Torts · MBE-tested
MONTANA ORE PURCHASING CO. et al. v. BUTTE & BOSTON CONSOLIDATED MIN. CO.
126 F. 168·United States Court of Appeals for the Ninth Circuit·1903
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Opinion
MONTANA ORE PURCHASING CO. et al. v. BUTTE & BOSTON CONSOLIDATED MIN. CO.
(Circuit Court of Appeals, Ninth Circuit.
October 27, 1903.)
1. Appeal — Appealable Orders — Order for Inspection and Survey of Property.
An order made by a court of equity pending a suit to enjoin trespasses on mining property, actual and threatened, for an inspection and survey of the locus in quo, is not a final judgment, order, or decree, and is not appealable; and a supersedeas of such order will not be granted,
1f 1. PiDality of judgments and decrees for purpose of review, see notes to Central Trust Co. v. Madden, 17 C. C. A. 238; Prescott & A. C. Ry. Co. v. Atchison, T. & S. F. R. Co., 28 C. C. A. 482.
On Petition for a Writ of Supersedeas Pending Appeal.
The petition of the appellants set forth the commencement of the two actions in the court below by the appellee against the appellants, the first in trespass, to recover damages for the extraction of certain ores and minerals from the locus in quo, the second in equity, to restrain further trespasses; that issues were joined in both cases; that upon the petition of appellee an order of inspection and survey of the premises was' made by the court; that an appeal was taken and perfected from said order by the appellants; that the court below had declined to stay said order; and that the execution of the same would be injurious to the appellants in many respects. The assignment of errors annexed to the appeal set forth eight grounds upon which the order was claimed to be erroneous.
James M. Denny and John J. McHatton, for appellants.
For bis & Evans, Crittenden Thornton, and J. F. Riley, for appellee.
Before GILBERT and ROSS, Circuit Judges, and HAWLEY, District Judge.
[MAJORITY — PER CURIAM.]
PER CURIAM.
The order appealed from is not final in any sense. It does not deprive the petitioners of the possession of their property in any degree. Montana Company v. St. Louis M. & M. Co., 152 U. S. 160, 14 Sup. Ct. 506, 38 L. Ed. 398. The order is not appealable. The motion for a writ of supersedeas is therefore"denied.