Forrester v. Bos. & M. Consol. Copper & Silver Min. Co.

• Decision Date: 14 April 1899
• Court: Montana Supreme Court
• Parties: FORRESTER et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. et al.

22 Mont. 430

FORRESTER et al.

v.BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. et al.

Supreme Court of Montana.

April 14, 1899.

Suit by James Forrester and John MacGinniss against the Boston & Montana Consolidated Copper & Silver Mining Company and others. There was a decree for plaintiffs, and defendants apply for a stay of proceedings pending appeal. Stay granted.

Wm. H. De Witt, Wm. Scallon, W. W. Dixon, Wm. Wallace, Jr., Carpenter & Carpenter, and Ransom Cooper, for appellants.

J. J. McHatton, R. B. Smith, and Cullen, Day & Cullen, for respondents.

PER CURIAM.

Reserving to ourselves the right of elaborating our opinion hereafter, when the appeal is decided ¹ we now outline our reasons for granting defendants' motion for a stay:

In the several phases of this important litigation which have been before this court since the first decision herein (Forrester v. Mining Co., 21 Mont. -, 55 Pac. 229), we have been closely confined in the scope of our examination by those limitations which restricted the inquiry of this court upon prohibition and certiorari to the question of whether or not the lower court exceeded its jurisdiction and authority in the order appointing a receiver for the defendant corporation's property, and directing delivery of the possession thereof to such receiver. Throughout those cases, and the motions thereunder, we have given to the elaborate and frequent arguments and briefs of the many distinguished counsel on the respective sides our undivided attention, moved by an earnest solicitude to reach correct legal results, to the end that the jurisprudence of the state, so far as it has been involved, might be settled, and remain under our action as fixed and stable as the eternal principles of truth which form its basis. So it was that we steadily refused to depart in the slightest degree from the law, as we understood it, and as it has been expounded for generations by the decisions of courts of the highest character, and the comments of the most illustrious jurists, not only of old, but of the present day.

Finally the defendant Montana corporation has assented to the jurisdiction of the lower court, surrendering its property to the receiver; and, instead of longer seeking relief by invoking further extraordinary and original writs at the bar of this court, it now stands in the attitude of an appellant, praying for a stay of proceedings by which its enormous property may not be suffered to remain for operation or management in a receiver's hands, at least until its appeal is heard and determined in this court, and asking for a restitution of its property to its officers and agents until it may be otherwise ordered by this court; and it announces that, if such stay and restitution are granted, it is willing to accept any conditions which may be imposed by way of bond to fully indemnify plaintiffs against possible loss or damage. This change in the remedy pursued carries with it an extension of the relief which may be granted. It opens for examination and for determination not alone the question of the power of the lower court, but it also authorizes us to decide whether that power has been wisely or unwisely exercised in making the order appealed from. It goes even further, in that it gives this court at this time the clear right to grant a stay of proceedings under the order appealed from pending the determination of the appeal, and we are satisfied that, in order to make such a stay effective, this court has full authority to make any order it thinks proper requiring the restitution of the property now possessed by the receiver to the corporation entitled prima facie thereto. Levy v. Goldberg, 40 Wis. 308;Hill v. Finnigan, 54 Cal. 493. To the argument that a stay including an order of restitution is equivalent to a decision that an appeal lies from the original order in the case appointing a receiver, from which an appeal does not lie in this instance, it is a complete answer to say that inasmuch as an appeal does lie, and is conceded to lie, under the legislative act of February 28, 1899, from the order made April 10, 1899, refusing to vacate the order appointing a receiver, the duty of the court is to sustain this right of appeal, and effectuate the relief flowing therefrom. To do this the court is obliged to go into an examination of what showing was made on the application to vacate the order, and to consider such showing, even though it involves a scrutiny of matters which were before the district court when it made the original order appointing the receiver, although from that original order made December 15, 1898, as the law then stood, there was and is no appeal. To hold otherwise would be to nullify the right of appeal from an order refusing to vacate an order appointing a receiver, by confining the investigation to conditions which may have arisen since the enactment of the law affording such remedy. This view would circumscribe the investigation within limitations not expressed or implied in any fair construction...