Sexton v. Adams , 157 Mont. 343 ( 1971 )

ORDER

PER CURIAM:

Motion to Dismiss Appeal has been filed herein by counsel for Respondents; Appellants would not oppose the motion of certain findings of fact and conclusions of law made by the district court upon its hearing on an order to show cause would not be binding upon appellants upon a trial on the merits.

The order to show cause issued in the district court was for the purpose of determining whether a temporary restraining order should be issued pending the outcome of the litigation, and it served its purpose in that respect since an order was issued restraining appellants, during the pendency of the lawsuit, from interfering with respondents’ use of the land and also restraining appellants from preventing respondents from taking full possession of the property and all improvements; while an appeal was taken by appellants they later vacated the premises and complied with the court’s order. Since the only issue before the court at the show cause hearing was the necessity of a restraining order any findings or conclusions of the court on that hearing would deal only with that matter and would become moot when the restraining order was complied with.

We therefore hold that the findings of fact and conclusions of law entered by the district court on the show cause hearing are not binding in a trial upon the merits of the lawsuit; and with that understanding the Motion to Dismiss this appeal is granted; and the cause is remanded to the district court so that it may proceed with a trial upon the merits.