The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-04-14
CLANCrS RECEIVER DOWN AND OUT
By Its Decision Rendered Yesterday the Supreme Court
Orders the Boston & Montana Property Turned
Over to the People Who Own It.

action as fixed and stable as the eter-
nal principles of truth which form its
basis So it was that we steadily re-
fused to depart in the slightest degree
from the law, as we understood it, and
as it has been eXpounded for genera
tions by the decisions of courts of the
highest character, and the comments of
the most i1lustrious jurists, not only of
old, but of the present day. Finally
the defendant Montana corporation has
assented to the jurisdiction of the lower
court, surrendering it's property to the
receiver and instead of longer seeking
relief by invoking further eXtraordin-
ary and original writs at the bar of
this court, it now stands in the attitude
of an appellant praying for a stay of
proceedings by which it's enormous
property may not be suffered to remain
for operation or management in re-
ceiver's hands, at least until it's appeal
is heard and determined in this court,
and making for a restitution of its
property to its officers and agents until
it may be otherwise ordered by this
court; and it announces wat, if such
stay and restitution are granted, it is
willing to accept any conditions which
may be imposed by way of bond to fully
indemnify plaintiffs against possible
loss or damage.
This change in the remedy pursued
carries with it an extension of the re
lief which may be granted IT opens
for examination and for determination
not alone the question of the power of
the lower court but it also authorizes
us to decide whether that power has
been wisely or unwisely exercised in
making the order appealed from. 1t
goes even further. in that it gives this
court, at this time. the clear right to
grant stay of proceedings under the
order appealed from pending the deter
nf ha
satisfied that in order to make such a
stay effective this court has full au-
thority to make any order it thinks
proper requiring the restitution of the
property now possessed by the receiver
to the corporation entitled prima facie
thereto. devy VS.. Goldberg, 40 Wis,
30S: Hill VS.. Finnegan, "a Cal, 493).
ITO the argument that a stay includ-
ing an order of restitution is equivalent
to decision that an appeal lies from
the original order in the case appoint
ing a receiver and from which an ap-
peal does not lie in this instance, it is
complete answer to say that mas
much as an appeal does lie, and is con-
ceded 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
scrutiny of matters which were before
the district court when it made the
| original order appointing the receiver.
although from that original order there
was and is no appeal from an order re-
fusing to vacate an order appointing a
receiver. by cOntining the investigation
to conditions which may have arisen
since the enactment of the law afford
ing such remedy. This view would cir
cumscribe the investigation within
limitations not expressed or implied In
any fair construction of the text of the
law, and might result in positive in
ability to have a receiver discharged or
dispossessed until an appeal in tho
principal suit could be finally heard and
| disposed of. This would fritter away
an important law by narrow, techni-
| cal construction unWarranted by the
| letter and the true spirit of the stat
| ute.
I'VE find no definite line of time on
one side of which are the matters which
| can be considered on a motion to va
cate an order appointing a receiver and
on the other those which cannot, and
the court will not undertake to fix such
one The Legislature could have done
| so, but it did not; hence we must regard
! the statute as authorizing an examina-
| ton into everything back of the order
| of refusal and upon which such order
| was based The remedy by appeal from
| the order denying the motion to Vacate
the order appointing a receiver being
| clear, it matters not that certain ante
| cedent order is not appealable. for un-
| der the appealable order the court must
! consider What is relevant, and rele-
vancy is not affected by the fact that
| appeal from the antecedent order does
| or does not lie.
! Nov, as to the merits on the prima
facie showing, and to support this ap-
plication for stay: Defendants, rep
resenting 149. 900 out of 10000 shares Of
stock of the corporation, ask that this
| corporation be taken from receiver S
hands. Their property is worth about
$40,000,000, is paying large dividends
and is solvent in all respects. having
upwards of $1,000, 600 in cash at present
in it's treasury. By deed. prima facie
sufficient, it was reinvested before this
motion to vacate the order refusing to
| discharge the receiver was made, with
all it's property. which it heretofore, in
April. 1898, Illegally transferred ITO a
| New York corporation. This reconVey-
ance is, prima facie. an attempt to un'
do, and is an apparent undoing of the
wrong done to plaintiffs by the at
tempted transfer. held ultra wires of
| the Montana corporation in Forester ct
al vs. B. & NJ. c. c. & S. M. CO.. supra;
| moreover, the corporation has offered to
make a full accounting before court
or referee for all ores mined, shipped
and sold and all moneys received and
| disbursed on all accounts since the IL
legal transfer and up TO the present
! time 1t has also signtied its willing
ness to allow the injunction restraining
it from transferring its property to a
| foreign corporation to be made per-
petual. 1t likewise offers to suffer
| Judgment against it canceling the con-
veyances to the New York company and
| declaring valid the reconVeyance made.
| Furthermore, it says, and makes prima
| facie showing to support the statement.
! that the management of the receiver
| appointed would not be as skilled as
! operation by its own servants and
would not result as adVantageously to
the many shareholders.
These matters. among others dis
| Ip hi -kF