The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-01-05
IN THE DISTRICT COURT
A Renittitur Received in the
Tramway Case.
A QUESTION OF PRACTICE
a Suit by the City Against James
Davidson and Others Opening of
Galena Alley-Administrat
Jameson's Report.

The remittitur from the supreme
court was received yesterday by the
| clerk of the courts in the tramway
| case Of the Butte g. Boston Mining
| company against the Montana Ore Pur-
chasing company. The appeal had been
| taken from an order of the district
| court dissolving temporary restrain
ing order granted on the application of
the plaintiff and refusing the plaintiff
an injunction against the maintenance
| by the defendant of a tramway on the
Snohomish lode claim owned jointly by
the plaintiff and defendant. The SUI
preme court in it's opinion suggests
| that if the plaintiff renews it's appli-
| cation that the district court hear it
| on the evidence already received at the
former hearing, supplemented by such
| further proofs as either party may ad-
duce. The Butte & Boston company
insists that the. M. o. P. tramway was
paced on the common nroDerty wrong
fully, while the defendant maintains
that the tramWay was built with the
consent of the plaintiffs predecessor in
| interest. The supreme court finds that
the party, {. H. Palmer, from whom
the permission was obtained to build.
the tramwav. was not authorized to
grant Tor his company either an ease
lnent or license. The acts of the de-
PENDANTS constituted an assumption and
exercise of exclusive ownership over a
portion of the property owned in COM
mon by the plaintiff and defendant,
ana the injunction being an appropriate
remedy against a stranger was proper
~ granted against the defendant for
the purpose of restraining the continu-
ance OF such trespass, and thus to pre-
vent multiplicity of actions at law
no recover damages which would be
occasioned thereby.
The supreme court also decides, in
the case, an important question of
practice. The temporary restraining
order was granted without notice to
the defendant, and the order to show
cause why the injunction ,pendentel lite
should not be issued was heard with
the application of defendant to dissolve
the restraining order. The application
of the defendant to dissolve was sup
ported by affidavit The court received
oral testimony upon the hearing, but
declined to consider affidavits on the
part Of the plaintiff in opposition to
the application by defendant the rea
son given by the court being that UNI
der the law the plaintiff was permitted
TO oppose the application to dissolve
either by affidavit or oral testimony,
but not by both, and that as plaintiff
mad introduced oral testimony it would
not be allowed to use an affidavit The
supreme court says the plaintiff was
not limited to the right to use one only
OF the two sorts of evidence recognized
as admissible by the law cited, and the
TACT that it had seen fit to avail itself
OF oral testimony was no reason for ey-
Guiding evidence in the shape of writ
ten testimony. Since the application
TO dissolve was supported by affidavit.
the plaintiff had the privilege of pre-
senting all evidence at his command
in opposition to the application, wheth-
er said evidence was oral or written
and the statute is not susceptible to the
Interpretation which the court below
gave it. Upon the evidence adduced Mt
the hearing plaintiff was entitled as
a matter of law to temporary injunc-
ton.
The city of Butte yesterday COM
menced an action against James David
son and others for the purpose of con-
demning property for the opening of
Galena alley, between Park and Galena
streets, running east from Academy
street. The owners of the property
wanted are James Davidson, Hayes
Cannon, George e. Maule. David
Maule, ]. E, Onnenheimer Christian
Jackey, Permelia Barnhart, Isaac More
house and w. A. Clark.
w. ]. Jameson, administrator of the
estate of James M. Morgan, deceased,
filed his final account in court yester-
day. He says that all he received as
administrator was s63.75, and he paid
it all out in costs of administration.
AL that remains of the estate is a trunk
containing wearing apparel and one
nickel watch.
Frank Rooney, whose wife swore out
warrant for his arrest for failure to
provide for his family, the night be-
fore, was arrested yesterday and re-
leased on bonds for his appearance
Roney displayed bills showing he had
paid $40 to one store last month for his
family and said his wife's recent COM
plant against him for beating her had
caused him to lose his job and that con-
sequently he had not been able to do
anything for his family since.