State v. District Court of Second Judicial Dist.
| Decision Date | 25 May 1903 |
| Citation | 72 P. 613,28 Mont. 227 |
| Parties | STATE ex rel. HEINZE v. DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al. |
| Court | Montana Supreme Court |
Original application by the state, on the relation of Arthur P Heinze, for a writ of mandate to compel William Clancy, as judge of the Second Judicial District Court. Granted in part.
Original application on the relation of Arthur P. Heinze for a writ of mandate to compel William Clancy, as judge of the Second Judicial District Court, to settle a bill of exceptions, and also a statement and bill of exceptions to be used on motion for a new trial. The facts out of which the controversy arises are the following: The relator with others, on August 12, 1899, brought an action in the district court of Silver Bow county against the Parrot Silver & Copper Mining Company. The purpose of the action was to settle a controversy as to the ownership of the Nipper lode mining claim, and in the meantime, and until the action could be determined, to restrain the defendant corporation from extracting and removing ore from the claim. This action was designated on the court calendar as cause No. 8,087. The relator did not allege ownership in the claim, but joined in the action as lessee of the interests owned by the other plaintiffs. While the action was pending, and on March 5, 1900, the relator having himself been enjoined from mining the property in an action brought by the defendant corporation, made application in cause No. 8,087 for the appointment of a receiver to mine the property, and to hold the proceeds pending the action purposing by this means, if possible, to protect his leasehold interest. Upon a hearing of this application the court appointed one Thomas McLaughlin receiver, and on May 16th the receiver entered into possession of the property and operated it until, upon appeal to this court, the order of appointment was reversed. Hickey v. Parrot S. & C. Co., 25 Mont. 164, 64 P. 330. When the cause was remanded to the district court, the receiver ceased operations under the order of appointment, and returned the possession of the property to the plaintiffs in the action. This he did on March 25, 1901. During his operations, covering a period of about 10 months, he filed monthly accounts of his receipts and expenditures with the clerk of the court, but the relator did not at any time make any objection to them in any particular, though it appeared that the operations resulted in loss in the aggregate of $10,342.29. The defendant corporation filed objections to each account. No order was made with reference to them, however, nor were any steps taken to have them settled and a formal discharge of the receiver obtained, until May 28, 1902. On that day, under an order of the court, upon a stipulation by the receiver and the defendant, these accounts were referred to William E. Carroll, Esq., as referee, for an adjustment of the disputed items. Thereafter the referee filed his report overruling all the objections. In the meantime the receiver filed his final report, in which he made a claim for compensation for himself and an allowance for counsel and stenographer's fees. On December 30th an order was made adopting the report of the referee. On January 8, 1903, a hearing was had upon the final report of the receiver and objections made thereto by the relator and his coplaintiffs. The objections presented a controversy as to the amount of the compensation claimed by the receiver, as well as to compensation in any amount for the time subsequent to the date of the remittitur from this court, and as to any allowance for counsel and stenographer's fees covering the same period of time. Evidence as to the value of these services, both of the receiver and his counsel, was admitted over the objections of the relator, and his exceptions were noted. At the conclusion of the hearing, and on January 17th, the court made an order fixing the compensation of the receiver at $16,000, less a payment already made to him of $4,569, and allowing him $10,000 for counsel fees covering the time after the annulment of the order of appointment. An allowance of $125 for stenographer's fees during the same time was also made. The order contained no provision as to whether the plaintiffs or the defendant, or any of them, should be charged with these allowances. Thereupon, and within the time granted by the court for that purpose, counsel for relator prepared and served upon the receiver and the defendant his bill of exceptions. The court granted the receiver time within which to propose amendments, but none were proposed. On April 11, 1903, within the 10 days allowed by the statute, and after service and upon due notice to the receiver and the defendant, the bill was presented to the judge for settlement. Upon objection by the receiver and the defendant, the judge, William Clancy, refused to settle the bill. The refusal was apparently based upon the theory that, if the order was appealable at all, the appeal should have been taken within 60 days from its entry, and, this time having already elapsed without an appeal, the settlement of the bill would be nugatory. On January 19th the receiver, through his counsel, and upon notice to the relator, moved the court for an order directing and requiring the relator to pay the allowances fixed in the order of January 17th. This motion was granted, and on January 31st the court entered an order in the form of a final judgment against the relator for the amount of the allowances, aggregating $21,556, and directing execution to issue therefor. Within 10 days from this date the relator served upon counsel for the receiver and for the defendant in cause 8,087 and filed with the clerk his notice of intention to move for a new trial, setting forth the statutory grounds of motion. Within the time allowed by the court, he served his bill of exceptions and statement in support of the motion upon the defendant and the receiver. These latter proposed no amendments. Thereupon, on April 15th, and within the 10 days allowed after the time for amendments had expired, the bill and statement were, upon notice, presented to the judge for settlement. Objection was made to the settlement on the grounds, first, that the notice of intention had not been given in time; second, that a motion for a new trial was not allowed by the statute; and, third, that, as the 60 days within which an appeal would lie from the order had already expired, and no appeal had been taken, a settlement of the bill and statement would serve no useful purpose. The judge sustained the objection, and declined to make the proper certificate of settlement. Upon the filing of an affidavit setting forth these facts, an alternative writ was issued. The defendant judge appeared, and filed a demurrer raising a legal issue upon the sufficiency of the facts to warrant the relief sought. By consent an answer was also filed, but without waiving the legal issue presented by the demurrer, and, after argument, the matter was submitted.
Jas. M. Denny, for relator.
Kirk & Clinton and H. L. Maury, for respondent.
BRANTLY C.J. (after stating the facts).
The answer presents no material issue of fact. We shall therefore consider the questions raised by the demurrer. These are: (1) Does an appeal lie from the order of January 31st as from a final judgment within one year from the date of entry, and, incidentally, was it the duty of the judge to settle the bill of exceptions presented on April 11th? (2) Under the provisions of the statute, does a motion for a new trial lie in a proceeding to settle the accounts of a receiver and to fix his compensation?
1. Section 1722 of the Code of Civil Procedure, as amended by the act of 1899 (page 146, Sess. Laws 1899), provides Section 1723, as amended by the same act, provides that "an appeal may be taken from a final judgment in an action or special proceeding *** within one year after the entry of judgment," and that an appeal may be taken from any of the orders mentioned in subdivision 2 of section 1722 within 60 days after the same is entered in the minutes of the court or filed with the clerk. Counsel for the defendant insist that, if the order for the review of which the bill of exceptions presented on April 11th is intended to furnish the basis is appealable at all, the appeal must be taken within 60 days from the date of it, and that, as this was not done, the presiding judge may not be compelled to settle the bill, because, the time for appeal having expired, the settlement of the bill would be a useless act. Counsel do not seem to have a clear notion as to whether the order of January 17th or that of January 31st is the one from which the appeal may be taken. The whole proceeding in the court below seems to...
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