State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court

22 Mont. 376 | Mont. | 1899

PER CURIAM.

It was held by this Court in State v. District Court, supra, that the District Court had jurisdiction to appoint the receive!'. In the opinion in that case (ante page 241, 56 Pac. 281), Justice Pigott, for the Court, said: “The showing upon which the court below based its action in appointing a receiver was sufficient to confer upon the court jurisdiction to take the action it did take without giving notice of the application, for the facts which were presented tended to show that there was then imminent danger that the property ordered to be taken charge of by the receiver would be removed beyond the jurisdiction of the court, and unlawfully disposed of, and brought the case within the provisions of Section 951, Code of Civil Procedure.” To the same effect this Court also held in State v. District Court, ante page 220, 56 Pac. 226, where the court said: “As a shareholder, O’ Connor has a right to ask this relief, and in doing so he has brought himself squarely within the doctrine of State v. Second Judicial District Court, 15 Mont. 324, 39 Pac. 316, the reasoning of which we must approve, and here apply. ’ ’ The showing in the case of Forrester v. Mining Co., upon which the order appointing the receiver was made which was sought to be reviewed in State v. District Court, was practically the same as in C Connor against Mining Co., the proceedings in which were sought to be prohibited in State v. District Court. All matters connected with the question of jurisdiction of the District Court in the Forrester case occurring prior to February 23, 1899, have theretofore been finally settled and determined by this Court. The law has been declared after a most careful and painstaking investigation, and the precedents thus established cannot be disturbed.

Counsel insist, however, that the alleged reconveyance by the New York company to the relator of the property which was conveyed to the former by the latter on April 6, 1898, and the accounting by the former to the latter, all of which have occurred since February 23d of this year, have dispensed with the necessity of putting the receiver in charge of the property; and that the refusal of the District Court to hear the various motions made therein in the matter of the receivership warrants this Court in saying that the District Court is without, or in excess of, its jurisdiction. If, in view of recent events, the District Court puts the receiver in charge of the property, this action on its part, counsel say, will be an £ ‘excessive and unauthorized application of judicial force,” This Court cannot, in a proceeding of this character, assume as true, and so declare, the allegations in the affidavit that the conveyance from the New York company to the Montana company, the relator, is a good and sufficient conveyance, and that the accounting rendered by the former to the latter is a full and complete accounting. Nor can we venture to say that the District Court has lost jurisdiction of the matters touching the receivership by reason of the fact that it has refused to stay the hand of the receiver until the various motions have been disposed of, and has postponed the hearing of these motions from time to time. That court properly has jurisdiction of all the matters involved in these motions. They were properly made there. It is a part of its duty to hear and dispose of them as speedily as it may. Whatever wrong may have been done the relator by the action of the court in these matters, this application does not invoke the proper remedy for it. We cannot at one time say that the lower court has jurisdiction, and at another time say it has not because the various matters touching the receivership have not been heard and disposed of as speedily as counsel for relator seem to think they should. Litigants have a right to insist that vital questions affecting their interests, great or small, should be speedily heard and determined; but failure on the part of the court in this regard does not deprive it of jurisdiction. If the court refuses to act, or defers the hearing needlessly, it can be compelled to perform-its duty; but such nonaction does not warrant this Court in performing the duty which the lower court refuses to perform.

Owing to the great interests involved in this litigation, and the earnestness of counsel for relator in urging this Court to interfere, we have taken the pains to go into the facts presented here very carefully for the third time. A careful consideration of everything presented leaves us with the conviction that we have no authority to interfere with the proceedings of the lower court by issuing the writ. The motion to set aside and vacate the preliminary order will therefore be sustained, and the application dismissed. It is so ordered.

Dismissed.