Cotter v. Cotter

• Citation: 40 P. 63,16 Mont. 63
• Parties: COTTER v. COTTER et al.
• Decision Date: 15 April 1895
• Court: Montana Supreme Court

40 P. 63

16 Mont. 63

COTTER v. COTTER et al.

Supreme Court of Montana

April 15, 1895

Appeal from district court, Silver Bow county; W. O. Speer, Judge.

Action by Daniel P. Cotter against Julia Cotter and others. From a judgment for defendants, plaintiff appeals. Affirmed.

Waldron & Campbell and Shropshire & Burleigh, for appellant.

PEMBERTON, C.J.

This is an action for an accounting, and for the cancellation of certain deeds to real estate. The plaintiff also asks for an injunction restraining the defendants from transferring or disposing of the property mentioned in the complaint, and for the appointment of a receiver pendente lite. On the filing of the complaint the court issued a temporary restraining order. The defendant Julia Cotter filed her answer, denying all the allegations of the complaint, and containing affirmative allegations showing plaintiff had no interest in any of the property mentioned in the complaint. The Laytons demurred to the complaint. Plaintiff filed no replication to the new and affirmative matter contained in the answer of Julia Cotter. Upon a hearing to show cause why a receiver should not be appointed, and upon a motion to dissolve the temporary restraining order which had been issued in the cause, the court refused to appoint a receiver, and dissolved said temporary restraining order. From this action of the court the plaintiff appeals. The order of the court refusing to appoint a receiver is not appealable. Code Civ. Proc. § 444; Wilson v. Davis, 1 Mont. 98; Stebbins v. Savage, 5 Mont. 253, 5 P. 278. There were no affidavits filed or proofs taken in support of the application for an injunction. In refusing to issue an injunction, or ordering the dissolution of the temporary restraining order, the court had before it the complaint and answer, both verified. Acting upon these pleadings alone, which were doubtless treated as the affidavits of the respective parties, we are unable to discover any abuse of discretion on the part of the court in the action complained of in this particular. The granting or refusing of an injunction is a matter of discretion in the court, dependent upon the facts of the case. See Mining Co. v. Murray, 9 Mont. 475, 23 P. 1022, and cases cited; Klein v. Davis, 11 Mont. 155, 27 P. 511. There being no error shown in the action of the court below, the judgment is affirmed. Affirmed.

DE WITT and HUNT, JJ., concur.