The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-02-21

able that any party to the litigation
should have possession of the property
of the Montana company and the issues
and profits thereof pending the litiga-
tion in which O'Connor, as a sharehold-
err asks equitable relief. We cannot
grant the writ upon the showing made
of Judge Clancy's prejudice or enmity.
That argument must be dismissed as
without any foundation of record. The
fact that Judge Clancy does not like
Mr.. Forbis, one of several counsel for
REALTORS, and that he has decided var-
Gus cases against relators and is on
friendly terms with the officers of the
Montana Ore Purchasing company and
may not select a fit person as receiver,
II he appoints one, are far from Suffi-
cient to oust the lower court of jurs-
diction. 1t is also said that the su-
preme court, by virtue of its constitu-
tional power to exercise general super
Visory control over all inferior courts,
has the power to grant these REALTORS
felief from the danger which they say
surrounds them. The power of this
| court is not unlimited, but expressly
| authorized and vested under such regu-
| lations and limitations as may be pro-
vided by law (article 8, section 9 of the
constitution of Montana). In the mat
ter of granting writs of prohibition
| there are statutory regulations and linz
| itations, as discussed in the former part
of this opinion. Therefore, power to go
| outside of them does not exist.
IF the lower court shall issue the
| injunction prayed for by O'Connor en-
joining the individual defendants sued
from exercising functions as trustees
of the Montana company, or enjoin the
New York corporation in respect to the
| matters mentioned in the order to show
cause, it's action can be reviewed by
appeal from such order; or if any ac-
ton may be taken suspending the
powers of the defendants as directors
or removing them from their positions
as trustees of the Montana corporation,
remedy may be sought by appropriate
proceedings. The power of court of
equity to suspend or remove trustees
of a corporation is a very doubtful one.
Whether it exists, or to what extent it
goes If it exists, has not been argued
very fully by REALTORS counsel and is
not discussed at all by the defendants.
Under such conditions, cosidering the
great Importance of the question, we
prefer to refrain from expressing an
| opinion upon it, particularly where no
unusual harm is apt to ensue by not
doing so at this time. The writ of pro-
hibition being largely a discretionary
one. we have concluded not to issue it
to prohibit the court from acting in this
respect. In the other respects herein
before discussed, relators have not
made case to entitle them to it's issu-
| ance. Writ denied and petition dis
missed"
Another case of about equal import
ance, since it involved many knotty
points, was also passed upon to-day.
1t was entitled Stadler & Kaufman VS..
the First National bank of Helena and
Butte. In Julv 1896, Stadler & Kauf-
man made a note to the First National
| bank for the sum of $6,0O0 The firm at
| that time had some 900 on deposit
! in that bank in certificates of deposits,
| drawing interest at the rate of per
cent per annum The certificates not
| being due and the firm not desiring to
| lose the interest thereon. they bor
| roWed the $4,000 above mentioned for
60 days. The bank soon afterwards
| transferred the note to the First Ma
tional bank of Butte without notifying
Stadler & Kaufman. On Sept. 4. the
Helena bank failed to open it's doors.
and on Sept. the firm was notified
that their note was in the hands of the
Butte bank which asked them to pay
the note. The suit was then COM
menced against the receiver of the
Helena bank so as to set off their de-
posits in the defunct bank against the
note. Judge Henry C. Smith. before
whom the case was tried, found that
these deposits cannot be set off against
the note with the exception of $413.17,
an account subject to check, and that
the Butte bank was entitled to judg-
ment against Stadler & Kaufman for
the amount of the note and $500 attor-
neys' fees. From the whole Judgment
Stadler & Kaufman appealed and the
Butte bank appealed from the judg-
ment so far as the set off of s413.17
against the $4,000 note is concerned.
The supreme court, in an opinion by
Justice Pigott, going deeply into the
questions of set-offs and counter
claims and as to when a bank is SOL
vent and insolvent holds that the dis
trict court was correct with the excep-
tion of the set-off of s413.33 and modi-
ties the judgment to that extent.
George A. Mcfarland of Butte was
admitted to practice to-day bv the su-
preme court upon a certificate issued