Daily press and Dakotaian. [volume] (Yankton, Dakota Territory [S.D.]) 1875-1880, 1879-09-30

ohe 1stiy 3rsss aud 9xk1t1tas
vANkToN DAKOTA
tuesday Evening, Sept. 80, 1879.
OPINIONS OF THE SUPREME COURT.
PUBLISHED BY AUTHORITY.
E. @. SMITH. Reporter.
ROBERT w. COLE ct al. Respondents.
q s. n. CADY ct al. Appellants.
In THE SUPREME COURT OF THE TERRI.
TORY OF DAKOTA, AT THE DECEMBER
TERN, 1878. se
Appeal from the Lawrescs County District
VfTIF Court.
4. Practice: Injunction: An injunc-
ton having the force and effect of a writ Of
restitution, under the provisions Of Sec. 20,
Clap. 81, Of the political code, il insthe ma
ture Of a-temporary restraining order or
preliminary injunction, and determines
nothing as to the ultimate rights of the par.
ties. An order granting or refusing such
writ can be reviewed only in %conjunction
with b sappsal from final Judgment the
main action. E
y 3. Appeal: R.eord: The supreme
court will not review an order appealed
from where the record does not purport to
contain all the papers upon which such or
der was granted.
Trip and Boylss for appellants, Parker
and Frank for respondents.
Barnes, L-This is an appsalsfrom an OF.
der Of tbs district court Of lawrence county
restrsining the defendants from interfering
with certain mining property therein de-
scribsd, said.order having the force and
effect Of q order of restitution. The com.
plant alleges that Immediately prior to the
bringing of this suit, the plaintiffs we're in
the quiet and peaceable possession Of. and
we're entitled to the possession of a mining
claim known as theT'OM Brig mine," lode,
lead, ledge, deposit or yein.of gold bearing
or quartz rock.
The complaint also alleges that while &C
IN the peaceable and quiet possession Of said
described premises and entitled thereto, tn,
said defendants on the 9th of March 1878
BY fraud and during the temporary absence
of said plaintiffs, entered upon and into
certain tunnel. situated upon said MINING
property, said tunnel as we'll q we'll as min
ing property being in the rightful possession
of the plaintiffs.
That on the 2Sth of March 1873, sale
plaintiffs demanded that said defendant
surrender to said plaintiff the possession o
said mining property which said defendant
refused and still refuse to do.
The plaintiffs therefore pray that an in
junction may issue herein, having the fore
aud effect of a writ of xesaitution of tn
above described premises, and such othe
relief as by law and right they may be en-
titled to. The complaint is verified.
The defendants take issue upon the allie
cations of the complaint.
BY their answer the defendants raise th
further question as to the power of the dir
trict court or Judge in q summary manner I
determine the question of the right of pos
session of the premises in controversy. The
also claim, that the statute comforting thi
power upon the district court or Judge 10 ur
constitutional and of no force or effect.
Issue being thus joined on the 3rd day 9
April, the presiding judge of the first di
trict granted an order on the application
the plaintiffs requiring defendants to sho
cause before him at chambers on the 81
day of April following, why an injunctio
having the force and effect of a writ of re-
%titution should not issue.
On the 9th day of April 1878 BY conser
of parties, the hearing was postponed to tn
18th day of said month. The respectiv
parties were then heard and. Al order gran,
ed restoring the plaintiffs to the immedial
possession of the mining property, and pr.
hibiting and enjoiniug the defendants frol
further interference Herewith.
The appellants seem to have regarde
this order of restitution, as disposing Of a
the questions raised by the pleadings, an
a. = final judgment in the action. In this,
think they are in error.
1t is an undeniable fact Of which cour
may properly take notice, that in minir
districts and localities, there is . strong tel
dency toward the disregard Of law and Q
der, fraudulently and stealthily to sci;
upon the possessions of others, and by for
and intimidation to deprive the rightful o
cupant Of his property or possession. Hen
the wisdom and l think necessity Of the ID
under consideration. -,.-