Burgess v. Lasby

Opinion filed December 21, 1932. After the decision of this court in the case of Burgess v.Lasby, 91 Mont. 482, 9 P.2d 164, Marie and W.D. Lasby filed in the district court an amended and supplemental motion to vacate the order appointing the receiver. After hearing in the district court, the Honorable O.F. Goddard presiding, the motion was granted on August 24, 1932, and the order, in addition to vacating the order appointing the receiver, directed the clerk of the court to whom the receiver had theretofore, under order of the court, paid the money accumulated by him, amounting to $8,397.60, to pay to the receiver the sum of $800 for his services, and to "pay over to the defendants or their counsel the remainder of such sum of money so turned over to him by the receiver."

Plaintiff's counsel, after being advised of the court order, promptly took an appeal to this court, and proceeded with the utmost diligence to procure a stay order from Judge Goddard and to procure and file a supersedeas bond. A stay order was obtained, but before it was filed and before the supersedeas bond was filed, defendants obtained an order from the clerk of the district court of Broadwater county upon the county treasurer for the payment of the money, and the defendants eventually secured it. Plaintiff thereupon moved this court for an order impounding the funds secured by defendants, supported by an affidavit of Mr. Toomey.

Defendants and their counsel appeared by motion to strike and after argument the cause was submitted for decision. Nothing was said respecting any desire of defendants or their counsel to file affidavits in opposition to Mr. Toomey's affidavit. Taking the allegations of Mr. Toomey's affidavit as confessed by the motion to strike, this court, on December 19, 1932, delivered an opinion and thereupon ordered the issuance of an injunction. The injunction order, as amended, reads as follows: "An injunction will issue out of this court directed to the defendants, their counsel, Joe Lasby, and all others acting in aid of them, or any or all of them, commanding them, and each and all of them, to hold, subject to the further order of this court, the sum of $7,597.60, the proceeds of the order for the payment of money issued by the clerk of the district court of Broadwater county to the treasurer of Broadwater county, Montana, or such part of said sum of money as they or either of them have had or now have, in his or their possession, to the end that the said sum of money and the whole thereof shall be accounted for and disposed of as this court shall hereafter direct."

Counsel for defendants now ask leave to file affidavits in opposition to Mr. Toomey's and pray the court to have a further hearing, but have stipulated in open court that the injunction issued on December 20, 1932, shall remain in full force until final hearing.

Defendants' motion to strike plaintiff's motion to impound the funds is hereby overruled.

Defendants are given ten days from date hereof in which to file counter-affidavits in opposition to the affidavit of plaintiff in support of his motion to impound the funds, and within ten days thereafter plaintiff may file affidavits in reply thereto. The restraining order heretofore issued herein shall remain in full force and effect until the further order of this court. It is further ordered that this opinion be substituted in lieu of the opinion rendered December 19, which, in view of the changed conditions, is withdrawn. Further consideration of this matter is postponed until the hearing of the appeal from Judge Goddard's order of August 24, 1932, when further argument may be heard hereon.

MR. CHIEF JUSTICE CALLAWAY, MR. JUSTICE ANGSTMAN, HONORABLE JEREMIAH J. LYNCH, District Judge, and HONORABLE JOHN HURLY, District Judge, sitting, respectively, for ASSOCIATE JUSTICES GALEN and FORD, disqualified, concur.

MR. JUSTICE MATTHEWS, disqualified, takes no part in the foregoing decision.