24 Mont. 330 | Mont. | 1900
delivered the opinion of the court.
In this cause the relator seeks by certiora/i'i to have this court review and annul the action of the district court of Silver Bow county in making an order fixing the amount of an undertaking on stay of execution pending an appeal from a judgment in the case of Baker against the Butte City Water Company. Upon the affidavit filed in this court the writ was issued. The record returned by the district court discloses the following proceedings had in said cause:
On July 31, 1899, the relator obtained a judgment against the Butte City Water Company, a corporation, in a cause wherein the relator ivas plaintiff and the said corporation was defendant. The action was in ejectment, and by thejudgment the plaintiff was declared to be the owner and entitled to the possession of the Keystone (unpatented) quartz lode-mining claim, situate in the Highland mining district, Silver Bow county. A motion for a new trial was made by the defendant corporation, which was denied. Appeals from the order and judgment were then taken to this court.. Upon motion by the relator these appeals were dismissed because of a defective
The complaint is now made that this order was in excess of jurisdiction, for the reasons (1) that the statute (Code of Civil Procedure section 1732) authorizing a stay of execution pending an appeal from a judgment directing the delivery of possession of real estate does not apply to unpatented mining-claims; (2) that the court had no power to fix the amount of an undertaking for stay upon a second appeal from the same judgment, because its power was exhausted under the first appeal; and (3) that at the time the amount of the undertaking was fixed it was made to appear to the district court that the mining claim in controversy was not then, and for a long time had not been, in possession of the defendant.
We are of the opinion, after a consideration of the questions presented, that the writ was improvidently granted, and that it should be set aside, and the application dismissed.
The writ having been improvidently issued, it is vacated and set aside, and the proceeding is dismissed. Dismissed.