Finlen v. Heinze

ME, CHIEF JUSTICE BEANTLY,

after stating tbe case, delivered tbe opinion of tbe court.

Tbe application presents three questions for determination: (1) Whether this court bas power to grant tbe relief demanded; (2) whether, if it bas, the facts shown justify its interference; and (3) whether tbe plaintiff, by asking tbe trial court to retain jurisdiction of the case for tbe purpose of protecting tbe property pending tbe appeal, bas foreclosed bis application to this court for that purpose.

1. For answer to tbe first question reference must be bad to tbe- sections of tbe constitution containing’ tbe grant of appellate power to this court, and tbe provisions of tbe Code of Civil Procedure enacted in pursuance of them. This grant is contained in Sections 2 and 3 of Article NTH, which declare:

“Sec. 2. Tbe supreme court, except as otherwise provided in this constitution, shall have appellate jurisdiction only, which shall be coextensive with tbe state, and shall have a general supervisory control over all inferior courts, under such regulations and limitations as may be prescribed by law.

“Sec. 3. Tbe appellate jurisdiction of tbe supreme court shall extend to all cases at law and in equity, subject, however,, to such limitations and regulations as may be prescribed by law. Said court shall have power in its discretion to issue and to hear and determine writs of habeas corpus, mandamus, quo-ivamnto., certiorari, prohibition and injunction, and such other original and remedial writs as may be necessary or proper to tbe complete exercise of its appellate jurisdiction. * *

Tbe provisions of tbe Code of Civil Procedure referred to, omitting parts not pertinent to this case, are tbe following:

“Sec. 21. Tbe supreme court may affirm, reverse or modify any judgment or order appealed from, and may direct tbe proper judgment or order to be entered, or direct a newl trial or further proceedings to be bad. * * * Its judgment in appealed cases must be remitted to tbe court from! which tbe appeal was taken.”

“Sec. 23. Tbe supreme court may continue in force an in *113 junction order made by a dictrict court, or judge, or grant an injunction order and writ pending an appeal to the supreme court from an order of the district court, or judge, refusing or dissolving an injunction, upon such terms and under such rules as the supreme court may establish. No action to obtain an injunction must be commenced in the supreme court, except in cases where the state is a party, or in which the public is interested, or the rights of the public are involved, but the proper district court has jurisdiction of all injunctions, and the commencement of all actions therefor, except as in this section provided.”

Reference must be had also to Sections 1722 and 1723, as amended by the Act. of the legislative assembly of 1899 (page 140). These enumerate the judgments and orders from which appeals lie, and provide when they may be taken. Subdivision 2 of the former provides that this court, or any one of its justices, may stay any of the orders enumerated therein.

