The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-11-29
Judge Lindsay's Ruling in the
Oden-Nipper Case.
TO MODIFY INJUNCTION
An Effort to Get an Additional Ruling
by the Defendants Was Unsuccess-
ful-Various Other Matters
Considered


defendants in the -Nipper mining
case to modify the injunction, made an
order declining to hear the matter The
case is that of the Washoe Copper COM
pany against Edward A. Hickey, f.
A. Heinze and others. The courts or
der read as follows:
I'm this case. the defendants have
filed a motion to obtain an order to
show cause why the temporary injunc-
ton, pending the trial of this action,
issued herein on the goth day of May,
1899, should not be dissolved or modi-
fled to such an extent as to practically
dissolve the same.
The court quite recently investigat-
ed the facts Of the case, and at that
time reached the conclusion that a tenn
porary injunction ought to be granted,
and issued it accordingly.
THE defendants now, by motion, as
sert that they are in a position to 60
into the facts more deeply, and that
they are now able to throw more light
upon the questions involved in the con-
tention between themselves and the
plaintiff, and ask that the court enter
upon another hearing to show cause
why the injunction already issued
should not be so far modified as to
practically dissolve the same.
1T appears to the court from the
affidavit presented with the motion for
a dissolution of the said injunction
that such a second consideration as is
asked might involve hearing as eX-
| tensive as would be necessary to finally
try and determine the action itself.
The plaintiff contends that such a
| second hearing to show cause ought not
! to be entertained.
While the court may have jurisdic-
| ton to enter upon a second intermedi-
ate hearing to show cause why the tenn
porary injunction should not be dis
solved or materially modified it would
| seem to the court that such a hearing
in this case ought not to be undertaken
where it appears that it would prac-
tically necessitate as extensive trial
as will be necessary to finally determine
the action.
THE objection to consideration of
this order to show cause is accordingly
sustained"
The courts order was not entirely
satisfactory to the defendants attor-
neys, and in an effort to get an addi-
tional ruling on the record a somewhat
interesting, If not heated colloQuy en-
sued.
Il understand the record will show
that the court refuses to hear the mo
ton, and that is as far as the courts
order extends in the matter" said Mr..
Mediation.
THE record will show what is con-
tanned in the courts Written order and
all that is therein contained replied
the court
Mr.. .McHatton-We demand now. if
the court please. on behalf of the de-
PENDANT, that the court hear the appli-
cation of the defendants which is pre-
sented by their motion and affidavit to
"a tut, r
to the court that l simply desire to-
have ruling Of the court appear upon
the record, SO that there may be no
question about it, as to whether the
court refuses to hear the application
or not, and that I think we are entitled
to. l would suggest this to the court
in support of this application. Our su-
preme court has said that the opinion
of trial court is no part of the rec
ord in the case Now, your honor has
rendered an opinion in this matter,
and the question which I suggest at
this time and the demand which I make
at this time is simply made for the
purpose of having the record, aside
from the opinion, show that the court
refuses to hear the motion: otherwise
some question might arise as to this
opinion of your honor being subject to
review at all or be a part of the rec
ord in the case, and it is for this rea-
son make the request now, not to be
at all captious about the matter, but
1t seems to be we are entitled to sim
pie entry upon the record to the effect
that your honor, the court. refuses to
near the application; that is all I ask
MI. Walsh-Whatever order may be
entered in this matter is properly done
was going to suggest, if your honor
please. the courts order, in view of the
opinion expressed by the court. that
the order to show cause be vacated and
dismissed and the motion to dissolve
TINS injunction on the showing made
be denied. That would seem to be the
proper thing. in other words, it seems
to me 1t would be entirely pertinent to
so into It; that the motion be denied
without any inquiry into the merits Of
it. for the reason stated.
Mr.. MeHatton--If the court please,
this matter comes up in this way: We
present this application and plaintiff
comes in and objects to the court hear
Ing 1t at all. Now, the opinion Of the
court IS that the court will not hear
it, now that is all there is to the mat
ter. Now, counsel suggests the vacat-
ing of the order to show cause and
numerous other things, and it is lust
to avoid the possibility of this matter
getting into tangle that I~now ask
the court to make plain, simple order
in accordance with the courts opinion
record, refusing to hear the defendants
motion in this matter. We present the
motion and plaintiff comes in and OBJ
jects to the court hearing it at all
That objection is now sustained
Therefore the court, in its view, de-
clines to hear the matter: all We ask
is that the record. aside from the opin-
ion of the court as rendered, show SIM
ply the fact that the court refuses to
hear the motion to vacate the injunc-
ton. I certainly object now, and l shall
certainly at all times hereafter object
to the court going into the matter of
vacating the order to show cause and
denying the motion, since the court has
not heard the motion at all.
The court-It occurs to me that the
ruling made by the court upon the OBJ
lection is sufficient for all purposes. and
the court having ordered in accordance
with the objection to the consideration
of the motion at this time, that the OBJ
lection be sustained. that is all the
court can do or will do
Mr.. McHatton-I will ask your honor