The herald., 1896-11-28

second motion is addressed to "A. B.
Hotchkiss, esq.,, attorney of record for
said appellant" and Is signed The
Nevada Southern Railway Co., by M. A.
Conklin, its attorney, and IN the no.
tice Hotchkiss Is informed that the said
railway company will apply for an order
of the court to change the attorney for
said company, appellant. by substitute
ing said Conkling as its attorney IN the
place of Hotchkiss. These two motions
are based upon substantially the same
grounds namely, that said appeal was
taken without the authority OF the ap-
pellant. and particularly, that since
the taking of lne appeal the appellant
has ordered, that Conkling be subetitut-
ed as its attorney In place OF said Hotch-
kiss, and that the appeal be dismissed.
Hotchkiss, for himself and for the ap-
pellant makes certain preliminary OBJ
jections to the hearing of these mo-
adopted to bring before the supreme
court the matters sought to be pre-
sented by said motions is irregular anil
unwarranted and that the said motions
cannot therefore be considered. I'VE co
not deem it necessary" says the court
Ito pass upon these objections. or to con-
siderother objections to the competency
of certain evidence submitted on the
hearing of the motions; because, waiv-
ing all of said objections, we do not
think that the evidence submitted war;
rants the granting of either OF said mo-
tions.
s'The motions were submitted here up
on exparte affidavits, which is very un-
satisfactory method Of presenting issues
which involve important rights and
large property interests. If these mo-
tions should be granted some of the par
ties would be forever precluded from
raising in any form questions which
they seek to have decided on the appeal
sought to be dismissed. and which in
volve large sums of money. Evidently,
therefore, the motions should not tie
granted unless the showing made by the
moving parties is strong and clear; and
the showing made Is not of that char
acter. There are a number of af1idavits
made on behalf of each of the contesting
parties, and they are sharply conflicting.
1t would be useless to state here the
contents of the various affidavits; 1t Is
sufficient to say that the evidence which
they furnish considered as whole,
does not affirmatively establish the al
legged facts upon which the motions are
based, or show who, among contestins
stockholders. have the control of the
corporation appellant. If upon the hear
ing of the appeal the judgment of the
court below shall be affirmed, the NOV
ing parties in these motions will have
obtained, substantially, what they are
now demanding. On the other hand, If
the judgment shall be reversed 1t should
be an easy thing in the court below,
where questions of fact can be fully in
vestigated, to determine who constitute
the proper governing body of said cor
poration; and such governing body can
then make such disposition Of the case
as 1t may deem advisable. For these
reasons we are satisfied that the mo-
tions should be dismissed.
"The motion to dismiss the appeal
and for substitution Of attorneys are
both denied"
The opinion is written by Justice Nc
Farland, with Justice Garroutte concur
ring, but concurring opinion Is also
appended written by Justice Harrison,
with Justices Van Fleet and Henshaw
in which additional reasons
are given for denying the motions.
It is pointed out that the motion Cor
substitution of attorneys should have
originally been presented to the superior
court Sec. 946. c. c. P. provides that
the perfecting of an appeal stays all fur
ther proceedings in the court below
upon the judgment or order appealed
from" or upon the matter embraced
therein" and also declares that "the
court below may proceed upon any other
matter embraced in the action. and not
affected by the order appealed FROM"
and sec. 2s4, G. c. p provides that the
attorney in an action may be changed
at any time "before or after judgment"