The Anaconda standard., 1899-07-11
PETITION IS DISMISSED
Boston & Montana Appeal From
Judge Clancy.
REASONS NOT MATERIAL
Supreme Court Finds Judge Clapcy's
Conduct Unworthy of Emulation.
Modification of Rules
t Denied.
Special Dispatch to the Standard.

. special lDlspatCn TO tne STANDARD.
Helena, July 1O.-The petition of the
Boston & Montana, asking of the su-
preme court leave to prove certain ex-
ceptions which it is claimed Judge
Clancy refused to allow in petitioners
bill of appeal from his ruling denying
the motion to vacate the order appoint
ing Kinds receiver, was to-day dis
missed by the court in an opinion by
Justice Pigott. In the settlement of the
bill of exceptions the Boston & Moa-
tana counsel claimed that the lower
court permitted counsel for the opposi-
tion, Forester and MacGinnis, to have
incorporated some amendments that
are said to be at variance with the
facts attending the making of the order
appealed from, and application was
made to have bill of exceptions proved
and certified by order of the supreme
court under the provisions of section
1157 of the civil code. A referee was
recently appointed by the supreme court
to take testimony in support of the Bos-
ton q Montana petition.
In dismssing the petition, the court
holds that the amendments allowed by
the lower court We're immaterial. The
court reserves all questions which
might arise where the amendments
are material, as to the power of the
court to remodel a bill of exceptions,
allowed by trial jury, holding that in
the present application it was neither
necessary to interpret or construe the
section. An amendment to the bill of
exceptions that was allowed by the
lower court set up that the lower court
had refused to grant the motion to dis
charge the receiver because the defend
n
and counseD stood in contempt of
court. To this Judge Clancy had added
that it appeared clearly from the evil
dence presented that the defendants
had clearly violated the order appoint
ing a receiver and We're doing every
thing in their power to avoid compli-
ance with the same, although the tes-
timony taken by the referee did not
show that such reasons We're an
nounced at the time the order was
made. In discussing this addition TO
the amendment in question, the su-
preme court says:
THE testimony taken and returned
by the referee shows very clearly that
no such reasons were announced, either
by express words or by implication, at
the time the order was made, and that
il they existed they were known only
TO the judge of the court, who omitted
e to reveal or confide them to those
whose interests were, as he evidently
believed, seriously affected thereby.
But the reasons so given are not ma
terial to any issue or question present
ed on the appeal. ana this court, al
though it may disregard, has no power
by virtue of section 1857 or otherwise
to strike out such matter from bill
1T may be conceded that the trial court
might justly have refused to entertain
the motion to discharge the receiver on
., hot ha loft dom re
then in, or perhaps even charged with,
contempt of Its order or process, or to
decide it until the moving parties had
purged themselves of a contempt
brought to, the courts knowledge after
beginning Of theThearing. In this case,
however, the court did not refuse 10
hear the motion, neither did the court
decline to decide Both.a hearing and
determination were had and made, re-
spectiVely, ana in d matter not of mere
favor or privilege to a litigant, but in
volving substantial rights, A court can
not without committing gross and pal
pable error punish party charged with
contempt by deciding against him the
cause or proceedings in which the con-
tempt is alleged to haye. occurred; if 1t
could, then, for instance, a demurrer in
terposed to an insufficient complaint
, may properly be overruled because the
demurrant is in or is charged with con-
tempt; If it could do so, then the court
can rightly direct the jury to find
against party in contempt, although
. he would, except for the contempt, be
entitled to recovery. Such practice
would be trayesty of justice. 1t will
not be tolera ted in land where the
fundamental principles of the common
law are the rules of action"
In conclusion, the court says: "Coun-
sci for the plaintiffs suggest tenta-
& lively that the district court and judge