The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-12-17
M'GlNNISS CASE
THROWN OUT BY
NEW YORK COURT
Justice for Boston & Montana Com
pany-Director Flower Released
and Vlndlcated.
Especial to Inter Mountain.)


New York, Dec 1.-THE circuit court
of appeals today reversed the decision Of
the lower federal court which by agree
ment found A. r. Flower, one of the
Amalgamated company directors, guilty
Of contempt in refusing to make dep
osition in one of the MacGinniss- Boston
& Contana company's suits before New
York notary public. a.
Receiver asked For.
The suit was brought by Lamm ana
MacGinnis to have a receiver appointed
to take charge of the business and prop
erty Of the Boston & Montana Mining
company and to restrain that company
from paying dividends to the Amalga-
mated company.
1t was originally brought in the dis
trict court at Butte before Judge
Clancy, and was afterward removed to
the federal court of that state upon the
application of the defendant, the Anal
gamated company. >,
A similar suit was brought against the
Parrot company by the same plaintiffs;
and removed from the state to the fed-
eral court.
In that case the plaintiffs dismissed the
suit as to the Amalgamated company
recently, and then Judge Knowles re-
manded the case back to the district
court.
A third suit of a similar character
and for the same purposes was brought
recently by MacGinniss against the Bos-
ton & Montana company in Judge
Clancy's court, and the federal court
restrained MacGinniss from prosecuting
it until the suit first mentioned is set
tied in the federal court at Helena.
To Take Dispositions.
Some time ago the plaintiffs sought,
in the first suit named, to take the
dispositions of the directors of the BOs-
ton & Montana ana the Amalgamated
companies.
Notice of the taking of the depositions
was served there on the defendants, and
subpoenas upon the directors were is
sued from the federal court in New
York.
The application for the order to take
the dispositions was made upon the af-
f1davit of Franklin Bien, who stated that
the taking of proofs in Montana was
almost completed and that the deposit
tions wanted by the plaintiffs would
complete the taking Of evidence for pre-,
sentation to the court.
A. r.. Flower, who is q director in the
Amalgamated company, appeared before
the subpoena issued from the federal
court here.
But he refused to testify or make the
desired deposition upon the grounds that
the notice given was insufficient; .hat.
issue had not been Joined in the case,
and that, consequently, the notary had
no jurisdiction to take the depositi0ns.
Contempt h. Agreement.
Nv oit 1>xr< tv~
New York for contempt, and while the
court expressed the view that Mr.. Flow
er's position was correct and that no
contempt had been committed, it found
him guilty of contempt and fined him for
the purpose of having the question de-
termined by the circuit court of ap-
peals.
Macinniss Case Thrown Out.
Mr.. Flower appealed from the decision
to the appellate federal court and the
latter handed down it's decision today.
The court held that notices to take
dispositions given before issue is joined
are null and void.
reporter Of the Inter Mountain to-
day called on Mr.. A. ]. Shores Of coun-
sci for the Amalgamated company for
information touching the Montana end
Of the case. Mr.. Shores had already re-
ceived information Of the New York
decision and in reply to the reporters
query he said:
There is now pending in this suit in
the federal court at Helena a motion
to strike out considerable matter from
the complaints Of the plaintiffs.
"The order to show cause in the latest
suit brought against the Boston & Mon
tana company by MacGinnis. is. also
pending in that court. =.
Both matters have been set dOwntfor
hearing before Judge Knowles on Jan,
uary 2. 1902" 80