A motion for a new trial was made and overruled. Plaintiff then moved an arrest of judgment in these words: "And now come the plaintiffs, by their attorney, and move the court to arrest the judgment in said cause upon the finding in favor of said defendants, for the value of the alleged improvements upon the premises in question, because the said second plea is unauthorized by law, and no judgment in favor of said defendants in said plea can be lawfully entered. And for other errors apparent upon the record in said cause." This motion was also overruled. Then follows a judgment in favor of the plaintiff for possession of the premises in suit, and $500 for the defendant on account of permanent improvements. The plaintiffs under this judgment were required to pay the $500 adjudged to defendants before the writ of possession should issue. An appeal was prayed and granted. An appeal-bond was filed in the sum of $1,000; and that portion of the judgment in favor of defendants was superseded, and execution stayed. The writ of possession was, however, thereupon ordered to issue forthwith.

The following errors are assigned: (1) The court erred in rendering a judgment upon the verdict or findings by the court which did not show the value of the land in controversy, in its natural state, without improvements. (2) The court erred in refusing and overruling plaintiffs' motion for a new trial. (3) Other errors and erroneous rulings appear on the face of the record.

The question presented by the first assignment of error was not made in the court below. There was nothing in the pleadings to call for an inquiry into the value of the land, in its natural state, without improvements. The plaintiff in error did not, by his motion for a new trial, or otherwise, present the question for the determination of the court below, either in its findings, or in considering the errors complained of in the motion for a new trial. It is well settled, both in this territory and elsewhere, that the appellate court will not consider alleged errors to which the attention of the court below was not called. The party alleging errors "must call the attention of the trial court by seasonable objections to the proceeding or error complained of, and, upon an adverse decision, except to the action of the court at the time." Williams v. Thomas, 9 Pac. Rep. 356; Comp. Laws, § 2188.

The supreme court of the United States, in the case of Wood v. Weimar, 104 U. S. 786, said: “The rule is universal that nothing which occurred in the progress of the trial can be assigned for error here, unless it was brought to the attention of the court below, and passed upon directly or indirectly." The court below did not, directly or indirectly, pass upon the question of the value of the land without the improvements. The plaintiff in error did not complain of or object to the finding of the court on that account. If our statute is to be construed as a somewhat similar one in Virginia has been, it would devolve the duty upon the plaintiff to present an issue upon which proof of the value of the land, without the improvements, could be ascertained. The statute, it is true, is not explicit. It does not in terms make it the duty of the plaintiff to raise the issue as in Virginia; still, as the provision is obviously for the benefit of the plaintiff, to enable him to elect whether he will accept the value of the land without the improvements, rather than to pay for the improvements, the duty is upon him to have such issue raised and decided. He did not do so. Goodwyn v. Myers, 16 Grat. 336.

We find no exceptions in the record taken to the action of the court below in overruling the motion for a new trial. There was no bill of exceptions. A motion for a new trial in the federal courts is a motion addressed to the descretion of the court, and the decision of the court, in granting or refusing it, alone is not the proper subject of a bill of exceptions. Henderson v. Moore, 5 Cranch, 11; McLanahan v. Universal Ins. Co., 1 Pet. 183; U. S. v. Buford, 3 Pet. 32; Barr v. Gratz, 4 Wheat. 213; Brown v. Clarke, 4 How. 4.

The universal rule of practice is that matters resting entirely in discretion

are not re-examinable in the court of errors.

Pomeroy v. Bank of Indiana, 1 Wall. 592; Rosenthal v. Chisum, 1 N. M. 633; Springer v. U. S., 102 U. S. 586.

Finding no error in the record, the judgment of the court below is affirmed, with costs.

I concur: BRINKER, J.

LONG, C. J. I concur in the conclusion reached. There is no evidence in the record, and therefore nothing to show the error complained of and pointed out in the appellants' brief. I do not think it necessary to construe the statute referred to in the close of the opinion, and do not express any opinion as to the practice thereon.

(5 Utah, 89)

BROOKS v. WARREN and others.

(Supreme Court of Utah. January 17, 1887.

PROHIBITION, WRIT OF-WHEN GRANTED.

A writ of prohibition will not be granted when the thing sought to be stopped is already done.

Application for writ of prohibition.

Sheeks & Rawlins, for applicant. J. N. Kimball and A. R. Heywood, for defendants.

BOREMAN, J. This is an original proceeding in this court. It is an application for a writ of prohibition. The plaintiff had instituted an action against the defendant, Warren, in a justice's court, for forcible entry, and the justice gave judgment for the plaintiff for restitution of the property, and the plaintiff was put in possession thereof.

The defendant, Warren, appealed the case to the district court, and, on trial in the district court, judgment was rendered for said defendant, Warren, and he was restored to the possession, the court refusing to stay proceedings, or to fix the amount of a stay-bond. The plaintiff thereupon applied for the writ of prohibition against said Warren and his attorneys, and the United States marshal. An alternative writ was issued, returnable to this term of this court; but it was not served until said Warren had been restored to the possession of the property. In the petition for the writ, it was stated that the injury sought to be prevented by its issuance was the placing of said Warren in possession, and this was all that was prayed to be prohibited.

