order sustaining a demurrer to his complaint | pany, a corporation, against the Three Forks, and directing the dismissal of his action. Helena & Madison Valley Railroad CompaThere was not any judgment entered, but ny. From an order appointing a receiver, only a minute entry of the order. The order defendant appeals. Order reversed. is not a judgment (Rev. Codes, §§ 6710. 7139; State ex rel. Allen v. Hawkins, 33 Mont. 177, 82 Pac. 952; Lisker v. O'Rourke, 28 Mont. 129, 72 Pac. 416, 755; Butte & B. C. M. Co. v. Montana Ore Pur. Co., 27 Mont. 152, 69 Pac. 714), neither is it one of the enumerated orders from which an appeal can be taken (section 7098, Rev. Codes), and therefore this court is without jurisdiction to consider the appeal.

materially injured; and that there is immediate danger of the same by reason of all the facts herein set forth." Within 20 days after service of summons the appellant filed a demurrer to the complaint, and a motion to strike therefrom all the allegations made in support of the prayer for a receiver, and at the same time moved the court upon [Ed. Note. For other cases, see Corporations, several grounds to vacate the order appointCent. Dig. §§ 2201-2216; Dec. Dig. § 553.*] ing the receiver. The demurrer and motion Appeal from District Court, Gallatin to strike were overruled. Upon the hearing County; Benjamin B. Law, Judge. of the motion to vacate the receivership, the Action by the Prudential Securities Com- court, over appellant's objection, permitted

respondent to file two certain affidavits as in support of the receivership, and later entered an order denying the motion to vacate. The present appeal is from that order.

[1-3] The principal question presented is whether a sufficient showing was made to warrant the receivership. The respondent contends that a sufficient showing was made under the provisions of section 6698, subd. 5, Revised Codes. Those provisions are as follows:

"A receiver may be appointed by the court in which an action is pending, or by the judge thereof: * * * 5. In cases when a corporation has been dissolved, or is insolvent, or in imminent danger of insolvency, or has forfeited its corporate rights."

no suits are alleged to have been brought upon them, although more than a year elapsed between their filing and the commencement of this action-then the respondent is in still better position to protect itself, pending the suit, without a receiver.

[5] The contention is earnestly made, however, that it was the right and duty of re| spondent to seek the receivership as a measure to protect itself and other creditors, because the property of a corporation is a trust fund for the benefit of all the creditors, no one of which is permitted to secure a preference. Upon the face of the complaint it is clearly indicated that respondent acted only for itself; and it is not true that any obligation rested upon it to consider either the interests of appellant or those of other

creditors.

The trust fund doctrine, as invoked by counsel, is not the law of this jurisdiction. Ames & Frost v. Heslet, 19 Mont. 188, 47 Pac. 805, 61 Am. St. Rep. 496.

It is not necessary to determine whether error was committed by the court in receiving and considering the affidavits presented on the hearing, because these affidavits did not and could not avoid the fact that respondent had an adequate remedy at law. This being true, the receivership was unauthorized, and the order appealed from must be reversed. So ordered. Reversed.

This section is to be read, of course, in connection with the recognized principle that receivership is an extraordinary remedy, never to be allowed, except upon a showing that it is necessary. Berryman v. Billings Mut. Heating Co., 44 Mont. 517, 523, 121 Pac. 280; Brown v. Erb-Harper-Rigney Co. et al., 48 Mont. 17, 27, 133 Pac. 691. No such showing is made by mere insolvency (Berryman v. Billings Mut. Heating Co., supra; Forsell v. Pittsburg & Mont. Copper Co., 42 Mont. 412, 113 Pac. 479); nor, by a parity of reasoning, because the conduct of the corporation has been such that its corporate rights are subject to forfeiture. The complaint, it is true, alleges that the appellant has forfeited its rights by failure to complete the requisite portions of its line; but this amounts to no more than the averment of a condition upon which a forfeiture might be had. That a corporation does not STATE ex rel. CULBERTSON FERRY CO. cease to exist, that its corporate rights are not forfeited automatically from the occurrence of a cause of dissolution or forfeiture,

has been declared by this court on several

occasions. Gans v. Switzer, 9 Mont. 408, 24 Pac. 18; Daily v. Marshall, 47 Mont. 377, 133 Pac. 681; Barnes v. Smith, 48 Mont. 309, 137 Pac. 541.