The defendants argue that the constitutional grant of appellate power also expressly authorizes the legislature to impose limitations upon it, and to provide regulations under which it may be exercised, and that, as these statutory limitations and regulations have been enacted by the legislature, this court must look to them exclusively for authority to act upon this and all similar applications through which relief is sought pending an appeal. In other words> Section 21, supra, only authorizes the court upon final hearing to affirm, reverse or modify a judgment or order of the trial court. Section 23 permits this court to issue an injunction when one has been refused by the district-court, or to continue one in force which has been dissolved. Section 1722 authorizes the grant of a stay of any of the interlocutory orders enumerated when such relief is appropriate. It therefore follows, from an application of the principle “ex-pressio unius est exclvsio alterius ” that this court can grant no other relief in aid of its appellate jurisdiction than that permitted by these specific statutory provisions. We cannot assent to the proposition that the legislature can thus limit and control the power vested in this court by the constitution, or that it has attempted to do so by the enactment of any of these provisions. *114 It is manifest from the language of tliis instrument that it was tbo intention of its framers that the power-of review granted' should extend to all cases. The words “the appellate jurisdiction of the supreme court extends to all cases at law and in equity” are of universal application, and must be construed to mean that the parties litigant have the right of appeal to this court for final review of the action of the trial court, whatever it is, and that this court has the power to grant such relief as this review implies. It is a grant of power to this court, and at the same time a guaranty of a right to the individual citizen which is independent of legislative control, except in a qualified sense. In considering the character and extent of the appellate and supervisory powers granted by the sections quoted, and the limitations placed upon them by the expression “under such regulations and limitations as may be prescribed by law,” this court, in State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 Pac. 395, said: “While the legislature cannot decrease the powers granted by the constitution, this clause evidently intended that that body should provide the mode of procedure to be employed by which, and the limitations as to time within which, both these powers should be invoked; for, though the power of the court is plenary, it cannot be exercised until a mode for its exercise has been provided. Tet by this statement We do not concede that the legislature, by failing to act, can render these powers of no avail. It is a question worth consideration Avhether, in the absence of action on its part, this court has the power to establish rules for the exercise of its appellate and supervisory powers. Some procedure must be provided by which the individual litigant may avail himself of the relief which the court has power to grant. It is in this sense that an appeal is the creature of the statute, and that the right to it does not exist unless it is provided for.” By this language we meant to intiro|ate an opinion that the power to consider appeals to this court from final judgments in all cases is a constitutional power, and that, in the absence of suitable action by the legislature providing the necessary procedure, the *115 power is not beld in abeyance, but may nevertheless be exercised under suitable rules provided by this court.

The clause, “subject to such limitations and regulations as may be prescribed by law,” contained in Section 3, — a substantial equivalent of the limitation clause in Section 2, — must be read in connection with the preceding clause, which embodies the grant, and such imfport be given to it as will permit the court to retain the power vested in it, as a distinct department of the government, with its own peculiar and appropriate functions, and at the same time preserve the right guarantied to the litigant. The word “limitations,” in its ordinary legal and popular sense, refers to the time within which an action may be brought, or some act done, to preserve a right. In this sense it implies power in the legislature to enact reasonable provisions-fixing a limit to the time within which an appeal from a final judgment may be prosecuted. This the legislature has done in the enactment of Section 1123, supra, after recognizing' the right of appeal in Subdivision 1 of Section 1122. But we think that, as here used, the term has a somewhat broader meaning. It refers also to the powier of the legislature to provide for appeals from interlocutory or intermediate orders and decisions, and, in its discretion, to direct that such appeals shall be taken and entertained prior to final judgment, and- that, unless they are so taken, the court may not review such orders upon appeal from the final judgment. This has been done by the provisions contained’in Subdivision 2 of Section 1722, Subdivision 3 of Section 1723, and Section 1742; for the first two-sections enumerate the interlocutory orders from which appeals lie, dnd fix the time in which they may be taken] while the latter declares that upon appeal from a final judgment the court “may review " * * any intermediate order or decision excepted to, -which involves the merits, or necessarily affects the judgment,” except one from which an appeal might have been taken. Necessarily, the grant of the power to the legislature to provide for appeals from interlocutory orders implies the power to withhold the right to them. These provisions, taken together, are limitations not only as to the time within *116 wbicb, after tbe making of tbe particular judgment or order, tbe appeal may be prosecuted, but also> in case of intermediate and interlocutory orders and decisions', as to tbe time in tbe course of tbe litigation at wbicb tbe proceedings for review must be instituted. Tbus indirectly, and by tbe substitution of another time at which, and a different mode by which, tbe review may be bad, they further limit tbe extent of relief wbicb tbe court may grant upon appeal from a final judgment. But, though this is true, tbe power of limitation by tbe legislature applies primarily to tbe time within wbicb tbe power of this court may be invoked by tbe litigant. It is only in this sense that tbe legislature may impose limitations, and these limitations, whatever they may be, may not restrict tbe right of tbe litigant to have every order in tbe case affecting tbe merits reviewed either upon appeal from tbe final judgment or during the progress of tbe case, and within a reasonable time after the particular order is made; nor may they restrict tbe power of tbe court to grant s-ucb review.

