendant on the same day “voluntarily appeared, and waived service of any summons in gaid action, and said he (the defendant) was ready for trial on Thursday, August 28th, at 3 o’clock p. m.; that the court set said case for said day at said hour; that on August 28th in the same year the above case was called at 3 o’clock p. m., and the defendant, Thomas Creighton, did not appear; that said case was continued for one hour, same day. At 4 o’clock p. m. on said day case called. Defendant, Thomas Creighton, defaulted. Whereupon the court ordered that judgment by default be entered up against the defendant by default of defendant for the amount sued for and costs of suit. Said judgment ordered entered. ” Defendant objected to the introduction in evidence of the record, and the court sustained the objection, and directed a verdict in defendant’s favor.

There is but one question presented upon this appeal, viz: Did the justice’s court in which the judgment sued upon in this action was entered have jurisdiction to render said "judgment? It is unnecessary in this case to decide whether the entry in the docket of the justice was sufficient prima facie evidence to show that the justice’s court had jurisdiction of the person of the defendant by his voluntary appearance, for the reason that the docket is fatally defective in that it does not show affirmatively that the plaintiff appeared at the time set for the hearing of the case; it therefore falls squarely within the procedure prescribed by Section 786 of the First Division of the Compiled Statutes of 1887, and the principle declared in State ex rel. Kenyon v. Laurandeau, 21 Mont. 216, 53 Pac. 536. It follows, therefore, that the judgment entered by the justice was void for want of jurisdiction. The district court did not err in sustaining the objection of defendant to the introduction in evidence of the justice’s docket, and directing a verdict in defendant’s favor.

Judgment and order affirmed.

Affirmed.


text:
    BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., Appellant, v. MONTANA ORE PURCHASING CO., et al., Respondents.
    [No. 1,395.]
    [Submitted January 19, 1900.
    Decided April 30, 1900.]

      Receivers — Restraining Order — Dissolution—Capacity to Sue —Practice.

    1. A temporary restraining order granted on filing oí complaint and affidavit, without notice to defendants, was properly vacated on motion, where the evidence showed that a receiver for the plaintiff had been theretofore appointed and had qualified in another case, since Code of Civil Procedure, Section 955, invests a receiver with power to sue in his own name, as receiver, and, in absence of a showing that such appointment was not in force, the affairs and property of plaintiff were in custodialegis, and plaintiff had no legal capacity to sue.
    2. The appointment of a receiver for a corporation (when coupled with his due qualification) invests him with the right to sue in behalf of the corporation and suspends the capacity of the corporation to sue for the time being; if the receiver refuses to bring a necessary action, the proper practice requires an application to the court for an order directing him to institute the action.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    Complaint by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. Erom an order vacating a temporary restraining order, the plaintiff appeals. Affirmed.

      Mr. Wm. IL. De Witt and Messrs. Korbis c& Kvans, for Appellant.

      Messrs. Mellatton da Cotter, Messrs. ■ Clayberg da Corbett, Mr. Chas. JR. Leonard and Mr. JRoVt B. Smith, for Respondents.
   PER CURIAM.

— This is an appeal by the plaintiff from an order of the district court of Silver Bow county, entered on the 1st day of March, 1899, vacating a temporary restraining order of the previous day, which had been granted upon the filing of the complaint and an accompanying affidavit, and without notice to either of the defendants. The order of February 28th restrained the defendants from mining or extracting ores within certain parts of the Pennsylvania lode claim, title to which was asserted by the plaintiff to be in it, until a hearing was had of an order to show cause why an injunction pending the suit should not be granted. The defendant Montana Ore Purchasing Company applied for a vacation of the restraining order upon the ground that one Hinds was the duly appointed, qualified, and acting receiver of the plaintiff, and that, therefore, the plaintiff had no legal capacity to bring and maintain the action, all of its property, business, effects, and rights of action being vested in the receiver. In support of the motion was presented the affidavit of an attorney for the moving defendant, to the effect that the plaintiff was the same corporation of which Hinds was receiver under and by virtue of an appointment from the court below made in the case of Forrester et al. against Boston & Montana Consolidated Copper & Silver Mining Company et al. There were also presented in support of the motion the records of that court showing that on the 15th day of December, 1898, Hinds was duly appointed receiver for the plaintiff, and of all its business, property, and effects, the order of appointment containing the usual authority and directions in respect of bringing and maintaining actions and the like, and further showing that he qualified as such on the day of his appointment. Upon the evidence the court dissolved the restraining order issued on the 28th day of February, and it is of this dissolution that the plaintiff complains on this appeal.

