27 Mont. 107 | Mont. | 1902
Lead Opinion
after stating tbe case, delivered tbe opinion of tbe court.
Tbe application presents three questions for determination: (1) Whether this court bas power to grant tbe relief demanded; (2) whether, if it bas, the facts shown justify its interference; and (3) whether tbe plaintiff, by asking tbe trial court to retain jurisdiction of the case for tbe purpose of protecting tbe property pending tbe appeal, bas foreclosed bis application to this court for that purpose.
1. For answer to tbe first question reference must be bad to tbe- sections of tbe constitution containing’ tbe grant of appellate power to this court, and tbe provisions of tbe Code of Civil Procedure enacted in pursuance of them. This grant is contained in Sections 2 and 3 of Article NTH, which declare:
“Sec. 2. Tbe supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with tbe state, and shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law.
“Sec. 3. Tbe appellate jurisdiction of tbe supreme court shall extend to all cases at law and in equity, subject, however,, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo-ivamnto., certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to tbe complete exercise of its appellate jurisdiction. * *
Tbe provisions of tbe Code of Civil Procedure referred to, omitting parts not pertinent to this case, are tbe following:
“Sec. 21. Tbe supreme court may affirm, reverse or modify any judgment or order appealed from, and may direct tbe proper judgment or order to be entered, or direct a newl trial or further proceedings to be bad. * * * Its judgment in appealed cases must be remitted to tbe court from! which tbe appeal was taken.”
“Sec. 23. Tbe supreme court may continue in force an in*113 junction order made by a dictrict court, or judge, or grant an injunction order and writ pending an appeal to the supreme court from an order of the district court, or judge, refusing or dissolving an injunction, upon such terms and under such rules as the supreme court may establish. No action to obtain an injunction must be commenced in the supreme court, except in cases where the state is a party, or in which the public is interested, or the rights of the public are involved, but the proper district court has jurisdiction of all injunctions, and the commencement of all actions therefor, except as in this section provided.”
Reference must be had also to Sections 1722 and 1723, as amended by the Act. of the legislative assembly of 1899 (page 140). These enumerate the judgments and orders from which appeals lie, and provide when they may be taken. Subdivision 2 of the former provides that this court, or any one of its justices, may stay any of the orders enumerated therein.
The defendants argue that the constitutional grant of appellate power also expressly authorizes the legislature to impose limitations upon it, and to provide regulations under which it may be exercised, and that, as these statutory limitations and regulations have been enacted by the legislature, this court must look to them exclusively for authority to act upon this and all similar applications through which relief is sought pending an appeal. In other words> Section 21, supra, only authorizes the court upon final hearing to affirm, reverse or modify a judgment or order of the trial court. Section 23 permits this court to issue an injunction when one has been refused by the district-court, or to continue one in force which has been dissolved. Section 1722 authorizes the grant of a stay of any of the interlocutory orders enumerated when such relief is appropriate. It therefore follows, from an application of the principle “ex-pressio unius est exclvsio alterius ” that this court can grant no other relief in aid of its appellate jurisdiction than that permitted by these specific statutory provisions. We cannot assent to the proposition that the legislature can thus limit and control the power vested in this court by the constitution, or that it has attempted to do so by the enactment of any of these provisions.