So tbe word “regulations” refers to tbe establishment- of tbe procedure by means of wbicb tbe power may be set in motion, and in obedience to wbicb it may be exercised. It is only in this qualified sense that an appeal from a final judgment is a creature of tbe statute. Appeals from interlocutory or int-eram-diate orders, as a special and independent method of obtaining relief, are not based upon a constitutional- guaranty. They are, therefore, subject to just such limitations, both as to tbe particular class or classes of orders from wbicb they lie, and as to-tbe time in wbicb they may be taken, as well as to tbe extent of tbe relief wbicb may be granted, as tbe legislature may impose. Tbe legislature may also regulate tbe procedure to be observed, and tbe rules provided by it must be tbe exclusive guide. In this sense these appeals are exclusively creatures of tbe statute. We do not mean to say that the legislature may, by unreasonable limitations and regulations, or by nonaction, destroy or render ineffective tbe power of this court to- review interlocutory orders; for, notwithstanding independent appeals from them may not be provided for, errors in miaking them may be *117 reviewed upon appeal from the final judgment in the case, or by certiorari, according as one or the other method is appropriate, provided always that review upon appeal extends only to such orders and decisions as are excepted to by the party aggrieved and such exception is properly preserved.

None of the provisions of the statute^ supra, nor any others, undertake to limit the auxiliary powers of this court upon appeal from a final judgment. All of the sections cited, except Section 21, in so far as they attempt to fix limitations beyond those already noticed as to the matter of time and the mode of procedure, refer exclusively to appeals from interlocutory orders and orders made after final judgment, and the relief which may be granted in aid of them. Section 21 does not undertake to fix any limit upon them, but merely declares the extent of relief which can be granted upon final hearing under the sections of the constitution quoted as construed by this court in the light of the circumstances existing at the date of its adoption. (State ex rel. Whiteside v. First Judicial District Court, supra.) The extent of the relief granted upon final review, in so far as this provision may be considered a legislative limitation upon it, would be just the same had it never been enacted. ' It follows, therefore, that, except to provide independent appeals from interlocutory orders, and to deny any other mode of review of them, the legislature has not limited in any way the extent of the power of this court upon appeals from final judgments. Nor do we think such limitations would be valid, or effective for any purpose, should any such be enacted.

We do not deem anything said herein to be in conflict with the views expressed in the two cases recently decided by this court under the title Maloney et al. v. King et al., Mont. 487, 492, 68 Pac. 1012, 1014. The first of these cases involved the question whether this court, under the provisions of Article VIII, See. 3 of the Constitution, and of Sections 1722 and 1723 of the Code of Civil Procedure, supra, has the power to suspend the operation of an interlocutory injunction pending an appeal from an order granting it. It ivas held, among other things, that it is not necessary to the complete exercise of appel *118 late jurisdiction tbat tbe order be modified, vacated oar rendered dormant while tbe appeal is pending. In tbe second case it was held, among other things, that upon an appeal from a final judgment directing a perpetual injunction to issue, this court is not authorized by Section 23, or by Sections 1122 and 1723, supra, or any other provision of law, to1 stay the operation of the injunction pending the appeal, since these statutes apply to interlocutory injunctions only, and have no reference to suspending or staying the operation of a final decree. It was held, also', that no power was conferred by the constitution to suspend the order or judgment pending tire appeal. In neither of these cases was it sought to have the subject of the controversy protected and preserved until the appeal could be disposed of. In the case of Bordeaux v. Bordeaux, 26 Mont. 533, 69 Pac. 103, this court was asked to grant the appellant temporary alimony and suit money pending her appeal from a judgment of divorce. The application was denied on the ground that it sought to invoke the exercise of original jurisdiction in a divorce case, and that under the constitution this court was not vested with such jurisdiction. The relief sought in the case at bar is not a suspension of the judgment of the district court, nor the exercise of any original power. It is sought to* preserve the property pending the appeal, leaving the judgment in force until its integrity can be determined, and the rights of the respective parties finally adjudicated.

