The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1903-09-03
REFUSES
TO GRANT MOTION
HOLDS HE HAS JURISDICTION OF
AMALGAMATED COPPER
COMPANY.
GOES ON WITH THE HEARING
Would Not Dismiss Action, as Il Affects
Payment Of Dividends and
Transfer Of Stock.


MacGinniss and others III his cour, today
The hearing was still in progress this after.
noon al last accounts.
Judge Clancy this morning made his rul=
ing OF the momenlous question presented
at The hearing yesterday, OF whether OF not
he had jurisdiction OF the Amalgamatcd
Copper company.
lie took the view that he had and lie
overruled the motion asking him to dis
miss the order to show cause and the in.
junction i'll SO lar as they affected the
payment Of dividends or the transfer of
stock by the Boston x Montana company
Motion Made Yesterday
The motion was made yesterday morn
ing, and urged during the rest Of the day
The stand was taken by the defendants
that the court could not adjudcatc the
rights Of the Amagamated company and It's
stockholders without their having been
brought under the jurisdiction OF The court.
and that the court had never acquired such
jurisdiction.
William Scailon, president OF the Ana
conda Copper company. was on the stand
Giving oral testimony during the day hav-
ing been called To testify 10y Judge Ne
llatton. counsel for the plaintiffs.
OveTules Shores Motion.
The first thing the court did when the
case opened NJ 10 o'clacl: was tn over
rule the motion OF MIR. Shores To dismiss
Che order to show cause and The injunc
ton SO far us they forbade or contemplated
iofbidding the payment of dividends by
The Boston x Montana company to It's
stockholders or the transfer Of lis stock
The court said: "Well, gentlemen, /
have considered this motion made here,
and the United States court OF appeals
aaid the federal court had no jurisdic-
lion, and that the state court had and
think ! have jurisdiction IN the matter,
aud the motion will be overrulcd."
MIR. Shores took an exception.
Judge Mediation then asked 10 have
William Scallon, {. W. Goodale and !. II.
Vivian sworn as witnesses.
Mr.. Shores objected 10 the plaintiff be-
ing allowed to put in any oral evidence,
and based the objection OH the rules Of
ne court and the statute which in his
'pinion, confined the evidence 10 support
~ application for an Injunction and re-
ccivcfship to afhhidavits.
I'VE shall object TO the plaintiff nut,
ting in any oral evidence. and we will
raise the objection now. Under the rules
cf the court and the statutes an aupli
cation OF the kind in this case must he
Supported by afiidavits and cannot Lc sup
Ported by any other proof" said Mr..
Shores.
IF the defendant offers oral proof. then
20 may the plaintiff, but moi Otherwise.
The courl rule is plain. II may not al
ways be insisted on, but there is a right
10 do So
Reads the Court Rules.
Mr.. Shores then read the court rules
"liieh said that the application must be
Imported by alhdayits served al the time
the motion is made
his court has therefore refused 10
use aiildayiis not served al the same time
rs the motion. The supreme court sus-
famed this court in that position con
tnued Mr. Shores.
lie read snpcmc court case in which
additional aiiidaviis. served after The
time fixed for such service, were not
received
Mr.. Shores took UP the matter Of The
verllcatlon OF the complaint lie con
tended that the complain, IN the case
was the only pleading which might be
considered as an affidavit aud uscd 10
support the plaintiffs application. AMI
that it was defective for the purpose be.
cause il had been verified on informa-
tion and belief and not positively. which
is required in afidayits.
aking the statutes and the rules 10
gcther, there seems no question about
this matter Oral evidence is not ad.
missibc, unless the defendants introduce
it first, concluded Mr. Shores.
Adonted Tuo Naare A,o
lie added that the court rules referred
to were those adopted by Judge Clancy
two years ago, and then Judge Mediation
made the answering argument. Judge
Mediation said the rule referred 10 had
no reference 10 injunction matters, ana
that the plaintiff was not asking for an
injunction upon afiidavits, but upon a
hearing.
lie continued with the statement that
an application for AN Injunction might
be a motion, but that an order to show
cause as a process of the court emina,i,g
from the court and a thing in which the
parties to the proceeding have no hand.
He admitted that a complaint must be
absolutely verified il party seeks to
gain an injunction upon it alone, but
insisted that the plaintiff had asked for
The order on other proof
Mr.. Shores in replying to Judge McIIat-
ton had contendcd that the losing party
was not entitled to oral proof to uphold
his motion for a new trial, and was sus,
taincd in both the trial and supreme
courts.
Mr.. Shores said the afldavits Of Judge
Harney and Mrs, Bracket had first been
asked for, but that they could not be Sc
cured. Then oral proof had been
sought, but the courts held that it was
not admissible in support of motion.
In the opinion of the attorney the matters
were analogous insofar as the rule of oral
proof was concerned.
The court decided the matter by over
ruling the objection, saying
swell, this is an order to show cause,
and this is the time to show the cause.
Well, from that section of the statutes
1t seems very plain on the face Of it that
the party may make proof either by affi-
davits or oral proof.
"Tudpe De Witt was here for the plain