The clause, “subject to such limitations and regulations as may be prescribed by law,” contained in Section 3, — a substantial equivalent of the limitation clause in Section 2, — must be read in connection with the preceding clause, which embodies the grant, and such imfport be given to it as will permit the court to retain the power vested in it, as a distinct department of the government, with its own peculiar and appropriate functions, and at the same time preserve the right guarantied to the litigant. The word “limitations,” in its ordinary legal and popular sense, refers to the time within which an action may be brought, or some act done, to preserve a right. In this sense it implies power in the legislature to enact reasonable provisions-fixing a limit to the time within which an appeal from a final judgment may be prosecuted. This the legislature has done in the enactment of Section 1123, supra, after recognizing' the right of appeal in Subdivision 1 of Section 1122. But we think that, as here used, the term has a somewhat broader meaning. It refers also to the powier of the legislature to provide for appeals from interlocutory or intermediate orders and decisions, and, in its discretion, to direct that such appeals shall be taken and entertained prior to final judgment, and- that, unless they are so taken, the court may not review such orders upon appeal from the final judgment. This has been done by the provisions contained’in Subdivision 2 of Section 1722, Subdivision 3 of Section 1723, and Section 1742; for the first two-sections enumerate the interlocutory orders from which appeals lie, dnd fix the time in which they may be taken] while the latter declares that upon appeal from a final judgment the court “may review " * * any intermediate order or decision excepted to, -which involves the merits, or necessarily affects the judgment,” except one from which an appeal might have been taken. Necessarily, the grant of the power to the legislature to provide for appeals from interlocutory orders implies the power to withhold the right to them. These provisions, taken together, are limitations not only as to the time within
So tbe word “regulations” refers to tbe establishment- of tbe procedure by means of wbicb tbe power may be set in motion, and in obedience to wbicb it may be exercised. It is only in this qualified sense that an appeal from a final judgment is a creature of tbe statute. Appeals from interlocutory or int-eram-diate orders, as a special and independent method of obtaining relief, are not based upon a constitutional- guaranty. They are, therefore, subject to just such limitations, both as to tbe particular class or classes of orders from wbicb they lie, and as to-tbe time in wbicb they may be taken, as well as to tbe extent of tbe relief wbicb may be granted, as tbe legislature may impose. Tbe legislature may also regulate tbe procedure to be observed, and tbe rules provided by it must be tbe exclusive guide. In this sense these appeals are exclusively creatures of tbe statute. We do not mean to say that the legislature may, by unreasonable limitations and regulations, or by nonaction, destroy or render ineffective tbe power of this court to- review interlocutory orders; for, notwithstanding independent appeals from them may not be provided for, errors in miaking them may be
None of the provisions of the statute^ supra, nor any others, undertake to limit the auxiliary powers of this court upon appeal from a final judgment. All of the sections cited, except Section 21, in so far as they attempt to fix limitations beyond those already noticed as to the matter of time and the mode of procedure, refer exclusively to appeals from interlocutory orders and orders made after final judgment, and the relief which may be granted in aid of them. Section 21 does not undertake to fix any limit upon them, but merely declares the extent of relief which can be granted upon final hearing under the sections of the constitution quoted as construed by this court in the light of the circumstances existing at the date of its adoption. (State ex rel. Whiteside v. First Judicial District Court, supra.) The extent of the relief granted upon final review, in so far as this provision may be considered a legislative limitation upon it, would be just the same had it never been enacted. ' It follows, therefore, that, except to provide independent appeals from interlocutory orders, and to deny any other mode of review of them, the legislature has not limited in any way the extent of the power of this court upon appeals from final judgments. Nor do we think such limitations would be valid, or effective for any purpose, should any such be enacted.
We do not deem anything said herein to be in conflict with the views expressed in the two cases recently decided by this court under the title Maloney et al. v. King et al., Mont. 487, 492, 68 Pac. 1012, 1014. The first of these cases involved the question whether this court, under the provisions of Article VIII, See. 3 of the Constitution, and of Sections 1722 and 1723 of the Code of Civil Procedure, supra, has the power to suspend the operation of an interlocutory injunction pending an appeal from an order granting it. It ivas held, among other things, that it is not necessary to the complete exercise of appel
Appellate jurisdiction also implies all the power1 and instru-mentalities necessary to malee effective the ultimate relief sought. This follows from the grant itself without other express provision, for “it is an established doctrine that one of the essential attributes of appellate jurisdiction, and one of the inherent powers of an appellate court, is the right tO' make use of all the writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably exercise the jurisdiction conferred.” (Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 11 Pac. 103.) This language was quoted with approval in State ex rel. Whiteside v. First Judicial District Court, supra, and we deemed it an expression of
2. Having reached the conclusion that this court has power to grant the relief demanded, the next inquiry is, do the facts presented upon the hearing justify interference? Touching the affidavits tending to show wanton destruction of the workings in the property by defendants, we think them so overwhelmingly rebutted by ihe' counter affidavits that they are not worth consideration. It is admitted, however, that tlie defendants have extensive workings in the claim, and that they are pushing forward their operations with a large force of men; that they are removing from it and converting, to their own use about 400 tons of ore per day, and that this is of great value. Under the view we take of the attempt by the district court to retain jurisdiction pending the appeal, the plaintiff has no security against loss, in case he should finally prevail in the. litigation, other than the pecuniary responsibility of the defendants. Even if they are and remain solvent, he has no means of ascertaining with certainty from day to day the value and amount of the ores taken out and converted by them. Whatever redress he might obtain would, therefore, depend upon the testimony of witnesses, and the integrity of the accounts kept exclusively by defendants. It will be at least two years before the appeal can be heard by this court, if it is taken up in its proper order. By that time the mine will be in a great measure exhausted. The sole value of the estate will thus be greatly diminished. These facts present a case which appeal so strongly to our discretion that wie think a refusal of the relief demanded would be denial of justice. T'o grant, it would be simply to preserve the property, and allow it to stand as it is, until it is finally determined who is the lawful owner of it. To deny it would be to permit the estate to be destroyed, and drive the plaintiff, if finally successful, to pursue remedies for redress wholly different from that of which he seeks to avail himself in the present litigation.
