23 Mont. 564 | Mont. | 1900
Mandamus. The relators are the defendants in an action pending in the district court of Silver Bow county, wherein the Washoe Copper Company is the plaintiff, and in which the plaintiff alleges ownership of the Oden lode
It must be denied for the reason that, in the circumstances disclosed, it is not the duty of the court or judge to entertain the motion for a modification. Tiiere was no change in the facts between the time when the hearing was had and the time when the motion to .modify was made,' — that is to say, the latter motion is based upon the same facts and rests upon the same grounds as those which the defendants had theretofore presented in opposition to the granting of the injunction. Neither the defendants’ contention nor their defense is altered; they desire to be again heard because they were now able, as is averred, to produce evidence of the existence of facts which they alleged existed at the original hearing, but had (in the opinion of the district court) then failed to establish. The facts are not different; the defendants have but secured additional evidence tending to prove them. The' court or judge is not required to entertain a motion to dissolve or modify an interlocutory injunction granted upon notice or order to show cause, where the motion is based upon no other grounds or ultimate facts than those already urged in opposition to the order of injunction. This statement is but the enunciation of an elementary doctrine of the law, and is recognized in Section 878, Code of Civil Procedure, as well as in Jones v. Thorne, 80 N. C. 72; Natoma Water Co. v. Clarkin, 14 Cal. 544; Natoma Water Co. v. Parker, 16 Cal. 83; Curtis v. Sutter, 15 Cal. 260; France v. France, 8 N. J. Eq. 619. If the defendants desired the privilege of applying for a dissolution or modification upon the discovery of additional evidence, the
We do not decide whether the district court or its judge is without jurisdiction to entertain the motion the hearing whereof the defendants ask this court to compel; it is sufficient to say that a hearing cannot successfully be demanded as a right. If the court or its judge is without jurisdiction, the motion cannot rightly be heard; if there is jurisdiction, permission to make the motion may be given or withheld in the discretion of the court or its judge, there being no reservation of the privilege to apply for a dissolution or modification. Here the permission was refused, and this Court cannot properly interfere to compel the granting of leave to apply for a dissolution in part or modification; so it is unnecessary to express any opinion on the question of jurisdiction to hear the application of defendants.
The motion for a peremptory writ is therefore denied, and the proceeding dismissed. Judgment is ordered to be entered accordingly.
Denied.