95 P. 843 | Mont. | 1908
delivered the opinión' of the court.
This is an application for a writ of supervisory control. The court has heretofore issued an order directing the respondents to show cause why the prayer of the relator should not be granted.
The plaintiff Bossier filed his affidavit, in which he sets forth that, upon a hearing before the referee, certain books of the defendant company were brought before the referee, but only a part of said books were brought, and that the books which were material upon the hearing of an accounting in the case were not brought and had not been furnished by the defendant; that, after the case was referred to Mr. Davidson, the matter was continued from time to time for hearing before said referee at the request and for the convenience of the defendant’s attorneys, and the same was finally set for hearing on the twenty-
In the petition of the relator we find the following allegation: “That under protest, but in obedience to said subpoena issued by the referee, your petitioner has produced said books, papers and memoranda, and plaintiff is proceeding to examine the same against the protest of your petitioner.” The district court denied the motion to vacate the order of reference.
It is contended in this court that the district court had no authority to order a reference in the case without first determining whether or not a contract existed between Bossier and the Butte Land and Investment Company, making the taking of an account necessary, as alleged in the complaint, and that the order made by the court was therefore an arbitrary exercise of power, and should be vacated. Section 1130 of the Code of Civil Procedure provides: “A reference may be ordered upon the agreement of the parties, filed with the clerk or entered in the minutes: (1) To try any or all the issues in an action or proceeding, whether of fact or law, and to report a finding and judgment thereon. (2) To ascertain a fact necessary to .enable the court to determine an action or proceeding.” Section 1131, same Code, provides: “When the parties do not consent,. the court may, upon the application of either, or of its own motion, direct a reference in the following cases: (1) When the trial of an issue of fact requires the examination of a long account on either side, in which case the referee may be directed to hear and decide the whole issue, or report upon any specific question of fact involved therein. (2) When the taking of an account is necessary for the information of the court before judgment, or for carrying a judgment or order into effect.” The respondents have filed a motion to quash the order to show cause and to dismiss the petition.
The motion to quash the order to show cause is granted; and the relator’s petition is dismissed.
Dismissed.