Ap

BRANTLY, C. J., and HOLLOWAY, J.,

concur.

(49 Mont. 595)

v. DISTRICT COURT OF TWELFTH JUDICIAL DIST. IN AND FOR SHERIDAN COUNTY et al. (No. 3544.)

(Supreme Court of Montana. Nov. 18, 1914.) 1. MANDAMUS (50*)-SCOPE OF REMEDY

CLEAR LEGAL DUTY.

[Ed. Note.-For other cases, see Mandamus, Cent. Dig. § 97; Dec. Dig. § 50.*

In view of Rev. Codes, § 7214, providing that mandamus may issue to compel the per[4] Moreover, the rule that a receivership formance of an act which the law specially enis never to be allowed, except upon a show- joins as an official duty, the writ will only compel the performance of a clear legal duty; and ing of necessity, excludes such allowance where relator's notice of intention to move for where the party has, or may have, an at- a new trial was properly stricken, or where, if tachment or an execution. Berryman v. Bill-improperly stricken, its reinstatement would be useless, mandamus will not issue to compel reings Mut. Heating Co., supra, Forsell v. instatement. Pittsburg & Mont. Copper Co., supra. parently this was realized by the pleader, and the effect sought to be avoided by alleging the Bennett and Morris liens; but the property in question is alleged to be worth $40,000, and, assuming the Bennett and Morris liens to be enforceable, there still remains, for the satisfaction of respondent's claim for less than $2,500, a margin of over $10,000; and a receiver could do no more for the protection of respondent, in the face of those liens, than the respondent could do for itself. If, on the other hand, the Bennett and Morris liens are not enforceable as appears to be the case, since

For other definitions, see Words and Phrases,
First and Second Series, Mandamus.]
2. NEW TRIAL (8 7*) - "ISSUE OF FACT" -
STATUTES.

Rev. Codes, § 6793, defines a "new trial" as a re-examination of an issue of fact after trial and decision by a jury or the court; section 6723 declares that an issue of fact arises upon a denial in the answer of a material allegation of the complaint or in the reply of a material allegation in the answer; and sections 6719, 6762, relating to entry of judgment by default and to the waiver of a trial by jury, upon failure of answer or reply in actions of tort, allow the court to order the damages to be assessed by the jury. Held that, while "issue

For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

order sustaining a demurrer to his complaint | pany, a corporation, against the Three Forks, and directing the dismissal of his action. Helena & Madison Valley Railroad CompaThere was not any judgment entered, but ny. From an order appointing a receiver, only a minute entry of the order. The order defendant appeals. Order reversed. is not a judgment (Rev. Codes, §§ 6710. 7139; State ex rel. Allen v. Hawkins, 33 Mont. 177, 82 Pac. 952; Lisker v. O'Rourke, 28 Mont. 129, 72 Pac. 416, 755; Butte & B. C. M. Co. v. Montana Ore Pur. Co., 27 Mont. 152, 69 Pac. 714), neither is it one of the enumerated orders from which an appeal can be taken (section 7098, Rev. Codes), and therefore this court is without jurisdiction to consider the appeal.

proceeding.

of fact" includes every issue of fact, whether | erly stricken, its reinstatement would be usearising upon formal pleadings or upon motion, less, the relator cannot have relief in this yet, as used in such provisions, it refers only to issues of fact raised by formal pleadings, and hence where plaintiff, in an action of tort for damages, was defaulted by failure to reply, and there was judgment for defendant on the verdict, on his counterclaim plaintiff's motion to reinstate his notice of intent to move for a new trial could not be granted, since there was no issue of fact presented by the pleadings.

