Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-02-25
SENT BACK TO LOWER COURT
FAILED TO MAKE GOOD ENOUGH
SHOWING IN THE SU-
PREME COURT
JUSTICES WERE UNANIMOUS.
Not Strong Enough Case to Stand Be-
fore Them-History of the
Famous Suit.
Special to the Inter Mountain.

Special to the Inter Mountain.
Helena Feb. 25.--The supreme court to-
dday rendered decision reversing the
judgment of the district court of Silver
Bow county appointing e. H. Wilson re-
ceiver of the Minnie Healey mine, and
remanded the case for action. The opin-
ion is by Chief Justice Brantly, Associate
Justice Pigott, concurring. Associate
Justice Miburn. not having heard the
argument, takes no part in the decision.
The suit was brought by F. Augustus
Heinze and the Johnstown Mining Co.,
against Carl Kleinschmidt, Jr.. admins
traitor of the estate of john D. Airport,
the heirs of that estate and Miles Finlen
for the determination of rights partici-
patton and sale of property and distribu-
tion of proceeds. Heinze alleged that
AL port had one-fOurth interest in the
property which was then in possession
of Kleinschmidt as administrator. and
that Heinze owned tive-eghts and the
Johnstown Mining company one-eight;
that Heinze was also the equitable own
er of an additional one-twentieth inheri-
ted by Caroline V. Kelly from Airport.
Kinlen claims the interests also claimed
by plaintiffs and also claims the Kelly
interest under purchase from her. but
Heinze claimed that Finien assigned it
to him and therefore holds it in trust
for him (Heinze) subject to payment of
$1,000. Finlen claims some interest in
the other four-twentieths held by the ALL
port heirs. but otherwise the property
was alleged TO be free from adverse
claims.
The petition for receiver alleged that
oe
the Airport heirs We're working the mine.
excluding plaintiffs therofrom and refus-
ed to account to them. claiming the right
to occupy and possess the who'e of the
ground. They claim they would be en-
titled to their proportion of the net val
tie of all ore extracted and share in the
expenses. but they say. Finen obtained
an injunction restraining them from do
ing any mining. falsely alleging they had
elected him from it AID taken posses
sion.
Fnlen afterwards began suit against
the persons from whom the plaintiffs had
acquired title, claiming he was entitled
to conveyance from them. ana this suit
is now pending in the United States
court. The appointment of receiver
therefore was asked in order that the
mine might be worked and plaintiffs Sc
cure their share of the proceeds Of the
ore extracted. Heinze also alleged Fin
len had desisted from prosecuting the
injunction suit against the Boston &
Montana to prevent it from mining
ore in the continuation of the Minnie
Healey lode into Piccoln and Gambetta
ground, though he knew the vein they
were working had it's apex in the Minnie
Healey: that it is to the interest of all
concerned to have the vein worked and
it's identity established. On February
s. 1901, Wilson was appointed receiver
to take possession of all interests claim
ed by the plaintiffs. to enter all the
workings with the administrator of ALL
port and the heirs other than Kelly, and
operate the mine. to have the ore re-
duced, and to do development work suf-
ficient to demonstrate the ownership of
the veins being worked in the Piccolo
and Gambetta, to obtain an accounting
from the Allport heirs. but to extract
only as much ore as would be necessary
to nay expenses.
The appeal was from the order ap-
pointing him. In the opinion the court
assumes that each of the Airport heirs
other than Kelly is the owner of an un-
divided one twentieth interest and that
Finlen holds legal title to the one-twen-
tieth interest decided from Kelly. Fin
len leased a three -fOurths interest from
John Devlin, Mary Devlin and Mary f.
Reilly October 16, 1896. with the right of
purchase under certain conditions, which
have been fulfilled. But the Devlins and
Reilly, after the lease to Finlen, sold
their interest to Heinze and the Johns
town Mining company, and Heinze is
alleged to have obtained a contract from
Finlen in November, 1885, for the trans
fer of the leases Finlen held. On this
point Finlen has suit pending in the
United States court to compel convey
ance, and has an injunction suit pend :
ing in the Silver Bow district court to
eject Heinze and the Johnstown COM
pany from the claim.
The court says it has nothing to do
with the merits of these controversies
as to title, except as to Finlen's motives
In connection with them. 1t says:
LAS to charges of bad faith and wrong
doing on the part of Finlen in bringing
these suits, and his sinister purposes
therein toward the rights of the plain
tiffs. there is nothing in evidence to sup.
port them, beyond the fact that these
s0ts have been brought and are now
pending. There is nothing to show he
brought them in bad faith, or that