Clark v. Pigeon Roost Mining Co.

— Stephens J. By the Court. delivering the opinion. [1.] The defendants in this case, while admitting that the papers in their possession belonged to the Pigeon Roost Mining Company, denied in their sworn answer, that said corporation had any existing organization entitled to represent it, and denied positively that Wood had any such authority, and asserted their interest in the papers as heirs at law of Michael N. Clark, who died a large stockholder in said' company. After this answer came in, Wood filed his affidavit by way [32] of amendment to his original bill, stating that he had cured the defect in his right to sue by getting up the requisite organization after the answer filed. Whereupon, the Chancellor, at chambers, and without notice to the defendants, passed an order for the delivery of all these papers to Cowl, who appeared from Wood’s affidavit, and from that only, to be treasurer under the new organization. That is to say, Wood, by force of his own affidavit alone, got possession of valuable papers from persons who, at the last time when they had a hearing, were protesting and swearing that they had a deep interest in the papers, and that Wood nor anybody else was entitled to the possession of them. To state this case is to decide it. Even a possessory warrant provides for a hearing, and for security for the property, but here a question of contested right of possession was settled by changing the possession on the affidavit of one party, and without notice to the other. Well might the bill have been dismissed after that — it had settled the whole business. It had accomplished what we think could have been done legally only on a regular trial before a jury. We think the defendants had a right to have that order set aside as having been improvidently and illegally passed, and for that purpose they had a right to reinstate the case after it had been dismissed without their knowledge. They were entitled to both the orders moved by them. [2.] There was a motion in this case to dismiss the writ of error for want of service. It was served on the counsel who represented the defendant in error in procuring the very orders and refusals of orders, which are brought up for review. But it was said they had ceased to be counsel when they were served. The reply is, that under the statute prescribing service on attorneys, for the purpose of receiving service, they could’nt cease. We think the service was good. Judgment reversed. Judge Benning being related to one of the parties, did not preside in this case.