Counsel concede that neither this Court nor the court below may take judicial notice of the proceedings in any other cause. We assume this concession to be correct, and hence we do not consider or determine whether plaintiff would have had the capacity'to sue if, at the time the complaint was filed and the restraining order issued, the powers of the receiver were suspended, or the proceedings under the order appointing him stayed.

Looking only to the showing made, it does not appear that the district court abused its discretion in vacating the restraining order. For aught that was exhibited to the court, the order of December 15th, appointing the receiver, was in full force and operation. All the property of the plaintiff was intrusted to the receiver as the arm of the court; its property and affairs were in custodia legis. The receiver had . the exclusive right to institute and maintain actions for the protection of the rights of the plaintiff in respect of its property. The appointment of the receiver (at least- when coupled with his due qualification) suspended the capacity of the plaintiff to sue, and he succeeded to all rights of action which the plaintiff would have had but for the appointment. The order of December 15th, and Section 955 of the Code of Civil Procedure, invested the receiver with the right to sue in behalf of the corporation. The necessary effect of clothing the receiver with power to sue was to deprive the plaintiff, for the time being, of like power. We have been cited to no case or textbook announcing the contrary rule, and have been unable to find any; whenever the question here presented has arisen, the courts adhere, substantially, to the doctrine declared in Davis v. Ladoga Creamery Co., 128 Ind. 222, 27 N. E. 494: “In response to the position assumed by the appellee, it must be said that the receiver, when appointed, succeeded to all the rights of the Ladoga Creamery Company, and he alone, under the orders of the court, could maintain an action for the enforcement of such rights. The right of the company to sue was suspended so long as there was an acting receiver. ’ In Section 6900 of Thompson on Corporations, the learned author says: “The necessary effect of the appointment of a receiver, unless the statute under which he is appointed, or the order appointing him, is restrictive, is to suspend all rights of action, of whatever description, on the part of the corporation; since the receiver, in a general receivership, whether it be what is called a receivership pendente lite, or a receivership for the purpose of winding up the corporation, is vested with the right to the custody of all the assets of the corporation of whatever description, for the purposes of the administration; and this necessarily includes every right of action, of whatever description, which is possessed by the corporation. ’ ’

Rehearing denied, May 29, 1900.

The plaintiff did not allege a refusal by the receiver to bring such an action as the one brought by the plaintiff, and, as suggested by counsel for the defendants, if the receiver had refused, the proper practice required an application to the court for an order directing him to institute an action; had the plaintiff made the propriety or necessity of bringing such an action appear to the court, and that the receiver had refused to commence it, the court would doubtless have compelled him to obey its order, or have removed him, and directed his successor, or perhaps permitted the plaintiff itself, to institute the action. This, however, is a digression.

The order of March 1, 1899, is affirmed.

Affirmed.


text:
    DIETRICH, Appellant, v. MARTIN, et al., Respondents.
    [No. 1,200.]
    [Submitted April 10, 1900.
    Decided May 7, 1900.]

      Attachment — Special Statute — “Noais”—Steam Dredge— Judgment — Invalidity for Want of Jurisdiction — Dedelivery Bond — Action—Nonsuit. -

      Compiled Laws, 1887, Division 1, Title VII., Chapter V., providing that any boat found within the waters of the territory is liable for certain debts and demands, and authorizing attachment of such boat therefor, does not include a steam dredge, with an amalgamator attached, used in mining, though termed in plaintiff’s complaint a ‘‘boat;” and hence where plaintiff recovered a judgment in attachment under such statute against such boat, which was retaken by defendant on a redelivery bond, plaintiff cannot afterwards recover on such bond, since the court was without jurisdiction to render the original judgment.

      Appeal from District Court, Gallatin County; F. F. Armstrong, Judge.

      ' Action by Louis Dietrich against J. E. Martin and another on a redelivery bond given in attachment proceedings. From a judgment in favor of defendants, and an order overruling a motion for a new trial, plaintiff appeals.
    Affirmed.

      Messrs. Luce da Luce, for Appellant.

      Mr. B. Lee Word, and Mr. Bold t B. Smith, for Respondents.
   PER CURIAM.

