State ex rel. Lloyd v. District Court of Third Judicial Dist. in and for Deer Lodge County
| Decision Date | 22 October 1937 |
| Docket Number | 7726. |
| Parties | STATE ex rel. LLOYD et al. v. DISTRICT COURT OF THIRD JUDICIAL DIST. IN AND FOR DEER LODGE COUNTY et al. |
| Court | Montana Supreme Court |
Rehearing Denied Nov. 13, 1937.
Application by the State, on the relation of Charles F. Lloyd and another, for a writ of prohibition against the District Court of the Third Judicial District in and for Deer Lodge County the Honorable R. E. McHugh, judge thereof, and others.
Writ denied, and proceeding dismissed.
M. S Galasso, of Butte, for appellant.
J. F Emigh and R. Lewis Brown, both of Butte, for respondents.
This is an application for a writ of prohibition. Relators Charles F. Lloyd and Alonzo H. McCertney seek to prohibit and restrain the District Court of Deer Lodge County from hearing and deciding a contempt proceeding on the merits, and also to prohibit and restrain receivers heretofore appointed by that court from obtaining possession or title to certain mining claims mentioned in the receivership and contempt proceedings.
Briefly summarized, the affidavit for the writ details the following facts: That relators are the owners and were in possession of certain mining claims; that a receivership action was commenced in Deer Lodge County by a majority stockholder against the National Beston Montana Mines Corporation and two other affiliated corporations; that relators were also named as defendants along with certain officers of the respondent company; and that on November 2, 1936, a temporary receiver was appointed by the court for all of the companies' property as listed and described in the exhibit attached to the order of appointment.
On November 25, 1936, relators filed a demurrer to the complaint in the receivership matter, but the demurrer never came on for argument or decision. On March 31, 1937, an order was made discharging the temporary receiver and appointing permanent receivers in the same proceeding. The permanent receivers were directed to take over all property and assets theretofore in the hands or possession of the temporary receiver, and to take into their possession all of the property and assets of every kind and description belonging to the defendants. On the same day the receivership action was ordered dismissed as to the relators.
It is then recited that the defendant corporation, owner of the assets in receivership, had no right or ownership in the mining property claimed by relators, except the right to receive a mining deed of conveyance in return for the performance of certain conditions contained in an agreement with defendant corporation's trustee. This agreement related to an account stated for wages due relators from the company. It is further recited that relators had peaceable possession of the mining claims until the receivers trespassed, which trespass was resisted, resulting in the ousting of the receivers from the property; that permission was then given relators by the court to sue the receivers concerning the property and the claims for money due, and that on July 7, 1937, a suit was instituted in Silver Bow County by relators against the defendant corporation, its trustee and the receivers. This suit was for wages and expenses and money advanced to the corporation, and is still pending. On the next day, July 8, 1937, relators filed a suit against the corporation and its receivers in the district court of Beaverhead County, wherein the mining property is situated, for the purpose of quieting title to the mining claims in controversy. A temporary injunction was therein issued and served upon the defendants, respondents here, restraining the receivers from interfering with the possession of relators.
On July 12, 1937, an affidavit was filed in the receivership proceeding in Deer Lodge County, and an order and citation for contempt issued and was served upon relators. The affidavit charged that the receivers had taken peaceable and absolute possession of the mining claims involved and held the same until ousted and dispossessed by relators. The relators appeared in conformity with the command of the court and entered separate motions to quash the citation. The grounds upon which the motions to quash were made were several, but chiefly to the effect that the court did not have jurisdiction, insufficiency of the affidavit which contained the charge of contempt, and that the affidavit was ambiguous, uncertain, and unintelligible. The motions were presented to the court and, apparently, were argued. They were evidently considered by the court as having the effect of demurrers. The view of the court was correct. Compare State ex rel. State Publishing Co. v. Hogan, 22 Mont. 384, 56 P. 818. The motions were overruled and relators were directed to file their answer and be ready for trial of the contempt proceeding within the time fixed by the court. No answer was filed, but, instead, relators obtained an alternative writ of prohibition from this court temporarily restraining the district court from proceeding.
The affidavit filed herein recites that, after the judge had ruled on the motions to quash, he stated that if upon the hearing of evidence in the contempt proceeding it appeared that relators had acquired the mining property by relocation while they were the employees of one of the corporations named in the receivership proceedings, he would not deem such rights of location and consequent possession of any force or effect, but would find relators guilty of contempt and punish them accordingly. We must assume that the court meant to say that he would find them guilty if the charges were otherwise proven, regardless of that fact.
In effect the judge said that he would not recognize the relocation and possession of relators in such circumstances as a substantial defense to the charge of contempt, which was that the relators had unlawfully and in defiance of the receivership orders dispossessed the receivers and taken and held possession of the mining property.
In view of this state of the record, and because of the statement of the judge, relators urged that the judge had disqualified himself, and they tried to prevail upon him to call in another judge to hear the contempt proceeding. The judge did not agree with relators' contention and refused to disqualify himself.
This application seeks to prevent the judge from proceeding further in the contempt matter. It is asserted by relators that the District Court is without jurisdiction to try them for the alleged contempt because the matter involves the ownership of property claimed by the receivers, on the one hand, as the property of the corporation, and by relators, on the other, as their property.
Separate motions to quash and answers were filed here. It is not necessary to discuss the specific grounds therein urged, but it is sufficient to say that they directly and emphatically challenge the position taken by relators.
It is, of course, elementary that title to property cannot be tried in a contempt proceeding. 53 C.J. § 138, p. 115; 1 Clark on Receivers (2d Ed.) § 631, p. 860; High on Receivers (4th Ed.) § 172, p. 204; Strain v. Superior Court, 168 Cal. 216, 142 P. 62, Ann.Cas.1915D, 702. The ownership of the property in this instance was not a proper subject of controversy in the contempt matter. The record discloses that the gist of that proceeding and the issue there involved was possession, as distinguished from ownership. See 2 Tardy's Smith on Receivers, § 775, p. 2089.
Some contention was made that the receivership proceedings were not specific enough in the description of property to warrant the receivers in taking possession of the particular property under the authority of the court. A careful reading of all the record in the receivership proceedings convinces us that this point cannot be sustained.
The decision of the last-mentioned point carries with it another fundamental and elementary proposition, which is that, when the court issued...
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