Daily inter mountain. [volume] (Butte, Mont.) 1881-1901, 1901-02-18

and prohibits defendant from seeking
redress for the commission of said
wrongs committed against it in the
courts of this state. and therefore denies
to the defendant the rights secured to it
by section of article 8 of the constitu-
ton of the state of Montana.
1.-THE restraining order is made in d.
rect violation of the ruling of the supreme
court of the state of Montana in NJ. o. +.
VS.. b. & NJ. company. 22 Mont, p. 169,
where the supreme court vacated a SIM
liar order made by this court, holding
there was no authority in the court to
make such an order. Defendant moves
the court to vacate 50 much of said order
| as requires the defendant to show cause
on the 18th day of May 1901, why "a re-
Ceiver should not be appointed over all
the property of the Nipper lode OH the
following grounds, to-wit:
THE pOstpOnement of the date of the
hearing of the application to the 10th
| of May, 1901. or three months after the
filing of the motion, is contrary to the
rules and practice of this court and vio-
| lates the spirit and letter of the statute,
section 1922, of the code of civil procedure.
which provides that when written notice
Of motion is necessary it must be given
| five days before the appointed time for
the hearing. if both parties reside in the
county where the court is held.
THE function of an order to show
! cause, when it takes the place of a writ
ten notice of motion, is to prescribe a
shorter time than would be required if
written notice of the motion be served.
and not to lengthen or extend the time
of notice ,as will appear by the terms of
section 1922 of the code of civil procedure.
Chn Il
because the petition upon which the same
is based does not state any cause of ac-
ton or facts which would justify the APP
pointment of receiver.
1.-The order was improvdently granted
because it appears upon the face of the
pc ttion therefor that the application
therefor was not made in good faith, but
with fraudulent intent of protecting one
Arthur P. Heinze, the lessee of F. Angus
tus HeinZe. in the mining and extracting,
and carrying away of ores in violation
of the admitted legal rights of the de-
PENDANT thereto, and such fraudulent in
tent is made to appear as is shown to
the court by the terms of the petition
| itself whereby the appointment of re-
| ceiver is prayed for without authority
| il the receiver to Interfere with the
mining operations Of Thomas Mclaughlin
or Arthur p. Heinze. and an injunction
is sought restraining any and all of the
defendants, except the defendant Arthur
P. Heinze. from in any manner or way
| interfering with the said receiver. which
intent on the part df the petitioner is fur
| Their shown in the terms of the order TO
show cause herein, which requires the
| defendant to show cause why the said
receiver SO to be appointed should not
| he permitted to work the said mine in
| such manner and as to fully protect said
| property, subject to any right which the
| receiver, heretofore appointed has or
| which the defendant. Arthur p. Henze,
| has by virtue of certain lease made by
and between the plaintiff and the said
defendant Arthur p. Heinze, and the eX-
| tensions thereof.
/ 1.-The order was improvidently granted
because the petition prays for the APP
uointment of a receiver who. if appointed
with such powers as are mentioned in
! the petition. would have neither pos
| session, nor right of possession. nor con-
! t, oil, nor custody, nor ability to protect
| the property of the defendant from
depreciation. now being committed and
| intended to be continued by F. Augustus
Heinze. Arthur p. Heinze ad Thomas
Mclaughlin