Maloney v. King

• Decision Date: 05 May 1902
• Parties: MALONEY et al. v. KING et al.
• Court: Montana Supreme Court

68 P. 1012

26 Mont. 487

MALONEY et al. v. KING et al.

Supreme Court of Montana

May 5, 1902

Appeal from district court, Silver Bow county.

Action by James H. Maloney and others against Silas F. King and others. From an order restraining defendants from entering or mining on a certain claim, they appealed. Application for stay of proceedings pending appeal. Denied.

See 64 P. 351.

McBride & McBride, for appellants.

C. P Drennen and McHatton & Cotter, for respondents.

PIGOTT J.

The defendants have appealed from an injunction order pendente lite, entered on the 1st day of March, restraining them from entering or mining in part of a certain lode claim, title to which is asserted by the defendants, and from commencing any suit against the plaintiffs with reference to the carrying on of mining, or the breaking or removal of ore therefrom by the plaintiffs, and from interfering with them in the mining transportation, and disposal of such ores. In form the injunction is prohibitory. They now apply to this court for an order staying the order appealed from, and all proceedings thereunder, pending the appeal.

Section 21 of the Code of Civil Procedure has to do with the determination by the supreme court of causes on appeal, and not with its powers pending appeal. Section 23 of the same Code declares that 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 refusing or dissolving an injunction. No provision of either section is pertinent. The appellants seem to base their application upon subdivision 3 of section 1723 of the Code of Civil Procedure, as amended in 1899 by House Bill No. 124 (Laws 1899, pp. 146, 147), and to rely upon authority supposed to be conferred thereby. We shall treat the application as based upon the subdivision cited. Section 1722, as amended by the same bill, contains similar language. This subdivision provides, among other things, that on appeal from an order granting or refusing a new trial, or granting, dissolving, or modifying an injunction, or refusing to grant, dissolve, or modify an injunction, or dissolving or refusing to dissolve or modify an attachment, or 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, or directing the delivery, transfer, or surrender of property, or from any special order made after final judgment, or from an interlocutory judgment or order in actions for partition of real property, or from an order confirming, changing, modifying, or setting aside the report in whole or in part of referees in such actions for partition, the supreme court or a justice may, pending the appeal, "stay all proceedings under the order appealed from, on such conditions as may seem proper." It prescribes some, at least, of the powers which the supreme court may, in a suitable case, exercise during the time an appeal is pending. Notwithstanding the generality of the language, the provision quoted is not applicable to all the orders enumerated in subdivision 3, supra. It applies only to orders under which proceedings are to be, or may be, taken.

The respondents contend that the order appealed from in this case simply restrains the appellants from doing certain acts,--requiring inaction of them; and that the respondents are not commanded or permitted to do anything by virtue of the order. There are therefore, as they argue, no proceedings to be taken under the order; hence, they say, an arrest or stay of proceedings, the order being self-executing, could serve no purpose. On the other hand, the appellants insist that the injunction, though prohibitory or restrictive in form, is in part mandatory in effect, asserting that they were in possession of the property which they are enjoined from entering, and that the practical operation of the order in so far as it restrains them from entering, is to eject them. If this be the correct interpretation, the appellants in virtue of section 1733 of the Code of Civil Procedure, have already secured a stay of proceedings by perfecting the appeal. For example, the injunction could not be used to oust them from the property in their possession at the time it was granted, nor would they be in contempt for remaining in possession; and so in respect of any mandatory feature of the order. For the appellants to remain...