Hoven v. McPhillips

475 P.2d 559, 156 Mont. 521, 1970 Mont. LEXIS 332

• Court: Montana Supreme Court
• Decided: September 17, 1970
• Docket: No. 11936
• Status: Published

Opinion

ORDER

PER CURIAM:

Original proceeding. On September 9, 1970, this Court issued an order to show cause directed to the Honorable R. D. McPhillips, the judge presiding in the absence of Honorable Bernard Thomas of the twelfth judicial district, to appear and show cause why a certain temporary restraining order of August 27, 1970 and an order of August 31, 1970 modifying that order, should not be set aside.

In oúr order to show cause we observed that the authority of the district court was in doubt; the-authority of the alleged officers of the corporation was in doubt; the restraining orders, without bond, were in doubt; the order to show cause in contempt was in doubt, and other similar matters.

On the return day the doubts expressed above were made to appear prophetic. No proper authority of the alleged corporate authority to file suit was made, no bond was required, and the very jurisdiction of Judge McPhillips to act for Judge Thomas was questioned. Accordingly, the order of Judge McPhillips of August 27, 1970 as modified on August 31, 1970, is set aside and held for naught.

However, since the affairs of the corporate structure and its contractual duties and obligations are in a chaotic condition, the district court is authorized to proceed at once to make a determination of the issues, consistent with the statutes and the need for protection of the assets involved, by the appointment of a receiver or whatever, in the opinion of the court, is deemed appropriate.

Copies of this order shall be mailed by the Clerk of this Court by certified mail to Judge McPhillips, Hon. Vernon Hoven, Mr. Walter Mack, and Messrs. Ettien and Morrison, attorneys at law.