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

• Decision Date: 10 July 1899
• Parties: FORRESTER et al. v. BOSTON & M. CONSOL. COPPER & SILVER MIN. CO. et al.
• Court: Montana Supreme Court

58 P. 40

23 Mont. 122

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

Supreme Court of Montana

July 10, 1899

Action by James Forrester and another against the Boston & Montana Consolidated Copper & Silver Mining Company and others. Original proceeding by certain of defendants for leave to prove exceptions. Denied.

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

Cullen Day & Cullen, R. B. Smith, Clayberg & Corbett, and McHatton & Colter, for respondents.

PIGOTT J.

This is an original proceeding for leave to prove certain exceptions which the petition states the judge of the Second judicial district court has refused to allow in accordance with the facts. The petitioners are the Boston & Montana Consolidated Copper & Silver Mining Company, John F. Forbis, G. H. Hyams and Frank Klepetko, the answering defendants in Forrester v. Mining Co., several phases of which case have been before this court in 21 Mont. 544, 55 P. 229; 21 Mont. 565, 55 P. 353; 22 Mont. --, 56 P. 219; 22 Mont. --, 56 P. 281; 22 Mont. --, 56 P. 687; 22 Mont. --, 56 P. 865; 22 Mont. --, 56 P. 1135, 868. The petition purports to be drafted under the provisions of section 1157 of the Code of Civil Procedure, and of subdivision 14 of rule 4 (44 P. vi.), now rule 5, of this court. It appears that the petitioners moved the district court to vacate the order of December 15, 1898, appointing a receiver for the property of the defendant company, and to discharge him; that a hearing was had in obedience to the mandate of this court (State v. Second Judicial District Court, 22 Mont. --, 56 P. 865); that on April 10, 1899, the court denied the motion, and defendants appealed to this court (Forrester v. Mining Co., 22 Mont. --, 56 P. 1134, 868), where the cause is now pending. It further appears that the defendants served a draft of their bill of exceptions, to which plaintiffs proposed 10 amendments. Upon presentation for settlement, the judge allowed nine of the amendments, besides making an addition of his own, and ordered that the bill, as so amended, be engrossed and settled. Four of the amendments allowed are asserted to be discordant with the proceedings had upon the hearing of the motion, and one is said to be contrary to the facts attending the making of the order appealed from. Defendants therefore contend that the judge refused to allow their exceptions in accordance with the facts, and pray that the facts touching the matters to which the amendments are directed, and the refusal of the judge to allow the bill as presented, may be proved and certified under the provisions of section 1157 and the rules of this court. A referee was appointed ex parte, and without notice to the plaintiffs, and he has reported the testimony taken by him in support of the petition.

The petition must be dismissed upon the ground that the amendments allowed are immaterial. Hence we do not consider or decide, but expressly reserve, all questions which might arise, were the amendments material, in respect of the power and right of the supreme court, under section 1157 and rule 5, to alter or remodel a bill of exceptions allowed by the trial judge; nor, on the present application, is it necessary either to interpret or construe the section. The avowed purpose of incorporating the amendments was to show that the defendants, and particularly the Boston & Montana Consolidated Copper & Silver Mining Company, were in contempt of the district court during the hearing of the motion, and at the time it was denied. For example, the bill, as presented for settlement, contains a copy of the order appealed from, which merely overruled and denied the motion to vacate the appointment of the receiver. In passing, we may say that there was no necessity of including the order in the bill, for it is deemed excepted to, no bill of exception is required, and it may be presented as part of the record proper by a copy certified as correct by the clerk. The amendment proposed and allowed in that regard sets out that "the court refused to grant the motion to discharge the receiver upon the ground and for the reason that the defendants in the case had refused to comply with the court's order contained in the order appointing the receiver, and had resisted and violated the same, and that the said defendants stood charged with contempt of this court, and therefore were not entitled to be heard or to have said motion granted, and thereupon said court overruled said motion," to which the judge directed to be added...