Forrester & MacGinniss v. Boston & Montana Consolidated Copper & Silver Mining Co.

MR. JUSTICE PIGOTT delivered the opinion of the court. This is an original proceeding for leave to prove certain exceptions which the petition states the judge of the Second judicial district court has refused to allow in accordance with the facts. The petitioners are the Boston & Montana Consolidated Copper & Silver Mining Company, John F. For bis, G. H. Hyams, and Frank Klepetko, the answering defendants in Forrester & MacGinniss v. Boston & Montana Consol. C. & S. Mining Co. et al., several phases of which case have been before this court in 21 Mont. 544, 55 Pac. 229; 21 Mont. 565, 55 Pac. 353; 22 Mont. 220, 56 Pac. 219; 22 Mont. 241, 56 Pac. 281; 22 Mont. 376, 56 Pac. 687; 22 Mont. 438, 56 Pac. 865; 22 Mont. 352—430, 56 Pac. 1135, 868. The petition purports to be drafted under the provisions of section 1157 of the Code of Civil Procedure, and of subdivision 11 of Rule IY., now Rule Y, of this court. It appears that the petitioners moved the district court to vacate the order of December 15, 1898, appointing a receiver for the property of the defendant company, and to discharge him; that a hearing was had in obedience to the mandate of this court (State ex rel. [127] Boston & Mont. Consol. C. & S. Mining Co. v. Second Judicial District Courts 22 Mont. 438, 56 Pac. 865); that on April 10, 1899, the court denied the motion, and defendants appealed to this court (Forrester et al. v. Boston & Montana Consol C. & S. Mining Co., 22 Mont. 430, 56 Pac. 1134, 868), where the cause is now pending. It further appears that the defendants served a draft of their bill of exceptions, co which plaintiffs proposed 10 amendments. Upon presentation for settlement, the judge allowed nine of the amendments, besides making an addition of his own, and ordered that the bill, as so amended, be engrossed and settled. Four of the amendments allowed are asserted to be discordant with the proceedings had upon the hearing of the motion, and one is said to be contrary to the facts attending the making of the order appealed from. Defendants therefore contend that the judge refused to allow their exceptions in accordance with the facts, and pray that the facts touching the matters to which the amendments are directed, and the refusal of the judge to allow the bill as presented, may be proved and certified under the provisions of section 1157 and the rules of this court. A referee was appointed ex parte, and without notice to the plaintiffs, and he has reported the testimony taken by him in support of the petition. The petition must be dismissed upon the ground that the amendments allowed are immaterial; hence we do not consider or decide, but expressly reserve, all questions which might arise, were the amendments material, in respect of the power and right of the supreme court, under section 1157 and Rule •V., to alter or remodela bill of exceptions allowed by the trial judge; nor, on the present application, is it necessary either to interpret or construe the section. The avowed purpose of incorporating the amendments was to show that the defendants, and particularly the Boston & Montana Consolidated Copper & Silver Mining Company, were in contempt of the district court during the hearing of the motion, and at the time it was denied; for example: the bill, as presented for settlement, contains a copy of the order appealed from, [128] which merely overruled and denied the motion to vacate the-appointment of the receiver, — in passing, we may say that there was no necessity of including the order in the bill, for it is deemed excepted to, no bill of exception is required, and it may be presented as part of the record proper by a copy certified as correct by the clerk; the amendment proposed and allowed in that regard sets out that “the court refused to-grant the motion to discharge the receiver upon the ground and for the reason that the defendants in the case had refused to comply with the court’s order contained in the order appointing the receiver, and'had resisted and violated the same, and that the said defendants stood charged with contempt of this court, and therefore were not entitled to be heard or to» have said motion granted, and thereupon said court overruled said motion,” to which the judge directed to be added the-following: “The court being of the opinion that on account of the contemptuous conduct of the defendants aforesaid, and their position before the court, they were not entitled to any relief asked, or to a consideration of their motion by the-court, and the court denied the same for that reason; it appearing clearly from the evidence presented on the hearing of' the motion.that defendants had violated the order of the court, appointing the receiver, and were during the course of the-hearing violating the same', and doing everything in their power to avoid a compliance therewith, and were avoiding-service of the process of this court issued in this action. ’ ’ The testimony taken and returned by the referee shows very clearly that no such reasons were announced, either by express words or by implication, at the time the order was-made, and that, if they existed, they were known only to the judge of the court, who omitted to reveal or confide them to-those whose interests were, as he evidently believed, seriously affected thereby. But the reasons so given are not material to any issue or question presented on the appeal, and this court, although it may disregard, has no power, by virtue of: section 1157 or otherwise, to strike out such matter from a. bill. It may be conceded that the trial court might justly129 have refused to entertain the motion to discharge the receiver on the ground that the defendants were then in, or perhaps even charged with, contempt of its order or process, or to decide it until the moving parties had purged themselves of a contempt brought to the court’s knowledge after the beginning of the hearing. In this case, however, the court did not refuse to hear the motion, neither did the court decline to decide. Both a hearing and a determination were had and made, respectively; and in a matter not of mere favor or privilege to a litigant, but involving substantial rights, a court cannot, without committing gross - and palpable error, punish a party charged with contempt by deciding against him the cause or proceeding in which the contempt is alleged to have occurred. If it could, then, for instance, a demurrer interposed to an insufficient complaint may properly be overruled because the demurrant is in, or is charged with, contempt. If it could do so, then the court can rightly direct the jury to find against a party in contempt, although he would, except for the contempt, be entitled to recover. Such practice would be a travesty of justice. It will not be tolerated in a land where the fundamental principles of the common law are the rules of action. Counsel for the plaintiffs suggest, tentatively, that the district court and judge were compelled by our writ of mandate to hear and determine the application to vacate the order appointing the receiver while the defendants were in open defiance of said order, and that the-judge “preferred, rather than to make answer to the alternative writ setting forth as a ground of his refusal to hear the application, the facts showing the defendants to be in contempt, to proceed with the hearing under the writ of mandate, and to deny the application for that reason.” Reference to the opinion in State ex rel. Boston & Montana Consol. C. & S. Mining Co. v. Second Judicial District Court et al., 22 Mont. 438, 56 Pac. 865, shows that the district judge stated the reasons in detail why he had not heard the motion, and declared that in any event he intended to hear the motion on April 3, 1899, with [130] out regard to whether or not this court should ‘issue a peremptory writ. Now, it appears that the answer to the alternative writ was made on April 1, 1899, and that the proceedings against the defendants for contempt were instituted in the district court, and before its judge, on the 13th and 15th days of March, 1899, — some two weeks theretofore. The pretended excuse attempted to be made in behalf of the judge for the omission of the reasons mentioned from his answer and return is not even plausible. Moreover, instead of making the return to the peremptory writ show that he declined to decide the motion to discharge the receiver because the defendants’ contempt had been proved since his answer to the alternative writ, he made a final return on April 10th that he had determined the motion. Had he made it appear to this court that the defendants were in contempt, it is hardly necessary to say that he would not have been commanded to entertain or to pass upon the application while that condition of affairs existed. The conduct of the judge to which we have adverted is unworthy of emulation. No one of the amendments by which the draft of the bill of exceptions is changed is either material or relevant, for the question to be considered upon the appeal will be whether or not the order appointing the receiver should have been vacated, and that officer discharged. The proceedings as for contempt, of which the defendant company has been subsequently adjudged guilty, are wholly foreign to the question. The prayer • of the petition is therefore denied, and the petition dismissed, at the costs of the applicants. Dismissed.