Forrester v. Boston & Montana Consolidated Copper & Silver Mining Co. , 29 Mont. 397 ( 1904 )

ON MotioN eor Rehearing-.

(Decided April 12, 1904.)

Mr. Justice Holloway :

In support of their motion for a rehearing, appellants direct our attention to an inaccuracy in out statement of their contention. The mistake occurs in paragraph 3 of the opinion heretofore rendered wherein we say that appellants contend that the allowance for attorneys’ fee was premaurely made, for the reason that the judgment in which it is included is not a final judgment, while appellants’ contention actually was that such judgment was not the final judg-ment in the case, or, in other words, that the judgment entered did not finally dispose of the suit, for the reason that the accounting had not been had. It is, however, fairly deducible from the pleadings that the accounting was only an incident to the main purpose to be accomplished by the suit, namely, to prevent tbe consummation of tbe transfer of tbe property of tbe Montana Company to tbe New Turk Company, and to' tbat extent tbe action was successful, and tbe plaintiffs entitled to tbeir attorney fee. Tbe decree disposed of tbe issues involved, and left nothing but tbe actual accounting to be taken, and we are of tbe opinion tbat tbis of itself is not sufficient to necessitate a delay until it is done before tbe plaintiffs may recover tbe attorney fee due them for prosecuting to a successful issue tbe principal action, in wbicb tbe accounting was but an incident.

Tbe motion for a rebearing is denied.

Denied.

Me. Ghiee Justice BbaNtly concurs. Me. Justice Mil-bueN, not having participated in tbe bearing of this appeal in ,the first instance, owing to illness, takes no part in tbis decision.