The office of the writ of prohibition is to "arrest proceedings." It commands the person to whom it is addressed not to do some act which the petitioner says he is about to do. It is not a command to do some act, but a command not to do it. If the thing sought to be stopped is already done, there is no office for the writ. The supreme court of the United States says: "If the thing be already done, it is manifest the writ of prohibition cannot undo it; for that would require an affirmative act, and the only effect of a writ of prohibition is to suspend all action, and to prevent any further proceedings in the prohibited direction." U. S. v. Hoffman, 4 Wall. 158. We see nothing that this court can do, in the present proceedings, towards replacing plaintiff in the position occupied by him at the time the judgment was rendered. The matter of costs in the district court, to which our attention has been called, is not in question, as that is not an injury sought to be prevented, and the writ is not prayed to arrest the collection of the costs; and, besides, the subject of costs is covered by the appeal-bond of $300, which was filed.

The application for the writ of prohibition is therefore denied. Judgment for costs goes in favor of the defendants.

ZANE, C. J., and HENDERSON, J., concurring.

(5 Utah, 182)

BULLION BECK & CHAMPION MIN. Co. v. EUREKA HILL MIN. Co. and others. (Supreme Court of Utah. January 18, 1887.)

1. INJUNCTION-SETTING ASIDE ORDER-AFTER TERM.

An injunction granted in favor of an appellant pending the appeal may be set aside, even after the term at which it was granted, if the court had not jurisdiction to grant it.

2. SAME-UPON APPEAL TO SUPREME COURT OF UNITED STATES-TERRITORIAL Courts. A territorial court. writs of error and appeals from which to the supreme court of the United States are allowed and taken in the same manner and under the same regulations as from the circuit courts of the United States," can grant an injunction in favor of plaintiff, pending an appeal taken by him from such court to the supreme court of the United States.

Motion to dissolve injunction.

W. II. Dickson and M. Kirkpatrick, for the motion. Arthur Brown and J. G. Sutherland, contra.

ZANE, C. J. It appears from this record that the appellant was the owner of mining claim lot No. 76, and that lot No. 39, owned by respondent, was immediately east thereof; that more than 100 feet beneath the surface of the first-mentioned lot there was a valuable mineral vein, the apex of which was claimed by both parties to lie within their surface lines vertically extended downwards, and by virtue thereof they both asserted ownership and possession of the vein, and commenced mining it. It also appears that appellant filed a complaint for trespass and for an injunction against respondent, and that respondent filed an adverse claim against appellant, in which it asked that the right of possession and ownership might be adjudged to it, and for an injunction. By consent both parties were enjoined from working the mine until final decree, which was entered on January 18, 1886. From this decree appellant prayed an appeal to this court, and for an order restraining defendant from mining. This was granted for the period of 26 days in which to perfect the appeal. This was done, and the decree of the court below was affirmed at the last term, and at the same time an appeal was prayed to the supreme court of the United States, and an injunction was also asked and granted, restraining respondent from working the mine during the pendency of the appeal. This injunction the respondent now moves the court to dissolve, for the reason, as alleged, that the court issued it without jurisdiction, and the appellant insists that the court should not consider the motion, for the reason that the term has passed at which the restraining order was made.

We will first consider the point made by the complainant. If the restraining order was made without jurisdiction it is void; while the court from its record declares that it is valid, and will continue to do so until it is set aside. If the order is void, the court ought to say so on its record, that its dignity may be preserved, and that persons who may wish to rely upon the order inay not be deceived and led into errors. We hold that this court may set aside the restraining order in question for want of jurisdiction, though made at the last term, if it shall be of the opinion that the order was made without jurisdiction. In this view we are supported by the following authorities: Ex parte Crenshaw, 15 Pet. 119; Shuford v. Cain, 1 Abb. 302; Freem. Judgm. (3d Ed.) § 96, pp. 78, 100.

This brings us to the respondent's point: Had this court power to make the restraining order in question? The third section of an act of congress in

relation to courts and judicial officers in the territory of Utah provides "that district courts shall have exclusive original jurisdiction in all suits or proceedings in chancery," etc. Comp. Laws Utah 1876, p. 53. And section 9 of "An act to establish a territorial government for Utah" provides for writs of error and appeals from district courts to the supreme court of the territory, and, in the following language, from the latter to the supreme court of the United States: "Writs of error and appeals from the final decisions of said supreme court shall be allowed and may be taken to the supreme court of the United States in the same manner, and under the same regulations, as from the circuit courts of the United States," etc. Comp. Laws Utah 1876, p. 31.

In the case of Hovey v. McDonald, 109 U. S. 150, S. C. 3 Sup. Ct. Rep. 136, appealed from the supreme court of the District of Columbia, the court said: "In this country the matter is usually regulated by statute or rules of the court, and, generally speaking, an appeal, upon giving the security required by law, (when security is required,) suspends further proceedings, and operates as a supersedeas of execution. This we have seen is the case in the circuit courts of the United States. But the decree itself, without further proceedings, may have an intrinsic effect which can only be suspended by an affirmative order either of the court which makes the decree, or the appellate tribunal."

