Wetzstein v. Boston & Montana Consolidated Copper & Silver Mining Co.

MR. JUSTICE MILBURN delivered the opinion of the Court. This is an appeal from an order denying an injunction pendeoite lite. The injunction was asked for pending an action in the district court to quiet the title in plaintiff to a certain interest in the Comanche mining claim, and for an accounting to him for his interests in the profits of said mining property, and for a receiver. It appears from the complaint, filed December 14, 1899, that on the 22d day of March, 1894, plaintiff commenced a certain other action in the same court against the predecessors in interest of the defendant in the action at bar, claiming title to the same interest in the said mining property, and praying that the court order a conveyance to be made to him for said interest in said property; that the action lást referred to was tried before a jury, which returned special findings adverse to plaintiff; that these findings were adopted by the court, with additions; that on or about January 3, 1899, a decree against the plaintiff was made and entered; that plaintiff’s motion for a new trial was denied and an appeal was talien and is now pending. Plaintiff asked for the injunction to restrain defendant from mining, extracting, carrying away, or converting to its own use any ores from said mining property, in the possession of which it has been since 1896. In the light of the fact, together with others not necessary to state, appearing to the district court, that it "had in the action [87] commenced in 1894, as aforesaid, found and decreed that the plaintiff was not the owner of any interest in said mining claim, the decree not having been reversed or set aside, we cannot see any abuse of discretion in the action of the lower court in refusing to grant the injunction asked for. The temporary injunction heretofore by this Court granted pending this appeal, the application for which is numbered 1,510, is hereby dissolved. The motion of plaintiff filed and submitted February 8, 1901, requiring the defendant to give him a bond to protect him pending this appeal, is, in view of the above opinion, denied. Order appealed from is hereby affirmed. Affirmed-