State v. Langan

• Decision Date: 26 September 1907
• Docket Number: 1,737.
• Citation: 91 P. 737,29 Nev. 459
• Parties: STATE ex rel. BOTSFORD v. LANGAN, District Judge.
• Court: Nevada Supreme Court

91 P. 737

29 Nev. 459

STATE ex rel. BOTSFORD v. LANGAN, District Judge.

No. 1,737.

Supreme Court of Nevada

September 26, 1907

Mandamus by the state, on the relation of Charles H. Botsford, against Frank P. Langan, district judge of the First judicial district. Application dismissed.

Hall Thayer & Steele and C. L. Harwood, for relator.

Detch Carney & Stevens, for respondent.

SWEENEY J.

This is an application for a writ of mandamus against Frank P Langan, district judge of the First judicial district of the state of Nevada, for the purpose of compelling him to hear a motion to dissolve or modify an injunction or increase the injunction bond in the case now pending in the district court of the First judicial district of the state of Nevada in and for the county of Esmeralda, entitled "I. C. Van Riper and Joseph H. Hutchinson, Plaintiffs, v. Charles H. Botsford James Davis, J. P. Loftus, and James Davis, Doing Business under the Firm Name and Style of Loftus & Davis, Goldfield Mohawk Mining Company, Goldfield Consolidated Mines Company Combination Mines Company, George S. Nixon, and George Wingfield, Defendants."

It appears from the record in this case that the plaintiffs filed a complaint against the above-named defendants for the purpose of recovering from said defendants a two-thirds interest in 100,000 shares of the capital stock of the Goldfield Consolidated Mines Company of Nevada of the approximate value of half a million dollars. Upon filing of the complaint, an injunction was secured from the district court on a bond in the sum of $15,000, enjoining the defendants from delivering to their codefendant Botsford the said stock in question until the determination of this suit. Upon the petition of the defendant Botsford for the removal of said cause to the Circuit Court of the United States in and for the Ninth District of Nevada, the district court of Esmeralda county remanded said case to said United States Circuit Court on or about the 1st day of February, 1907, and thereafter, to wit, on the 12th day of June, 1907, the said United States Circuit Court remanded said cause back to the said district court in and for Esmeralda county for trial. Subsequent to February 1, 1907, when said order of renewal was made from the said state court to the United States Circuit Court and prior to June 12, 1907, when the order remanding said cause from said United States Circuit Court back to said district court was entered, to wit, on the 6th day of March, 1907, and while said cause was pending on removal in said United States Circuit Court, the plaintiffs caused to be issued an alias summons out of the said state court, and caused said alias summons to be served by the sheriff of Esmeralda county upon said Chas. H. Botsford, the relator herein, on or about the 7th day of March, 1907, and on the 12th day of June, 1907, the plaintiffs, through their attorneys, caused the default of said Charles H. Botsford and others of the defendants to be entered by the clerk of the said district court of Esmeralda county. On or about the 7th day of June, 1907, said Charles H. Botsford filed in said cause in said state district court a motion to vacate and set aside said default, and on the 29th day of June, 1907, after hearing arguments upon said motion, Judge Langan, district judge of said state court, entered an order vacating and setting aside the said default, and thereafter, to wit, on the 6th day of August, 1907, plaintiffs perfected an appeal to this court from said order setting aside said default. Upon the 2d day of August, 1907, the relator herein, through his attorneys, served upon the attorneys for said plaintiffs Van Riper and Hutchinson a notice that on Monday, the 12th day of August, at the county courthouse of Lyon county, Nev at the town of Dayton, in said county, they would apply to the Honorable F. P. Langan, the respondent herein, judge of the First judicial district court aforesaid, to hear a motion to dissolve or modify...