Appeal
from district court, Silver Bow county; E. W. Hamey, Judge.
Action
by Miles Finlen against F. Augustus Heinze and others. From a
judgment in favor of defendants, plaintiff appeals, and asks
for an injunction to preserve the subject to litigation
pending appeal. Injunction granted.
This is
an action in the nature of ejectment, in which the plaintiff
seeks to recover possession of the Minnie Healy lode mining
claim, situate in the Summit Valley mining district, Silver
Bow county, together with damages for ores removed therefrom
by the defendants. Pursuant to an application made at the
time the action was brought, and after a hearing thereon, the
district court issued an injunction to prevent the removal of
ore from the property pendente lite. The defendants, in their
answer, denied that Finlen had any title to or interest in
the property, or any right to the possession of it; asserted
title in themselves as against him; and demanded a decree
against him requiring and directing him to assign to the
defendant F. Augustus Heinze certain bonds and leases held by
Finlen from the original owners of the claim, the said Heinze
claiming to be entitled to such assignment by virtue of an
agreement entered into between himself and Finlen, the
conditions of which had been fully kept and fulfilled by
Heinze. Upon the trial of the cause the district court found
upon all the issues in favor of the defendant, and entered a
decree accordingly. The decree enjoins the plaintiff from
asserting any right to the claim by suit or otherwise, and
from interfering in any way with the possession of the
defendants. It also contains the following provisions
"It is further ordered, adjudged, and decreed that if
the plaintiff file herein within five days hereafter an
additional undertaking on injunction in favor of the
defendants F. Augustus Heinze and the Johnstown Mining
Company inthe sum of fifteen thousand dollars, which amount
may be increased in the discretion of the court, the court
retaining jurisdiction therefore (jurisdiction with reference
to the injunction and all matter pertaining thereto being
retained by the court on the motion and application of the
plaintiff herein), conditioned as required by law, and to pay
the said defendants any damages' which they may have
sustained by reason of the issuance of the restraining order
and injunction herein or the continuance thereof, that the
temporary injunction herein be continued restraining and
enjoining all of the defendants from mining, carrying away
or converting to their own use any ores or minerals from said
Minnie Healy lode claim until the determination of any appeal
which may be taken by the plaintiff to the supreme court from
this judgment and decree, or until the further order of this
court herein; provided, that said injunction shall not
restrain or enjoin said defendants from doing any work or
timbering in said claim, orin the openings therein, or the
veins belonging thereto, which may be necessary to the proper
care and preservation thereof; all ores taken out in doing
same to be stores in or on said claim. If said plaintiff
shall not give said additional undertaking as herein
required, then the said restraining order and injunction
shall thereupon be and become vacated and dissolved. It is
further ordered, adjudged, and decreed that, if the
defendants F. Augustus Heinz, and the Johnstown Mining
company shall hereafter file herein an undertaking to the
plaintiff in the sum of seventy-five thousand dollars
subject to be increased in the discretion of the court, with
two or more personal sureties, or with one surety company
authorized to do business in the state of Montana, such
undertaking to be approved by the judge of this court, and
conditioned that said defendants will pay to the plaintiff
the net value of all ores which may thereafter and during the
pendency of such appeal or until the further order of this
court herein be mined, carried away, or converted by them
from said Minnie Healy lode claim, and also all damages and
loss sustained by him by reason of the stay of the
restraining order and injunction herein and herein ordered
if it shall be finally adjudged ordetermined in this action
that the plaintiff is entitled to prevail or recover a
judgment herein, then said restraining order and injunction
shall be and the same is hereby, stayed as against the said
defendants until the determination of such appeal by the
supreme court, or until the further order of this court
herein; and said restraining order and injunction shall not,
in that event, operate or be effective, after the giving or
approval of the said undertaking, to restrain or enjoin said
defendants F. Augustus Heinze or the Johnstown Mining Company
from mining, extracting, carrying away, or converting to
their own use the ores and minerals from said Minnie Healy
lode claim and the veins belonging thereto during the
pendency of such appeal, or until the further order of this
court made herein that reference to said restraining order
and injunction." The plaintiff thereupon appealed from
the judgment and decree and from an order denying him a new
trial. Upon filing the transcript in this court the plaintiff
presented his petition, supported by affidavits, setting
forth that the defendants had given the undertaking provided
for in the decree, were engaged in mining the property in
controversy and removing therefrom and converting to their
own use valuable ores to the amount of not less than 400 tons
per day, and that, as their mining operations progressed, and
as all the valuable ore was removed from the various workings
in the property from time to time, the defendants were
destroying the said workings in order to prevent the
plaintiff from ascertaining the amount and value of the ores
removed therefrom in case he should finally obtain a judgment
against the defendants in this action. Upon the showing thus
made relief is demanded from this court by way of injunction
to preserve the property pending a determination of the
appeal. At a hearing had in this court the
defendants filed counter affidavits denying all the charges
made as to the destruction of the workings in the property,
but admitting that they were mining and removing ores as
alleged by the plaintiff.
BRANTLY
C.J. (after stating the facts).
The
application presents three questions for determination: (1)
Whether this court has power to grant the relief demanded;
(2) whether, if it has, the facts shown justify its
interference; and (3) Whether the plaintiff, by asking the
trial court to retain jurisdiction of the case for the
purpose of protecting the property pending the appeal, has
foreclosed his application to this court for that purpose.
1. For
answer to the first question reference must be had to the
sections of the constitution containing the grant of
appellate power to this court, and the provisions of the Code
of Civil Procedure enacted in pursuance of them. This grant
iscontained in sections 2 and 3 of article 8, which declare:
"Sec.
2. The supreme court, except as otherwise provided in this
constitution, shall have appellate jurisdiction only, which
shall be co-extensive with the state, and shall have a
general supervisory control over all inferior courts, under
such regulations and limitations as may be prescribed by
law.
"Sec.
3. The appellate jurisdiction of the supreme court shall
extend to all cases at law and in equity, subject, however,
to such limitations and regulations as may be prescribed by
law. Said court shall have power in its discretion to issue
and tohear and determine writs of habeas corpus, mandamus,
quo-warranto, certiorari, prohibition and injunction, and
such other original and remedial writs as may be necessary
or proper to the complete exercise of its appellate
jurisdiction."
The
provisions of the Code of Civil Procedure referred to,
omitting parts not pertinent to this case, are the following:
"Sec.
21. The supreme court may affirm, reverse or modify any
judgment or order appealed from, and may direct the proper
judgment or order to be entered, or direct a new trial or
further proceedings to be had. *** Its judgment in appealed
cases must be remitted to the court from which the appeal
was taken."
"Sec.
23. The supreme court may continue in force an injunction
order made by a district court, or judge, or grant an
injunction order and writ pending an appeal to the supreme
court from an order of a district court, or judge, refusing
or dissolvingan injunction, upon such terms and under such
rules as the supreme court may establish. No action to
obtain an injunction must be commenced in the supreme
court, except in cases where the state is a party, or in
which the public is interested, or the rights of the public
are involved, but the proper district court has
jurisdiction of all injunctions, and the commencement of
all actions therefor, except as in this section
provided."
Reference
must be had also to sections 1722 and 1723, as amended by the
act of the legislative assembly of 1899 (page 146). These
enumerate the judgments and orders from which appeals lie,
and provide when they may be taken. Subdivision 2 of the
former provides that this court, or any one of its justices,
may stay any of the orders enumerated therein.
The
defendants argue that the constitutional grant of appellate
power also expressly authorizes the legislature to impose
limitations upon it, and to provide regulations under which
it may be exercised, and that, as these...