That the counterclaim was sufficient and required a reply is not denied. This being so, the respondent contends that the ruling complained of was proper, and that the restoration of the paper to the files would be useless, for several reasons, among them this: That a motion for new trial does not lie because the allegations of the counterclaim stood admitted by failure to reply, and there was no issue of fact to be tried or retried. The relator, on the other hand, insists that, as to the amount of respondent's damages, there was an issue to be tried; that at the hearing the relator, as well as the respondent, appeared by counsel; that the relator claimed and was accorded the right to crossexamine the witnesses produced on behalf of Hinz; that witnesses were sworn and testified for the relator; that the jury were instructed by the court and addressed by counsel for both parties; and that proceedings so conducted are a trial, the results of which are subject to review on motion for a new trial.

SANNER, J. Mandamus. The petition avers the following facts: The relator, a [2] The solution of the problem thus preferry company, filed its complaint in the sented depends, not so much upon what was district court of Sheridan county, seeking to done at the hearing, as upon what was rerecover from one H. G. Hinz $500 damages quired to be done. A new trial is the refor the alleged cutting of its ferry cable and examination of an issue of fact (Rev. Codes, to procure a decree enjoining him from inter- § 6793); and unless there was an issue of fering with it in the use and operation of fact to be tried, and which may now be rea public ferry near Culbertson. Hinz an- examined, neither the participation of reswered, joining issue and pleading a counter-lator in the proceedings, nor the unnecessary claim in damages to the amount of $1,000 formality with which they were clothed, can for trespass by the relator in occupying cerbe decisive. What an "issue of fact" is, tain of his lands without his permission for and how it must be raised to be the subject its ferry equipment and approaches. The of a retrial, are thus settled by our Code and relator did not reply, and, after the time by the decisions of this court: for filing a reply had passed, Hinz moved for judgment. The default of relator for failure to reply was entered by the clerk, and thereafter the cause "came on regularly for trial" before the court sitting with a jury, upon the amount of damages sustained by Hinz under the allegations of his counterclaim. A verdict for $900 was rendered, and judgment was entered accordingly. Thereafter the relator served and filed its notice of intention to move for a new trial, which, upon motion of Hinz, was stricken from the files. The peremptory writ of mandate of this court is now sought to compel the district court to reinstate the notice of intention and thereafter to proceed as may be proper.

*

"An issue of fact arises: • (1) Upon a denial, contained in the answer, of a material allegation of the complaint; or upon an allegation, contained in the answer, that the defendant has not sufficient knowledge or information to form a belief, with respect to a material allegation of the complaint. (2) Upon a similar denial or allegation, contained in the reply, with respect to a material allegation of the answer. Rev. Codes, § 6723; Code Civ. Proc. 1895, § 1033. "A new trial is a re-examination of an issue of fact. * The expression 'issue of fact,' used in its broader sense, would include every issue of fact, whether arising upon formal pleadings or upon a motion. As used here, however, it refers only to issues of fact raised by formal pleadings, as defined in section 1033 of Heinze v. District Court, 28 Mont. 227, 72 Pac. the Code of Civil Procedure." State ex rel.

613.

[1] It is elementary law that the writ of "While the provisions of the Codes relative to mandate will not issue to compel the doing of new trials and appeals apply generally to proan idle or useless thing (13 Ency. Pl. & Pr. bate proceedings (Rev. Codes, § 7712), controversies which do not arise upon written plead493; 26 Cyc. 147), but only to compel the ings authorized or required by statute do not performance of a clear legal duty (Rev. fall within them, because a 'new trial' is a reCodes, 7214; State ex rel. Donlan v. Com-examination of an issue of fact in the same missioners, etc., 49 Mont., 143 Pac. 984). If, therefore, the relator's notice of intention was properly stricken, or if, though improp

court after a trial and decision by a jury or court, or by referees. Rev. Codes, § 6793. * As was pointed out in State ex rel. Heinze v. District Court, supra, the expres