The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-02-21
MAY APPOINT A RECEIVER
Supreme Court Defines Judge
Clancy's Jurisdiction.
KN0TTY PROBLEMS OF LAW
Opinion Is an Exhaustive One and Goes
Deep Into the Case Question as
to Removal OF Directors Is
Not Passed Upon.
Special Dispatch to the Standard.


Helena, Feb. 2O.-The supreme court
to-day rendered the looked for opinion
in the case Of the Boston & Montana
VS.. Judge Clancy and Burdette O'Con-
nor, an application for writ of prohibi-
tion. The application was made to the
supreme court to prohibit Judge Clancy
from exercising jurisdiction in appoint
ing receiver to take charge of the Bos-
ton & Montana property and manage
the same pending the litigation which
involves the inquiry into the charges
made by Montana stockholders against
the Boston e. Montana company, the
New York corporation, to which the
Boston & Montana, the Montana corpo-
ration, had transferred it's property the
transfer of which was declared invalid
under the laws of Montana by the de-
cision of the court rendered some weeks
ago
1t is held by the supreme court tha,s
on an application for writ of prohibi-
t1on the court is limited in its inquiry
to whether or not the district court had
jurisdiction to proceed in the cause be-
fore 1T. This question is answered by
saying that while the district court is
Hm!ted IN the exercise of its jurisdic-
ton, still the supreme court will take
up the record before the district court
to see whether or not the lower court in
Voked the power properly belonging to
1t. and even though the lower court had
jurisdiction of the subject matter Of
the action before it, yet if in an anciI-
larry matter, such as appointing a re-
csiver, it did not have any evidence be-
fore it upon which it could properly set
in motion its power to appoint a re-
celVer the supreme court will issue
writ of prohibition. But in this case in
the showing made the supreme court
says the allegations of the complaint
We're apparently sufficient to give Judge
Clancy jurisdiction to appoint a receiver
pending the litigation, and it is decided
that it is beyond the power of the su-
preme court to issue the writ. The court
ordered the remittitur held for 10 days
during which time it is expected that
| at the time appointed proceedings Will
be instituted by the Boston & Montana
company to prevent a receiver being
appointed.
The effect Of the decision is to permit
the district court to proceed in the mat
ter of appointing receiver. but the
court expressly refuses to pass upon the
question whether the district court can
Boston & Montana company. inasmuch
as these questions We're not argued and
are of such Importance that the court
says it feels that it ought not to pass
upon them at this time.
During the course of its opinion, the
court says: "Relators Boston & Mon
tana err in assuming that the ultimate
purpose of O'Connor's action is simply
to bring about dissolution of the COM
no,
this erroneous assumption that they
have formulated many of the PROPOSE
tions of law advanced in their brief.
The action, though seeks other and
different relief as well. The expressions
of the complaint do not allow us to con-
fine its objects exclusively to the OBJ
tanning Of a dissolution of the Montana
company. On the contrary, full equit-
able relief is asked, the principal feature
of which is that the Montana company
be reinvested with the millions of dol
lars worth of its property which has
been illegally transferred by the trus-
tees thereof to foreign corporation, of
no solvency and beyond the jurisdiction
of our courts and the reach of the
shareholders who dissent from the
transfer by the Montana company, and
to secure an accounting for the vast
sums of money claimed TO be due to the
the time of the illegal transfer alleged
If, in asking for a dissolution of the
Montana corporation, or in lieu thereof
for the appointment of trustees, he has
asked more than the law will give him.
it is nevertheless beyond our power to
say in this proceeding that the district
court has no jurisdiction to proceed with
his case, and to grant him such relief as
he may be entitled to under his bill The
WI oh
sustain a holding that where plaintiff
in an equity suit, showing himself en-
titled to a measure of relief, asks more
than the law should give him, the dis
trict court having jurisdiction of the
subject matter of his bill will exceed
its jurisdiction and extend it's relief be-
yond the limits of its power In the
absence of very clear showing to 1he
contrary, we are obliged to act upon
the theory that the lower court will
confine itself within its proper limits
and go no farther than it legally may.
The appointment of a receiver is asked
as ancillary to the suit and the pen
dente lite only. He is to take posses
sion and manage the affairs of the cor
pOration under the direction of the court
while the charges made by O'Connor
against the trustees of the Montana
company are beirg investigated upon a
trial. AS a shareholder O'COnnor has a
right ito ask this relief, and in doing
SO he has brought himself squarely
within the doctrine of state vs.. district
court 13' Montana, 324 the reasoning
of which we must approve and here
apply. 1t does not necessarily follow
that the appointment of a receiver pen
dente lite means the dissolution of the
corpora don or its destruction. Ii means
that the district court, if it acts, will,
in the best interests of all concerned,
appoint some one, to be regarded as it's
officer. to take charge of the property
in litigation, but the corporations ex-
istence need not be destroyed. The per-
son to be appointed is to be clothed
with the power to receive and preserve
the property and assets of the corpora
ton and its shareholders for the benefit
of whoever may finally be declared to
be entitled to them. The principle upon
which the court may act is that in order
to secure the property, the subject
matter of the litigation, to it's owners,
the court itself by an order appointing
a receiver may say that it is ineouit-