The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-03-24
MOTION TO QUASH FILED
Another Move in the B. & nj. Re-
ownership Case.
SEVERAL REASONS GIVEN
The Order Appointing Kinds Has Not
Been Set Aside and the Court and
Receiver Is in Possession of the
Business and Property.
Special Dispatch to the Standard.

Special Dispatch to the Standard.
Helena, March CIV. Y Pember-
ton and John B. McClernan, attorneys
for Judge Clancy and T. r. Kinds, filed
motion with the supreme court to-
day to quash the alternative writ of
prohibition and to dismiss the case of
the Boston G. Montana company organ
lied under the laws of Montana VS..
the Second judicial district, William
Clancy, judge, and Il. r. Kinds A
number Of reasons are set forth in. the
motion why in the opinion of the court
and the receiver of the Boston &, Mon
tana that the writ should be quashed
and the proceedings dismissed.
The substance of the reasons assign
ed why the writ should be uuashed are
because the order appointing Kinds re-
celVer for the Boston & Montana has
never been set aside, modified or va
Gated. The petition for the writ fail
ed to show that the Judge or the re-
ceiVer had done anything in excess of
the jurisdiction of the court. The
court and the receiver are legally in
possession of all business affairs and
property, but for the writ of prohibt-
ton the court and Defendant Kinds
would have full jurisdiction of the
property; 1t will be necessary to take
evidence to determine whether the
proceedings in the receivership matter
should be stayed, because the supreme
court has no original jurisdiction, or
any jurisdiction, to hear evidence
whether the receivership should be
stayed or whether full and legal con-
Veyance has been made from the New
York to the Montana corporation or
whether the New York company has
fully or at all accounted to the Mon
tana company or delivered over all of
the property: because the petition for
the writ shows that the affairs of the
New York company and the Montana
company are the same and the account
ing claimed to have been made was
made by such persons to- themselves
land said persons stand in the position
before this court of admitted wrong
doors with reference to property of the
petitioners because it appears that
no accounting has been made by the
New York company concerning the
property and business of the petition
err, there only having been an account
ing by its officers to themselves for
the net proceeds of the business and
the mining operations carried on by the
New York company with petitioners
mining property: because the district
court has full and complete jurisdic-
ton to require said accounting; be-
cause the district court has original
and exclusive jurisdiction to hear and
determine all matters presented with
reference to stay of proceedings, ac-
counting and reconveyance of the prop
erty and the discharge of the receiver
and to require said receiver before be-
ing discharged to render a full ac-
count of all his proceedings and to al
low his compensation; because any ac-
counting that could be made by the
New York company could only be made
to the district court and the receiver
and could not be made to the plaintiff:
because it appears that the New York
company was and is enjoined by an
order of the district court from maxi
ing any conveyance or delivery of any
of the property or business for which
the receiver was appointed to any ono
but the receiver; because it appears
that Kinds is entitled to the possession
of the business and property and that
plaintiff has refused to deliver the pos
session to him and because no ac-
counting has been made to him by the
New York company and because he
has not been permitted to examine into
the affairs and business for which he
is receiver and report the same to the
district court.
The motion will be heard next Sat-
urday.
The supreme court to-day issued a
subpoenae for Clinton G. Clark, clerk
of the district court Of Silver Bow
county, to bring before the court the
records and papers of the lower court
in the case of Forester and MacGin-
mis- vs. the Boston & Montana for Sat-
urday's hearing. I