— In 1891 plaintiff commenced an action in the district court of the Ninth judicial district against a “steam dredge and amalgamator,” an alleged “boat,” described in the complaint as having been used as a steam dredge or shovel, with an amalgamator attached, for dredging streams, and which was at the time of attachment upon the Jefferson river, a nonnavigable stream, in the county of Gallatin, state of Montana. Plaintiff in that action proceeded under Chapter Y of Title YII of the First Division of the Code of Civil Procedure (Compiled Statutes of 1887), relating to the attachment of boats, and their liability for certain debts. Summons and warrant for attachment were issued, and attempted service and levy had upon the said boat, under the statutes just referred to. The defendant gave to the sheriff a bond to discharge the “boat” from the levy, and it was thereupon discharged, as provided for by Section 217 of the law mentioned. On January 28, 1892, judgment was rendered in favor of plaintiff in said action; and, appeal having been taken therefrom to this Court, said appeal was dismissed on March 26, 1894. (Dietrich v. Steam Dredge & Amalgamator, 14 Mont. 261, 36 Pac. 81.) This present action was brought by the plaintiff to recover upon the bail bond which had been given by the defendants for the release of the said “boat.” .One, of the defenses pleaded was want of jurisdiction in the court to render the judgment of January 28, 1892. Upon the trial the district court sustained defendants’ motion for a nonsuit upon the ground, among others, that the complaint in the original action did not state facts sufficient to sustain a judgment against the defendants. Judgment was rendered for the defendants. The plaintiff now appeals from said judgment, and from an order overruling his motion for a new trial.

It is only necessary to pass upon a single point, inasmuch as our opinion thereon will dispose of the case. Chapter V of Title YII of the First Division of the Compiled Statutes of 1887, relating to the attachment of boats, never was intended to apply to a steam dredge and amalgamator used for mining purposes, and called a “boat.” It is entirely clear to us that such a ‘ ‘boat’ ’ is but a piece of mining machinery. The statutes referred to affect the liability of boats having contracts of affreightment, or contracts relative to the transportation of persons or property, and perhaps refer to other water craft used upon the streams and lakes in the state. Plaintiff ought to have proceeded in the ordinary way to secure a debt, and not by invoking a special statute which in no way can be extended to embrace mining implements used in the extraction of the precious metals from the gravel of the state.

Being thoroughly satisfied that the facts stated in ‘ ‘Dietrich v. Steam Dredge & Amalgamator” excluded that case from the provisions of the special statute (Chapter Y, Title YII, Compiled Statutes of 1887) upon which the pleading was drafted, and that the court was without jurisdiction to proceed under said chapter to judgment against the supposed “boat,” the order and judgment appealed from must be affirmed.

Affirmed.


author: PER CURIAM. PER CURIAM.

text:
    FORRESTER & MacGINNISS, Respondents, v. BOSTON & MONTANA CONSOL. COPPER & SILVER MINING CO., a Corporation of Montana, et al., Appellants.
    [No. 1,385.]
    [Submitted April 21, 1900.
    Decided May 7, 1900.]

      Corporations — Receivers—• Order of Appointment— Vacation —Appeal.

    Where a receiver was imposed on a corporation at the instance of minority stockholders, because of its having illegally transferred its stock and property to another corporation, and on motion of the two corporations and their directors to vacate the order appointing the receiver they offered in evidence a deed of reconveyance and bill of sale previously executed, and offered to allow a decree to be entered perpetually restraining the directors from voting for a transfer, and restraining the company from making a transfer, and declaring the reconveyance valid, it was error to refuse to admit the deed in evidence on the ground that Act of Feb. 28, 1899 (Session Laws, p. 146), only authorized consideration of facts existing when an order appointing a receiver was made on an appeal from an order refusing to vacate the appointment.

      Appeal from District Court, Silver Bow County; William Clancy, Judge.

    Suit by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. From an order refusing to vacate an order appointing a receiver, defendants appeal.
    Reversed.

      Messrs. Forbis & Fvans, Mr. William Scallon, Mr. W. W. Dixon, Mr. Ransom Cooper, Mr. William H. De Witt, Mr. William Wallace, Jr., and Messrs. Carpenter do Carpenter; for Appellants.

      Messrs. McHatton & Cotter, Messrs. Clayberg, Corbett do Lee, Mr. RoVt B. Smith, Messrs. Cullen, Day <& Cullen, and Mr. Chas. R. Leonard, for Respondents.
   PER CURIAM.

