93 P. 350 | Mont. | 1908
delivered the opinion of the eonrt.
The above-entitled matter was in this eonrt once before, on the appeal of Mary D. Forbis, as administratrix. (Forbis, Admx., v. Cannon et al., 35 Mont. 424, 90 Pac. 161.) The mature of the proceeding is explained in the opinion, wherein ithe court said: “We decide that, under the issues raised and tried in the district court, John A. Cannon, the holder of the legal title to the land taken, was prima facie entitled to the money that was ordered paid to him, and affirm the order appealed from. We do not decide whether or not it is an appealable order, because that question is not presented in the briefs of counsel. Also, upon the question as to the jurisdiction of the district court to determine the rights of the respective claimants to this money in a summary manner, we express no opinion.”
It appears from the record that O. E. Kenyon filed an answer to the petition of Cannon and wife, substantially the same as that of Mary D. Forbis, as administratrix, and he now appeals from the same order from which she appealed. Perhaps, in view of the fact that the language employed in the last sentence of the former opinion may have led the present appellant to believe that upon that appeal the question was given no consideration at all, it is advisable to add something to what was said in Forbis v. Cannon. The money was deposited in court by the Chicago, Milwaukee and St. Paul Railway Company of Montana as payment for one hundred and five lots in the city of Butte, the legal title to which was vested in John A. Cannon, as trustee. We held, in effect, that the so-called answers to the Cannon petition set forth no reason why the money should not be paid to Cannon as the person entitled thereto. In other words, no question was raised but that Can
We suppose there is no question that a trustee is entitled to the possession of the trust estate. How, otherwise, could he be charged with, and required to account for, the samel That is this case. The appellant’s so-called answer requested the court to try, on motion, the question whether Cannon had been faithful, or otherwise, to his trust. In fact, it requested the court to try, on motion, the issues involved in the action brought to remove him. If the appellant desired to have this money safeguarded so that Cannon could not dissipate the same, he should, by some appropriate proceeding in the action for an accounting, have invoked the power of the court having jurisdiction in that case to preserve the fund until the final determination of that action. We indulge in the foregoing remarks upon the merits of this matter, because appellant appears to misconstrue the former decision of this court.
Respondents have moved to dismiss the appeal, for the reason that the order appealed from is not an appealable one. That order is not a special order made after final judgment. Neither is it an order directing the delivery, transfer, or surrender of property such as is referred to in section 1722 of the Code of Civil Procedure, as amended by Laws 1899, page 146. The order had no connection with the cause in which it was entitled.
It is only in eases where no dispute arises as to who is entitled to the money that the district court has power to entertain a motion to direct the clerk to pay it over. In this case the so-called answers raised no such issue, and the matter stood as though they had not been interposed. Therefore, the court made the order. But it was not appealable, first, because it was not a special order, made after final judgment, such as is contemplated by the Code; and, second, because the appellant was not aggrieved thereby, his rights under the trust agreement remaining in statu quo.
The appeal is dismissed. Dismissed.