Appellate jurisdiction also implies all the power1 and instru-mentalities necessary to malee effective the ultimate relief sought. This follows from the grant itself without other express provision, for “it is an established doctrine that one of the essential attributes of appellate jurisdiction, and one of the inherent powers of an appellate court, is the right tO' make use of all the writs known to the common law, and, if necessary, to invent new writs or proceedings in order to suitably exercise the jurisdiction conferred.” (Wheeler v. Northern Colorado Irrigation Co., 9 Colo. 248, 11 Pac. 103.) This language was quoted with approval in State ex rel. Whiteside v. First Judicial District Court, supra, and we deemed it an expression of *119 the correct' rule. If, pending the appeal,' the subject of the litigation could not be preserved, and the appellant could be left in such a position that, though he should prevail in his appeal, and be finally successful in the litigation, he could not enjoy the fruits of his victory, the right of appeal would have no substantial value, but would be one in name only. This court therefore must, of necessity, and in the nature of things, possess inherently whatever power may be necessary to preservo the subject of the litigation and the status of the parties, pending the appeal. (Pennsylvania R. Co. v. National Docks & N. J. J. C. Ry. Co., 54 N. J. Eq. 647, 35 Atl. 433.) The constitutional convention, recognizing; this necessity, after giving to the court expressly the power in its discretion to issue and to hear and - determine the six writs enumerated, also gave -the power to issue, hear and determine all other original and remedial writs necessary to the complete exercise of its jurisdiction, so that no- doubt or embarrassment might exist as to. the means at its command for 1his purpose. (State ex rel. Whiteside v. First Judicial District Court, supra.) • The original writs may, therefore, be used for any purpose for which they are appropriate; and the others, whatever they may be, may bo used in the same way in aid of the appellate jurisdiction. The writ of injunction has been assigned by this court to the performance of prerogative functions as the equity arm of the court’s original jurisdiction, and as correlative with the wt’it of mandamus, to restrain excesses, just as the latter is used to supply defects and to compel action. (State ex rel. Clarke v. Moran, 24 Mont. 433, 63 Pac. 390.) What is said of it, however, applies to it as a jurisdictional writ, the use of which is not subject to restriction or control by the legislature, but is lodged in the discretion of this court, to be used for whatever purpose it may be appropriate, in the protection of the sovereignty of the state, its franchises or prerogatives, or the liberties of the people. The writ of injunction, used as it ordinarily is, as a judicial writ, in aid of jurisdiction, and not as a prerogative writ, is one of the writs properly classed with “other original and re *120 medial writs/’ and is every way suitable to be used in tire exercise of tbe auxiliary power now invoked.

2. Having reached the conclusion that this court has power to grant the relief demanded, the next inquiry is, do the facts presented upon the hearing justify interference? Touching the affidavits tending to show wanton destruction of the workings in the property by defendants, we think them so overwhelmingly rebutted by ihe' counter affidavits that they are not worth consideration. It is admitted, however, that tlie defendants have extensive workings in the claim, and that they are pushing forward their operations with a large force of men; that they are removing from it and converting, to their own use about 400 tons of ore per day, and that this is of great value. Under the view we take of the attempt by the district court to retain jurisdiction pending the appeal, the plaintiff has no security against loss, in case he should finally prevail in the. litigation, other than the pecuniary responsibility of the defendants. Even if they are and remain solvent, he has no means of ascertaining with certainty from day to day the value and amount of the ores taken out and converted by them. Whatever redress he might obtain would, therefore, depend upon the testimony of witnesses, and the integrity of the accounts kept exclusively by defendants. It will be at least two years before the appeal can be heard by this court, if it is taken up in its proper order. By that time the mine will be in a great measure exhausted. The sole value of the estate will thus be greatly diminished. These facts present a case which appeal so strongly to our discretion that wie think a refusal of the relief demanded would be denial of justice. T'o grant, it would be simply to preserve the property, and allow it to stand as it is, until it is finally determined who is the lawful owner of it. To deny it would be to permit the estate to be destroyed, and drive the plaintiff, if finally successful, to pursue remedies for redress wholly different from that of which he seeks to avail himself in the present litigation.

