23 Mont. 122 | Mont. | 1899
delivered the opinion of the court.
This is an original proceeding for leave to prove certain exceptions which the petition states the judge of the Second judicial district court has refused to allow in accordance with the facts. The petitioners are the Boston & Montana Consolidated Copper & Silver Mining Company, John F. For bis, G. H. Hyams, and Frank Klepetko, the answering defendants in Forrester & MacGinniss v. Boston & Montana Consol. C. & S. Mining Co. et al., several phases of which case have been before this court in 21 Mont. 544, 55 Pac. 229; 21 Mont. 565, 55 Pac. 353; 22 Mont. 220, 56 Pac. 219; 22 Mont. 241, 56 Pac. 281; 22 Mont. 376, 56 Pac. 687; 22 Mont. 438, 56 Pac. 865; 22 Mont. 352—430, 56 Pac. 1135, 868. The petition purports to be drafted under the provisions of section 1157 of the Code of Civil Procedure, and of subdivision 11 of Rule IY., now Rule Y, of this court. It appears that the petitioners moved the district court to vacate the order of December 15, 1898, appointing a receiver for the property of the defendant company, and to discharge him; that a hearing was had in obedience to the mandate of this court (State ex rel.
The petition must be dismissed upon the ground that the amendments allowed are immaterial; hence we do not consider or decide, but expressly reserve, all questions which might arise, were the amendments material, in respect of the power and right of the supreme court, under section 1157 and Rule •V., to alter or remodela bill of exceptions allowed by the trial judge; nor, on the present application, is it necessary either to interpret or construe the section. The avowed purpose of incorporating the amendments was to show that the defendants, and particularly the Boston & Montana Consolidated Copper & Silver Mining Company, were in contempt of the district court during the hearing of the motion, and at the time it was denied; for example: the bill, as presented for settlement, contains a copy of the order appealed from,
Counsel for the plaintiffs suggest, tentatively, that the district court and judge were compelled by our writ of mandate to hear and determine the application to vacate the order appointing the receiver while the defendants were in open defiance of said order, and that the-judge “preferred, rather than to make answer to the alternative writ setting forth as a ground of his refusal to hear the application, the facts showing the defendants to be in contempt, to proceed with the hearing under the writ of mandate, and to deny the application for that reason.” Reference to the opinion in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., 22 Mont. 438, 56 Pac. 865, shows that the district judge stated the reasons in detail why he had not heard the motion, and declared that in any event he intended to hear the motion on April 3, 1899, with
No one of the amendments by which the draft of the bill of exceptions is changed is either material or relevant, for the question to be considered upon the appeal will be whether or not the order appointing the receiver should have been vacated, and that officer discharged. The proceedings as for contempt, of which the defendant company has been subsequently adjudged guilty, are wholly foreign to the question.
The prayer • of the petition is therefore denied, and the petition dismissed, at the costs of the applicants.
Dismissed.