The appeal-bond given by the appellant in this case in the court below suspended further proceedings in that court, but the decree had an intrinsic or operative effect upon the rights of the parties. It dissolved the injunction which existed to that time, and adjudged the possession and ownership to be in the respondent, and left the respondent in possession of the mine, with the right to take the ore, and dispose thereof in any way it might see fit, and enjoined the appellant from mining the same, or from interfering in any way. And this right to take the ore, and dispose of it, could only be suspended by an affirmative order of the district court or of this court, the court which made the decree, or the appellate tribunal; and, when the decree of the district court was affirmed by this court, the decree so affirmed retained and possessed the same operative effect, and could only be suspended by an affirmative order of this court or the supreme court of the United States.

Further along in the same opinion the court said: "It was decided that neither a decree for an injunction, nor a decree dissolving an injunction, was suspended in its effect by the writ of error, though all the requisites for a supersedeas were complied with. It was not decided that the court below had no power, if the purposes of justice required it, to order a continuance of the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This power undoubtedly exists, and should always be exercised when any irremediable injury may result from the effect of the decree rendered."

While the decree in this case was rendered by the district court, when it was affirmed by this court, and an appeal from that affirmance was taken, the decree, for the purposes of the appeal, must be regarded as a decree of this court, and the appeal from that decree or decision must be taken “in the same manner, and under the same regulations, as from the circuit court of the United States."

By the term "regulations" is meant the rules by which the action of the circuit courts of the United States are limited and controlled in granting appeals, and the action of this court is limited and controlled by the rules which govern those courts. Therefore, if the circuit courts of the United States have the power, in granting appeals, to suspend by an affirmative order the intrinsic or operative effect of the decision or decree appealed from, this court has it also. Speaking with respect to appeals from the circuit courts of the United States and other courts, in the case of Hovey v. McDonald, supra, the court held that the power undoubtedly exists to order a continuance of

the status quo until a decision should be made by the appellate court, or until that court should order the contrary. This court may reverse, aflirm, or modify any judgment appealed from, and may direct the proper judgment or order to be entered, or a new trial or further proceedings to be had, and it may grant an appeal to the supreme court of the United States, as was done in this case, that the parties may have their rights with respect to the property in dispute determined by that tribunal. In this grant of power it appears reasonable that the authority should be implied to restrain the effect of the judgment appealed from so as to preserve the subject of litigation for disposition according to the final judgment of the appellate court. The object of the appeal is not to give that tribunal of last resort merely an opportunity to make a vain display of its powers and wisdom. The appeal in this case was given that the parties might have their rights to the property in question determined, and that it might be given to the one entitled to it as finally decided. If, when that decision shall be made, the property shall be beyond the effect of the decree and the process of the court, and the party to whom it may be adjudged does not get it, the purpose of the appeal will have been defeated, and the ends of justice will not have been reached.

The motion to dissolve the injunction is denied.

BOREMAN and HENDERSON, JJ., concur.

(6 Mont. 297)

TERRITORY ex rel. MCCANN v. SHERIFF OF GALLATIN CO.
(Supreme Court of Montana. January 10, 1887.)

1. INSANE PERSONS-INQUISITION-DEFECTS IN-HABEAS CORPUS.

Where, on a hearing upon the return to a writ of habeas corpus for the discharge of a person adjudged insane, it appears that the jury who examined the relator failed to certify upon oath that the charge was correct, and that only two jurors qualified to do so signed the verdict, he will be discharged from custody.

2. SAME CONSTITUTIONAL LAW-GEN. LAWS MONT. FIFTH DIV. 711; ACT OF MARCH 7, 1883.

Gen. Laws Mont. Fifth Div. 2 711, providing for the examination and commitment and custody of persons charged and found insane, though imperfect in its protective requirements, is not unconstitutional. That portion of it which required that the person committed shall be shown to be incompetent to provide for his or her own proper care or support, and to have no property applicable to such purpose, and no kindred, etc., is abrogated by the act of March 7, 1883, providing that all persons hereafter adjudged insane shall be cared for by the territory."

Appeal from district court, Gallatin county.

Habeas corpus.

George Haldorn, for appellant and petitioner, McCann. No appearance for respondent.

GALBRAITH, J. This is an appeal from an order of the judge of the First judicial district, made at chambers, remanding the appellant to the custody of the respondent, after a hearing upon a return to a writ of habeas corpus. The relator was held by the sheriff, by virtue of a warrant of commitment, issued out of the probate court of Gallatin county to the said sheriff, ordering him to be confined in the asylum for the insane, at Warm Springs, Montana territory. The statute under which the probate court proceeded, and by virtue of which the commitment was issued, is as follows: "From and after the passage of this article, it shall be the duty of the probate judge, or, in his absence or inability to act, the chairmen of the boards of county commissioners of the several counties of this territory, upon the application of any person, under oath, setting forth that any person, by reason of insanity, is unsafe to be at large, or is suffering under mental derangement, to cause the said person to be brought before him, at such time and place as he may direct; and the said