Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1899-02-20
tom KINDS
IS RECEIVER
Supreme Court SustainS the
Lower Court.
O'C0NNOR VS.. THE B. & NJ.
Until the Case is Tried on Its Merits
the Receiver Will Manage
the Property.
Special to the Inter Mountain.

special " the inter Mountain.
Helena, Feb. 20.--The supreme court to-
day in an exhaustive opinion by Justice
Hunt declined to issue the writ of pro-
hlDlton prayed for by the Boston and
Montana to prevent Judge Clancy from
carrying out his ruling in the case of
Burdette OConnor vs. the Boston and
Montana for appointment of a receiver
and accounting. The court holds that
Judge Clancy has jurisdiction and that
upon the showing made the company is
not entitled to a writ.
| The effect of the decision is that Kinds
will be placed in charge as receiver pend
! ing the trial Of the issue alleged in OCon-
/ nors complaint, unless of course the Bos-
! ton and Montana commence other pro-
, ceedings to prevent his assuming charge
AS soon as the court announced it's de-
! cision Judge Dewitt asked for stay of
! the courts Judgment The court granted
! ten days. During that time it is pre-
sumed more proceedings to keep Kinds
out of the receivership will be COM
! menced.
(, Discussing the question involved in the
appointment of a receiver and other al
lcSollo1o lilC Coull oeiS III POI ll'
THE appointment of receiver is asked
as an ancillary to the suit and pendente
lite only. He is to take possession and
manage the affairs of corporation under
direction of the court While the charges
made by O'ConnOr against the trustees
of the Montana company are being in
vestigated upon trial. AS a shareholder
O'COnnor has a right to ask this relief
and in doing so he has brought himself
within the doctrine OF the State
VS. District Court IS Mont, 324 the rea-
soning of which we must approve ana
here apply. 1t does not necessarily follow
that the appointment of a receiver pen
dente lite means a dissolution of the cor
poration or it's destruction 1t means that
the district court if it acts will in the pest
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 existence need not pe
!, DESTROYED. The person to be appointed
is in law an Indifferent one, to be clothed
;, with the power to receive and preserve
the property and assets of the corpora
tion and its shareholders for the benefit
of whoever may finally be declared to be
entitled to them. The principle upor
which the court may act IS that IN tht
order to secure the property, the SupJec'
matter of litigation, to its owners, the
court itself by order appointing receiver
tlaI IL is llGtuitcDiN .ii''N
narty to litigation should have possession
Of the property of the Montana company
and the issues and profits thereof pend
! ing the litigation in which OConnof' al
a shareholder, asks an equltable snare
y I'VE cannot grant the writ upon the
showing made of Judge Clancy S pfeJu
dice or enmity. That argument must oe
disn2 ssed as without any toundatlon VI
; rncord The fact that Judge Clancy does
, NOT like Mr. Forbis, one of seVeral couh.
/ sol for REALTORS. and that he has decldeC
various cases against REALTORS ana IS Oh
friendly terms with the officers Oh the
!, Montana Ore Purchasing company, anc
NAV not select a fit person as receiver
: if he appoints one, is far from suff1clen
to oust the lower court of jurisdiction.
|, "Jf the lower court shall issue the IN.
/ junction prayed for by O'Connor enJoln-
, ing the individual defendants sued from
exercising functions as trustees OF the
! Montana company. or enJon the Ne"
York corporation in respect TO matters
: mentioned in the order to show cause, Its
action can be reviewed by appeal from
, such order; or, if any action may be
! taken in suspending the powers of de-
! PENDANTS as directors, or removing then
from their positions as trustees of the
Montana corporation, remedy may be
sought by appropriate proceedings.
The power of a court of equity to sus'
is very doubtful one. Whether it exists
or to what extent it goes if it exists, has
not been argued very fully by relators
counsel and is not discussed at all by de-
J PENDANTS Under such conditions, con.
sidering the great Importance OF the
question, we prefer to refrain from eX-
pressing an opinion upon it, particularly
y where no unusual harm is apt to ensue
by not doing so at this time.
"A writ Of prohb bition being largely {
. discretionary one we have concluded mo-
! to issue it to prohibit the court from act
; ing in this respect. In other respects
hereinbefore discussed REALTORS have no
made a case to entitle them to its lssu-
ance. The writ is denied and petition dis
, missed
The court also handed down a decision
! in the case of Stadler and Kaufman VS.
!: First National bank of Helena and Butte
! modifying the judgment of the lower
court rendered here several months ago