— The defendants, the Boston & Montana Consolidated Copper & Silver Mining Company, a Montana corporation, the Boston & Montana Consolidated Copper & Silver Mining Company, a New York corporation, and other defendants, appeal from an order of the district court of Silver Bow county, made and entered on the 10th day of April, 1899, by which the said district court denied and overruled a motion of the defendants to vacate and set aside an order made on December 15, 1898, appointing one Thomas R. Hinds receiver for the defendant corporation of Montana. The history of this litigation can be sufficiently well stated for the purposes of the consideration of this appeal by reference to the former opinions of this Court rendered upon the several phases thereof which have been before us in 21 Mont. 544, 565, 55 Pac. 229, 353; 22 Mont. 220, 56 Pac. 219; 22 Mont. 241, 56 Pac. 281; 22 Mont. 376, 56 Pac. 687; 22 Mont. 438, 56 Pac. 865; 22 Mont. 430, 56 Pac. 868; 23 Mont. 122, 58 Pac. 40. The appeal before us was taken pursuant to an act of the legislative assembly approved February 28, 1899 (Session Laws 1899, p. 146), allowing an appeal “from an order appointing or refusing to appoint a receiver, or giving directions with respect to a receivership, or refusing to vacate an order appointing or affecting a receiver. ’ ’ The defendants, on March 1, 1899, filed a motion to vacate the order as stated above. A hearing was ■ had upon the motion, and on April 10th it was denied. At the hearing of the motion to vacate the order of December 15, 1898, the defendants introduced evidence tending to show that the New York corporation had reconveyed and retransferred to the Montana corporation all the property and effects which had theretofore been delivered to the New York corporation, and offered in evidence the deed of reconveyance and the bill of sale dated December 13, 1898, —but not delivered until after the appointment, — by which the transfer was effected. This deed and the bill of sale were produced in court, and tendered in evidence, but were excluded upon the objection of plaintiffs. The defendants, both orally and in writing, made the following offer, which is still open for acceptance, but which the plaintiffs refused to enteftain:

‘ ‘Boston and Montana Consolidated Copper and Silver Mining Company, a Montana corporation, Boston and Montana Consolidated Copper and Silver Mining Company, a New York corporation, Frank Klepetko, John F. For bis and G. M. Hyams, defendants in the above-entitled action, hereby offer and consent to allow judgment and decree to be taken and entered against them forthwith in the above-entitled action perpetually enjoining them, and each of them, from voting, either in person or by proxy, or as proxy or agent or attorney, for any other person, and from allowing to be voted in person or by proxy, any shares of the capital stock of the Boston and Montana Consolidated Copper and Silver Mining Company at any meeting of the stockholders of said company held or to be held, or at all, in favor of selling the whole or any part of the property of said corporation mentioned in Exhibit A. of the complaint to the New York Company, or in favor of any proposition conveying or attempting to convey the mining property of the Montana company to the New York company, or any part thereof; and also perpetually enjoining the said defendant Boston and Montana Consolidated Copper and Silver Mining Company of New York from mining the property mentioned in Exhibit A. of the complaint herein, or carrying on or conducting business therewith, or from mining or extracting ores from the mines or mining claims therein mentioned; also perpetually enjoining said defendants from'conveying or attempting to convey the property of the Montana company described in the complaint to' the New York company; and also ordering and requiring the said New York company to deliver to the Montana company all the property received by it, the said New York company, from the said Montana company, and perpetually enjoining said New York company from using said property or mining or extracting any ores therefrom, or from removing or disposing of any ores, concentrates, or mattes, the product of any such property; also adjudging that the acts of the directors and officers of the Montana company, so far as relate to the sale or conveyance or the attempt to sell or convey the property of the said Montana company to the said New York company, be declared null and void, and that the deed of conveyance heretofore given to the said New York company, by the officers and directors of the said Montana company, and executed in its name, for all the property and rights mentioned or described in Exhibit A. of the complaint herein, which deed is recorded on page 173 of Book No. 29 of Deeds, records of Silver Bow county, Montana, be declared null and canceled; and that the said New York company be forever enjoined from asserting any claim under said deed to said property; also that said New York company be declared to have no right, title, or interest in or to any of the property of the Montana company heretofore at any time conveyed or attempted to be conveyed by said Montana company to said New York company; that said New York company be required and compelled to execute any conveyances or other instruments, and to do any and all acts that may be necessary or proper to be done to reinvest in, or convey or release to, the said Montana company, all title, rights, or claims on the part of the said New York company in or to all and any property conveyed or attempted to be conveyed to said New York company by said Montana company, and to invest said Montana company with the possession and control thereof; also that' the New York company be required and compelled to account to the court fully and entirely for all the property of every kind received by it at any time from said Montana company under any alleged sale or otherwise, and for all proceeds, profits, and property at any time received by it from said Montana company during the time said New York company may have been in possession of said property, or any part of it, or received any profits or proceeds therefrom; also that defendant, the New York company, pay whatever may be found due upon said accounting to the said Montana company; also that plaintiffs have judgment herein for their costs of this suit herein expended to this date. Dated at Butte, Montana, this 5th-day of April, A. D. 1899.,

The court sustained the objection to this offer, and refused to consider it.