These observations are founded exclusively upon the showing now made to this court. We have not looked into the merits of the case, nor are we to be understood as having prejudged them
3. Much contention is made by the defendants in support of the view that, inasmuch as the decree shows upon its face that the trial court, at plaintiff’s instance, retained jurisdiction of the cause pending the appeal, for the purpose of protecting the subject of the litigation, the plaintiff may not be heard in this court upon this application. On the other hand, plaintiff contends that the recital in the decree is false, that it is not founded upon any suggestion made by him to the trial court, and that it was inserted by the trial court, without authority or facts to support it, by way of an amendment to the original decree^ more than six.months after the latter was regularly entered. We shall not now consider what power the district court has to amend its final judgment or decree more than six months after it has been, regularly entered, or what evidence is necessary to support such amendment. In our oiunion, the particular amendment in question was wholly unauthorized, no matter at whose instance it was made, or what evidence there was tending to show that the matter- contained in the amendment was in fact a part of the decree as rendered in the first instance. When that court rendered its final judgment at the conclusion of the case settling the rights of the parties, its jurisdiction over the subject-matter and the parties ceased, except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had looking to a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal. Upon appeal from a final judgment, after the motion for a new trial has been disposed of,
It is therefore ordered that an injunction issue requiring the defendants to refrain from mining or removing any ores from the Minnie Ilealy claim pending the appeal herein, or until the further order of this court; provided that before the same shall issue the plaintiff shall file with the clerk of this court an undertaking in the sum of $300,000, with at least two good and sufficient sureties for the full amount of the penalty thereof, the same to be conditioned as is provided by law: in such cases, the sureties to- be approved by the clerk of this court; and provided, further, that the defendants may do whatever work may be necessary to preserve the property during the pendency of the appeal.
Writ granted.
Rehearing
ON Motion eoe Eeheabing.
delivered tbe opinion of tbe court.
Immediately after tbe original opinion was filed in tbis canse, in July of tbis year, counsel for tbe defendants filed a motion for a rebearing. Tbis motion was, after argument and further consideration of tbe questions involved, denied; Mr. Justice Milbuen dissenting. The time for the summer vacation having arrived, it was not practicable for tbe court to reduce to writing additional reasons in support of tbe conclusions announced in the former opinion. While a majority of tbe court deemed tbe reasons for its action upon tbe motion already sufficiently stated, it was thought advisable, when tbe court convened again, to elaborate them in certain respects* in order to dispose of suggestions made upon the argument of tbe motion, as well as to call attention to matters not theretofore adverted to.
1. It was earnestly and plausibly argued by counsel that it ivas tbe intention of tbe constitutional convention, as shown by the use of the clause, “subject, however, to such limitation'-1 and regulations as may be prescribed by law” (Constitution, Article VIII, Section 3), to grant to tbe legislature tbe power to limit absolutely tbe appellate jurisdiction of tbis court, even to the extent of cutting off the right of appeal in all cases, if it should so desire. Tbis result, they say, follows from tbe usual and ordinary definition of the word “limitation,” namely: “Tbe act of bounding or circumscribing; the fixing of a limit or restriction.”