These observations are founded exclusively upon the showing now made to this court. We have not looked into the merits of the case, nor are we to be understood as having prejudged them *121 in the slightest degree. The ultimate fact that the property involved would certainly be destroyed pending an appeal to this court in a controversy involving the title, so that the complaining party would practically be defeated, though he should finally prevail, is a sufficient ground for relief, whatever the merits of the controversy may be, it appearing from, the assignments of error that the questions involved are important and doubtful, and that the appeal is prosecuted in good faith.

3. Much contention is made by the defendants in support of the view that, inasmuch as the decree shows upon its face that the trial court, at plaintiff’s instance, retained jurisdiction of the cause pending the appeal, for the purpose of protecting the subject of the litigation, the plaintiff may not be heard in this court upon this application. On the other hand, plaintiff contends that the recital in the decree is false, that it is not founded upon any suggestion made by him to the trial court, and that it was inserted by the trial court, without authority or facts to support it, by way of an amendment to the original decree^ more than six.months after the latter was regularly entered. We shall not now consider what power the district court has to amend its final judgment or decree more than six months after it has been, regularly entered, or what evidence is necessary to support such amendment. In our oiunion, the particular amendment in question was wholly unauthorized, no matter at whose instance it was made, or what evidence there was tending to show that the matter- contained in the amendment was in fact a part of the decree as rendered in the first instance. When that court rendered its final judgment at the conclusion of the case settling the rights of the parties, its jurisdiction over the subject-matter and the parties ceased, except for the purpose of entertaining a motion for a new trial, or such other proceedings as might properly and lawfully be had looking to a revision or correction of its action, or to enforce the decree as rendered. It had no authority, inherently or by statute, or by any rule of this court, to retain jurisdiction for any purpose pending the appeal. Upon appeal from a final judgment, after the motion for a new trial has been disposed of, *122 jurisdiction over the subject-matter involved and the parties to grant an injunction or other appropriate relief pending the appeal is vested in this court. To preserve and protect the property so that at the end of the controversy in this court it may be in the same situation it was at the time this court obtained jurisdiction over it, is solely and exclusively the office and duty of this court. It is a necessary incident to its appellate power, whether expressly conferred by the constitution or not, unless withheld by express provision of that instrument. Under Section 3, cited supra,, the power is expressly confided to our discretion to issue, hear and determine any writ which may be deemed necessary to the complete exercise of this power. To protect and preserve the rights of the parties is a power absolutely necessary in-aid of this jurisdiction. It being lodged in our discretion, without limitation or restriction, the district court has no power to take it away, and is therefore without authority to act in the premises in any way whatever. The fact that it has undertaken to do so at the instance of plaintiff— and for present purposes we assume it to be a fact — does not alter the situation. A judgment or order rendered without jurisdiction of the subject-matter is wholly unauthorized and void, and does not estop- any person from questioning its validity whenever it suits his purpose to do so, whether such person be a party to it or not.

It is therefore ordered that an injunction issue requiring the defendants to refrain from mining or removing any ores from the Minnie Ilealy claim pending the appeal herein, or until the further order of this court; provided that before the same shall issue the plaintiff shall file with the clerk of this court an undertaking in the sum of $300,000, with at least two good and sufficient sureties for the full amount of the penalty thereof, the same to be conditioned as is provided by law: in such cases, the sureties to- be approved by the clerk of this court; and provided, further, that the defendants may do whatever work may be necessary to preserve the property during the pendency of the appeal.

Writ granted.

(Submitted July 28, 1902. Decided August 4, 1902.)