The court erred in its refusal to consider the offer of the defendants, and to admit in evidence the deed and bill of sale. Such conveyance, bill of sale, and offer constituted an undoing of the wrongful acts complained of by the plaintiffs, or at least mad § prima facie complete restitution of the property to its rightful owner. This matter is dwelt upon at length in Forrester & MacGinniss v. B. & M. C. C. & S. Mining Co., 22 Mont. 430, 56 Pac. 868, and we need not here repeat what was there said. The objections to the offer and to the introduction of tne deed of conveyance and bill of sale were without merit. If these had been received, it would have been the duty of- the court below, in the absence of some counter showing, to discharge the order of December 15, 1898, appointing the receiver.

It is contended by the plaintiffs that the consideration of any matters happening since the order appointing the receiver was entered was immaterial upon the motion to vacate that order. This position is based upon the assumption that the statute allowing an appeal from an order refusing to vacate the appointment of a receiver permits a review of those facts only which existed when the order of appointment was made, and that the necessary effect of the vacation of an order appointing a receiver is to annul or avoid such order from the beginning — in other words, to destroy the order, and declare void everything done under it. The word “vacate,” however, as employed in the act of February 28, 1899, supra, is not so to be restricted in its meaning, The statute should be understood also as creating the right to appeal from an order refusing to vacate the order of appointment where the motion to vacate is based, not upon the conditions existing when the order was made, but upon facts occuring subsequently to the making of the original order; and in the case of such a motion the vacation of the order appointing the receiver is neither more nor less than the discharge of the order after it has served its purpose. Where the order appointing a receiver is vacated for reasons arising after the appointment was made, the vacation or discharge takes effect as of the day it is entered, and all acts theretofore lawfully performed in pursuance of the appointment are valid.

[Filed June 8, 1900]

The offer made by the defendants, which the court should have required the plaintiffs to accept, renders it unnecessary to continue the receivership for the purpose of an accounting.

The order refusing to vacate the order of December 15, 1898, is therefore reversed, and the cause is remanded, with directions to the court below and its judge to admit the evidence and the offer excluded, and proceed to hear and determine the motion in accordance with the views herein expressed.

Reversed and remanded.

MODIFICATION OF THE FOREGOING OPINION.

PER CURIAM.

— Upon further consideration we are satisfied that no necessity exists for a new hearing in the court below of the application to vacate or discharge the order of December 15, 1898, appointing a receiver for the Boston and Montana Consolidated Copper and Silver Mining Company of Montana. By acceptance of the offer quoted in the opinion, the plaintiffs will obtain all the redress to which they are entitled. Although the deed of conveyance and the bill of sale should have been admitted in evidence, yet the error committed in excluding them does not require the court below further to examine the merits of the application, for the offer made subsequently to the ruling by which the muniments of title were rejected, conceded, and still concedes, to the plaintiffs the right to recover a judgment awarding to them the substantial relief for which they prayed, and obviated the need of continuing the receivership. The duty of the court below was plain and unmistakable; when the offer was made the court should have ordered a judgment to be entered conformable to the terms of the offer, and then discharged the order of appointment. No reason exists for the retention of the receiver, the order appointing such officer having fully performed the purposes to subserve which it was granted.

The last paragraph of. the original opinion is therefore amended so as to read as follows: The order refusing to va-

cate the order of December 15, 1898, is reversed, and the cause is remanded, with directions to the district court to render and cause to be entered a j udgment and decree in favor of the plaintiffs' and against the defendants in conformity to the offer made; and thereupon forthwith to vacate or discharge the order appealed from, such vacation or discharge to take effect as of the date of such judgment so to be rendered and entered, but without prejudice to any right of the receiver to be reimbursed out of the trust estate for any amounts he may have properly expended or become liable to pay, and to be compensated for his services.

Reversed.

Mr. Justice Word takes no part in the foregoing decision.