The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1899-08-12
TO Be DECIDED MONDAY
Pennsylvania Case Argued in the
District Court.
BEFORE JUDGE CLANCY
Motion to Dismiss by the Boston &
Montana Opposed by the Mon
tana Ore Purchasing
Company.

| the Boston & Montana are opposing
| parties came up for trial before Judge
Clancy of the district court yesterday,
but the defendant, the Boston &
| Montana company, interposed a motion
to dismiss the suit on the ground that,
the plaintiff having already dismissed
the legal cause of action, the equity
cause, which stood for trial, could not
be maintained. The arguments on it
consumed the entire day and will be
| decided by the court on Monday.
The action is known as the Pennsyl-
vania case and was brought by the
Montana Ore Purchasing company to
establish it's title to certain ore bodies
in the Pennsylvania, which, 1t is
claimed, belong to the Johnstown vein
on it's dip, and the Boston & Montana
has been restrained from working on
the vein in question. Practically the
same issues are raised in the suit that
were involved in an action brought
some time ago in the United States
court in which the Boston & Montana
company was plaintiff, but which was
dismissed by the United States circuit
court of appeals on the ground that the
federal court did not have jurisdiction.
A talented array of counsel is en-
gagged in the case. The attorneys for
the Montana Ore Purchasing company
who were present in court yesterday
were John ]. Mediation, John w. Cot
ter, Frank E. Corbett. J. B. Clayberg
and Governor Smith. The defendants
attorneys We're John F. Forbis, Thomas
NJ. Patterson of Denver, William Seal
lon, w. H. De Witt and l.. o. Evans.
AS soon as the case was called for
trial yesterday morning, Attorney
John F. Forbis for defendant, pre-
Sented the motion to dismiss the case
or to suspend proceedings until an
action to determine the ownership of
the vein in controversy was brought
and determined. He said there were
two causes of action in the suit, one
a legal cause to determine the title to
the ore body in question, and the other
an equitable action, in which per-
manent injunction is asked for. In
May last the plaintiff dismissed the
legal cause of action and asked that
the equitable cause be set for trial,
which was done by the court, and the
setting subsequently continued until
the present time, and the equitable
cause is now the only one pending.
Mr.. Forbis read the motion, which is
as follows:
Now comes the defendant in the
above entitled cause, and moves the
court to dismiss the equitable cause of
action set forth in the plaintiffs COM
plant herein. or not to proceed with
the trial thereof until an action at
law has been commenced and deter
mined; settling the questions of title
to the property and veins or vein in
question, for the following reasons and
upon the following grounds:
Because plaintiff has dismissed the
legal cause of action instituted to try
the question of title and other legal
questions involved in the controversy
in this action, and the dismissal of the
legal cause of action should act as an
abatement of the equitable cause OF
action united with it.
Because the issues presented in this
equitable cause of action are legal is
sues and cannot be tried in an equit-
able action.
Because the plaintiff has not insti-
tuted any legal action to determine
the questions of title involved in this
equitable cause of action, and such is
sues, being altogether legal issues, can
not be tried in an equitable action, and
because the plaintiff has dismissed the
legal cause of action which was insti-
tuted to try such issues.
Because this being an equitable ac-
ton, the court cannot try the legal is
sues presented therein the same re-
curing, when demanded, jury for the
determination thereof.
Because the legal title to the prem
ises in question in this action as we'll
as to the veins in controversy herein,
have not been determined by law, or
in any legal action instituted for that
purpose, and a court of equity will not
undertake the trial of such question.
and will not undertake the determina-
ton of any equitable. action, involving
such legal questions until the parties
claiming relief have had such ques-
tons determined by law, or in some
legal action instituted for that pur-
pose
Because it appears, from the plead
ings in this action, that the plaintiff
has full. complete and adequate
remedy at law"
Mr.. Forbis. in presenting the motion,
said the question raised was an i'm
portant one, as it would determine a
matter of practice. He said the two
actions-law and equity-were never
brought separately. The question to
be determined in the action before the |
court is the question of title to the |
vein. the continuity and identity of the |
Johnstown vein upon its dip into and |
under the Pennsylvania, a question |
into which a court of equity will not |
inquire.
Mr.. Forbis believed that when the |
action at law was dismissed it sus |
pended the equity action until such |
time as the legal action is determined. |
By dsmissing the legal action the
ing in good faith and it sought |
only to enjoin the defendant from |
working the property without deter |
mining the legal title to the ground. |
To proceed with the trial of the equity |
cause would be overruling and refuting |
the constitution itself, which says a |
person is entitled to a trial by jury. |
Mr.. Forbis cited a number of author |
tiles to sustain his argument, including |
a decision by the United States circuit |
court of appeals.
Judge Mediation, in replying to Mr.. |
Forbis, said that if at any time there
had been any merit in the contention
OF the other side, it had long since
faded because of the delay in making
it. He said if the other side was sin
cere the question would have been
raised long ago and the court and the
parties to the action might have been
saved great deal of work and worry
Judge Mediation. however, declared
that there never had been apy merit