Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-04-14
VIEWS OF THE COURT.

In ruling upon the matter yesterday the
supreme court sail in part:
T the argument that a stay lnclud-
ing an order of restitution is equivalent
to a decision that an appeal lies from
the original order in the case appoint
ing a receiver and from which an APP
peal does not lie in this instance, it is
a complete answer to say that mas
much as an appeal does lie, and Is con-
coded to lie, from the order recently
made, refusing to vacate the order ap-
pointing a receiver. the duty of the
court is to sustain this right of appeal
and effectuate the relief flowing there
from. To do this the court is obliged
to go into an examination OF what
showing was made on the application
to vacate the order, and to consider
such showing, even though it involves a
scrutiny of matters which were before
the district court when it made the origi-
nal order appointing the receiver, al.
though from that original order there wat
and is no appeal from an order re-
fusing to vacate an order appointing a
receiver, by confirming the investigation
to conditions which may have arisen
since the enactment of the law affording
such remedy. This view would circum-
scribe the investigation within limita-
tons not expressed or implied in any fair
construction of the text of the law, and
might result in positive inability to have
a receiver discharged or dispossessed
until an appeal in the principal suit could
be finally heard and disposed of. This
would fritter away an important law by
a narrow, technical construction unwar-
ranted by the letter and the true spirit of
the statute.
1--WE find no definite line Of time on one
side of which are the matters which can
be considered an a motion to vacate an
order appointing a receiver and on the
otlo, tE,~1 x,I;ab apy,nt nn1 thn nn1pt
will not undertake to fix such a one. The
legislature could have done So, but it did
not; hence we must regard the statute as
authorizing an examination into every
thing back of the order of refusal and
upon which such order was based. The
remedy by appeal from the order deny
ing the motion to vacat the order APP
pointing a receiver being clear. it matters
not that q certain antecedent order is not
appealable. for under the appealable
order the court must consider what is
relevant. and relevancy is not affected
by the fact that appeal from the antece-
dent order does or does not lie.
Nov las to the merits on the prima
facie showing, and to support this ap-
plication for a stay: Defendants, repre-
senting 149, 900 out of $4,000 shares of
stock of the corporation, ask that this
corporation be taken from a receivers
hands. Their property is worth about
$40, 600, 900, is paying large dividends and
is solvent in all respects, having up
wards of $1,000 900 in cash at present in
it's treasury. BY deed, prima facie sufl-
Gent, it was reinvested before this mo-
ton to vacate the order refusing to dis
charge the receiver was made, with all
it's property. which it therefore,. in April,
1898, illegally transferred to a New York
corporation. This reconVeyance is. prima
facie, an attempt to undo, n is an APP
norert l1n6ninp Of the \Vrnnp done tn
plaintiffs by the attempted transfer, held
ultra wires of the Montana corporation
in FORESTER ct al. VS.. b. & NJ. c. c. & S.
Nj. Co., supra moreover, the corporation
has offered to make a full accounting be-
fore a court or referee for all ores mined.
shipped and sold and all moneys received
and disburSed on all accounts since the
illegal transfer and up to the present
time. 1t has also signified it's Willingness
to allow the injunction restraining it
from transferring it's property to a for
eign corporation to be made perpetual.
1t likewise offers to suffer judgment
against it canceling the conVeyances to
the New York company and declaring
valid the reconVeyance made. Further
more, it says. and makes pri1na facie
showing to support the statement, tnat
the management of the receiver appointed
would not be as skilled as operation by
it's own servants and would not result
as advantageously to the many share
holders.
''These matters, among others dis
closed, impel us to the belief that there
is no sufficient reason why his cor
poration's property, pending the decision
on this appeal. should be kept longer
from the possession of the corporations
agents and under the control of the
court. While on the other hand they con