It is tbe duty of tbis court to interpret tbe constitution in its entirety, and to endeavor to discover what its meaning is as a whole; giving to each word and phrase the definition which will make it consistent and harmonious with other words and phrases contained in it upon the same subject; exercising the utmost care
In the former opinion the clause in question was held not to be open to the interpretation contended for by the defendants, for the reason that it must be construed in connection with the grant of appellate power contained in the preceding clause, and such a meaning given to it as will permit both to stand. We did not deem it possible that the convention intended itself to be understood as granting plenary appellate jurisdiction to this court, coupled with a right impliedly reserved to the citizen to invoke it, and at the same to declare that the jurisdiction should be used or the right exercised only at the option and by the express permission of the legislative assembly. That this was not the intention is manifest from the provision contained in Section 15 of the same Article, which declares: “Writs of error and appeals shall be allowed from the decisions of the said distinct courts to- the supreme court under such regulations as may be prescribed by law.” It will be noted that the expression is, “the decisions-;” that is, all the decisions. There is no limitation whatever as to any particular character of decision, but the expression includes every decision, of whatever character. Certainly, this must be construed in the light of the conditions and exceptions existing at the time the constitution was formulated and adopted; but this court is not permitted to go further, and give an import to the language of Section 3, supra, which would, practically destroy the import of the clear statement contained in Section 15, quoted. This latter seems to have been inserted ex industria- to give scope and meaning to the limitation clause, so that there could be no mistake as to its intended-signification. If the contention of the defendants should be sustained, then the powers of this court, except its power under
It thus becomes clear tbat parties litigant have tbe right of appeal from all tbe decisions made in tbe progress of tbe ease, and tbat tbis court has jurisdiction to bear and determine them, subject only to such reasonable limitations and regulations as tbe legislature may enact affecting tbe time within which and tbe mode by which tbe appeal may be taken. Tbe only exceptions to this broad statement of tbe rule are judgments in con
The cases cited by counsel, such as U. S. v. More, 3 Cranch, 172, 2 L. Ed. 397; Durousseau v. U. S., 6 Cranch, 312, 3 L. Ed. 232; Wiscart v. Dauchy, 3 Dall. 327, 1 L. Ed. 619; Robinson v. Baillieul, 2 Tex. 161; Yarbrough v. State, Id. 526; and State v. Daugherty, 5 Tex. 3,—and similar cases, being based upon different constitutional provisions, do not apply.
2. Counsel insisted that this court was in error in declaring that the appeal was taken in good faith, and in basing this declaration upon the statement “that the same appears from the assignment of errors.” In determining whether the plaintiff was entitled to the relief demanded pending the appeal, reference must, of- necessity, be had to the assignments of error and the record, in order to determine whether the appeal was taken in good faith. Of course, this court did not wish to be understood as having confined its preliminary examination of the record to the list of errors assigned therein, without looking further, to see if there were matters in the record upon which the assignments were predicated. This the court did; and having found that such was the case, and that important and doubtful questions were raised, and, further, that a correct solution of them would require a careful investigation of the authorities, it was thought that a sufficient case was made out to authorize the issuance of the writ, to prevent the partial or total destruction of the estate involved before the appeal could finally be reached and disposed of.
3. Much was said in the argument to the effect that, whatever powers this court has under the constitution, it has no power to reverse or modify, upon an application of this character, the judgment rendered upon the merits by the district court. This the court did not do; nor is this the effect of the relief granted. That judgment stands as rendered, without modification, and will remain in full force until reversed, modified, or affirmed upon a final hearing. The only effect of the writ is,
For these additional reasons, we were, and still are, of the opinion that the writ was properly issued, and that the motion for a rehearing should be denied.
Motion denied.
Dissenting Opinion
I dissented from the order denying the motion for another hearing, because I desired to hear further argument. The briefs of counsel in support of the motion were such as to cause me to think that I might have been mistaken in the decision at which I arrived in the case, and I was willing to grant a rehearing, although the argument of the counsel in said briefs did not convince me that I had arrived at a wrong conclusion.
