#### BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING COMPANY, Appellant, *v.*MONTANA ORE PURCHASING COMPANY et al., Respondents.

(No. 1,756.)

(Submitted January 6, 1903.

Decided February 12, 1903.)

*Appeal from an Order Denying an Injunction*— Finding *on Contradictory Evidence*— Law *of the Case*— Corporations— *432*Appointment of Receiver*— Stay *of Proceedings*— Poiver *to Bring Action.*

1. The supreme court, upon an appeal from an order denying an injunction, will not reverse the order as being an abuse of discretion, where the finding of fact upon which the order rests is based on conflicting evidence, there being some evidence tending to support such finding.

2. The decision of the supreme court upon a former appeal is binding only upon points necessary to the determination of the cause as then presented.

3. Where an appeal from an order vacating a restraining order in a trespass case was decided on the *ex parte*showing of defendant that a receiver had been appointed for the plaintiff corporation, such decision did not become the law of the case so as to preclude a decision that the plaintiff might prosecute the action, when other material facts in regard the receivership were made to appear in subsequent proceedings.

4. Where a receiver was appointed for a corporation, but a stay was granted pending a hearing in the supreme court, tne corporation had full power to bring suit until the receiver took possession, and after his discharge to prosecute to completion an action so commenced during the stay.

*Appeal from District Court, Silver Bov> County; D. W. Har-ney, Pudge.*

ActioN by the Boston & Montana Consolidated Copper & Silver Mining Company against the Montana Ore Purchasing Company and others. From an order denying an injunction, plaintiff appeals.

Affirmed.

*Messrs. Porbis £*Evans, for Appellant.

*Messrs. Mediation & Cotter,*for Respondents.

MR. CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

This action was commenced on February 28, 1899. Through inadvertence the date is given in the opinion on a former appeal (26 Mont. 146, 66 Pac. 152) as February 28, 1898. Its purpose is to recover damages for trespasses alleged to have been committed by defendant on certain portions of the Pennsylvania claim. A second cause of action is added, containing allegations showing a continued trespass tending to destroy the value of the estate, and, as equitable relief, an injunction is asked pending the action.

*433The cause has been before this court twice heretofore upon appeal. In each instance the action of the district court was affirmed. (24 Mont. 142, 60 Pac. 990; 26 Mont. 146, 66 Pac. 752.) The first appeal was from an order vacating a temporary restraining order. It was. held upon that appeal that the district court did not err in dissolving the order, it being made to appear that a receiver for the plaintiff had theretofore been appointed in another cause, who had qualified; and it following from such showing that the plaintiff had no capacity to sue, but that the right of action, if any existed, was, by the fact of appointment and qualification of the receiver, vested in him under Section 955 of the Code of Civil Procedure. At the time the

district court dissolved the restraining order it retained the order to show cause, made at the time the restraining order was issued. Thereafter, on May 16, 1900, after a hearing -was had in pursuance of the order to show cause, an injunction was denied. Prom this order an appeal was prosecuted to1 this court. This order was also affirmed. (26 Mont. 146, 66 Pac. 752.) It was held that it was within the discretion of the district court to deny the injunction, it being made to appear that the defendant had in another case, wherein it was plaintiff, and the plaintiff in this cause the defendant, being adjudged to be the owner of the ore bodies in controversy. The cause in which the adjudication had been made is referred to in the opinion as cause No'. 7,337 of the district court files. It was at that time pending in this court upon appeal from the judgment and an order denying a nevr trial. Since that time this court affirmed the order denying a new trial, and also the judgment, with certain modifications. *(Montana Ore Purchasing Co.*v. *Boston & Montana Con. Copper & Silver Mining Co.,*27 Mont. 288, 70 Pac. 1114.) In the meantime, after this cause was remanded to the district court, two applications were made there for injunctions to restrain defendant from extracting ores from veins within the claim designated as veins Nos. 2 and 7. One of these applications was made on November 27, 1900, and the other on April 13, 1901. An order to show cause and a restraining order was issued in each instance. Finally, a hearing was had *434under these orders on May 15, 1901, the bearing being treated as a single application, with the result that on October 12, 1901, the injunction was denied. The present appeal is from this order.

1. It will be noted that the principal contention in *Boston & Montana Con. C. & S. M. Co.*v. *Montana, Ore Pur. Co.,*26 Mont. 146, 66 Pac. 752, was as to1 the admissibility of the judgment in cause No. 7,331 as evidence upon the application for the injunction. The principal contention at the hearing, at the termination of which the order now complained of was made, was upon the question of fact whether the ownership of the veins now in controversy was within the issues- in cause 7,337, and was adjudicated under the decree rendered therein. The plaintiff insists that the evidence shows them to be wholly separate and distinct veins from the ones described in the decree. We have examined the evidence on this point, and find that it is conflicting; so that we cannot say that the district court was guilty of an abuse of discretion in refusing the injunction. That court heard the evidence, and made its finding thereon, and this finding must be held to be conclusive upon this court for the purpose of this appeal, there being some evidence tending

, to show that the ore bodies in controversy are a part of the vein already declared to belong to the defendant.

2. Several errors are assigned by the plaintitf upon the admission and exclusion of evidence during the hearing in the district court. We have carefully examined them all, and find that they are without merit.

3. These remarks dispose of this appeal; but another question is presented, which requires a decision, inasmuch as it will arise at the hearing upon the merits. At the time the action was commenced, as has been stated, a receiver for the plaintiff corporation had been appointed by the district court of Silver Bow county in a cause entitled *"Forrester and MacGinniss*v. *Boston & Montana, Con. C. & S. M. Co. et al.”*The order of appointment was made on December 15, 1898. Oil December 16th, and after the receiver had qualified, but before he had taken possession of the plaintiff’s property, an application was *435made to tbis court for a writ of review to annul the order. Pending the hearing in this court proceedings under the order were stayed. On February 27, 1899, the order was affirmed *(State ex rel. Boston & Montana Consol. C. & S. Mining Co. et al.*v. *Second Judicial Dist. Ct.*22 Mont. 241, 56 Pac. 281), but upon application to this court the stay was further extended until March 14, 1900. Counsel for defendant contend that from and after the date of the order appointing a receiver the plaintiff had no* capacity to bring an action in relation to its property, since the power to manage and control it, as well as the duty to protect it, was vested exclusively in the receiver, and that, therefore, this action, brought while the order of appointment was in force, cannot be maintained, though the order was afterwards stayed, and finally vacated on appeal by this court. *(Forrester and MacGinniss*v. *Boston & Montana Con. C. & S. M. Co.,*22 Mont. 430, 56 Pac. 868, and *Id.,*24 Mont. 148, 60 Pac. 1088, 61 Pac. 309.) Counsel rely upon the decision on the former appeal in this case *(Boston & Montana Con. C. & S. M. Co.*v. *Montana Ore Pur. Co.,*24 Mont. 142, 60 Pac. 990), and insist that the declaration then made became the law of the case. That appeal was from an order vacating a restraining order made without notice, and upon an *ex parte*showing by the defendant, in which it was made to appear that the receiver had been appointed, and that the order was still in force. It did not appear that at the time the action was brought the powers of the receiver had been suspended, nor that they were still suspended at the date the hearing was had. At the hearing when the order was made from which the present appeal was taken, all the facts were made to appear, and they are embodied in the record. The decision upon the former appeal was not based upon the facts as they actually existed, nor had the plaintiff any opportunity to be heard, or to present the facts. Under these circumstanced, to hold that decision to be the law of the case, and the plaintiff bound by it, would be in violation of the rule announced by this court that the decision upon a former appeal is binding only upon points necessary to the determination of the cause as then presented. *(Wastl*v. *M. U.**436*Ry. Co.,*24 Mont. 159, 61 Pac. 9, and cases cited.) Prom tbis point of view tbe former decision is not tbe law of tbe case as now presented, for tbe facts as they were shown to exist upon a full bearing of both parties are now presented for tbe first time. In our opinion' tbe order of appointment became effective to devest tbe plaintiff of tbe power to bring actions necessary to protect its -property from spoliation at tbe expiration of tbe stay granted by tbis court in tbe *certiorav’i*proceeding when tbe receiver assumed possession of tbe property. Tbe plaintiff bad tbe right to resist tbe m airing of tbe order, including tbe right of presenting it to tbis court for review; and, as a stay was granted pending tbe final determination of the questions involved, tbe stay including tbe time at which tbe action was brought, tbe action was properly brought by it, and could' be maintained by it in its own name until tbe receiver took possession of tbe property in the regular discharge of bis duties; and, after tbe receiver was discharged, its right would revive to prosecute tbe action to judgment. Until tbe agent appointed by tbe court took possession of tbe property, and tbe duty was cast upon him to care for it, and bring all suits necessary for its protection, tbe plaintiff was not devested of that right; otherwise, during the time when tbe order of appointment was stayed, tbe property was subject to waste and destruction, there being no person empowered to care for it. Until thac time tbe authority of tbe plaintiff extended to tbe proper management of its business, tbe employment of counsel for tbe prosecution of suits to enforce its rights and to protect its property. A receiver has no authority whatever until be has qualified and assumed tbe discharge of tbe duties of bis office under tbe order of tbe court. “When tbe order appointing him is stayed by an appeal and *supersedeas,*tbe property will not be deemed in tbe custody of tbe law until actually reduced to possession by tbe receiver after tbe affirmance of bis appointment upon the appeal, until which time it remains in tbe custody of-tbe original defendant, who is authorized to make necessary contracts for its preservation and for tbe protection of bis rights.” (High, Receivers, Sec. 136; *Cook*v. *Cole,*55 Iowa, 70, 7 N. W. 419.) *437Tlie bringing of actions to protect tbe property is just as necessary as tbe making of contracts, or tbe doing of any other act required by the exigencies of tbe business, which does not have for its purpose an evasion of the order of appointment. It does not matter whether the suspension of the powers of the receiver are by means of a *supersedeas*pending appeal or an order staying proceedings pending any other mode of review.

The order is affirmed.

*Affirmed.*