
    L. L. McCANDLESS v. GEORGE R. CARTER, GOVERNOR OF THE TERRITORY, AND JAMES W. PRATT, COMMISSIONER OF PUBLIC LANDS OF THE TERRITORY.
    Motion fob Decree.
    Argued February 13, 1907.
    Decided February 15, 1907.
    Erear, C. J.,' Hartwell and Wilder, JJ.
    
      Practice — performing enjoined act after decision and before decree dismissing bill- — continuing injunction for purposes of appeal after act performed.
    
    Although it is improper practice to perform an act temporarily enjoined immediately after the filing of a decision and before the entry of the decree dismissing a bill for an injunction, it would be useless to expressly continue the injunction after the performance of the act for the purposes of an appeal without first setting aside the transaction, and in this case it is deemed best to allow the present status to continue, subject to the action of the appellate court.
   OPINION OF THE COURT BY

FREAR, C.J.

A decision haying been filed on the 1st instant reversing the decree of the circuit judge appealed from, sustaining the demurrer to the bill, and dismissing the bill, but without in terms dissolving the injunction which had been granted by the circuit judge restraining the respondent Pratt from exchanging certain public lands for private lands, the complainant moved the court on the 13th instant to enter a decree in a form which followed the decision and also provided that the injunction should continue in force until further order of the court for the purpose of permitting an appeal to the supreme court of the United States. The attorney general, on behalf of the respondent Pratt, filed an objection to granting the motion, on the ground that the complainant desired the decree merely for the purposes of appeal and that no appeal lies for the reasons that the record does not •disclose that the amount involved exclusive of costs exceeds the value of $5000 and that no federal question is involved. Ho also stated orally that upon the rendition of the decision on the 1st instant the exchange had been made on his advice, but that he did not object to a continuance of the injunction on that account and that his only objection to the entry of the decree was that it was only for the purposes of appeal and that no appeal lies. The court expressed surprise that the attorney general had advised the completion of the exchange before the entry of the decree and stated that the question of the continuance of the injunction for the purposes of appeal, whether by the court or the justice allowing the appeal, was one upon which he need not be heard as matter of right, and that, although he might be permitted to be heard as a matter of discretion, the court did not ■care to hear him under the circumstances, particularly in view of the fact that he, the natural one, as the successful party, to prepare and present a form of decree, had chosen not to do so but on the contrary to rely entirely upon the decision and had taken the position that no decree should or need be entered and had acted accordingly in advising the completion of the exchange before the entry of the decree, which, in the opinion of the court, was improper practice. The court, however, stated that the fact that the exchange had been made presented a more serious question, namely, whether the injunction should be continued in force when that which was sought to be enjoined had already been •done, and called upon complainant’s counsel to argue that question, which, after argument, the court took under consideration.

If the exchange had not been made the coirrt would not hesitate to continue the injunction in force pending the proposed appeal, but while it might do no harm it would be useless and absurd to provide expressly in the decree for a continuance of an injunction against what has already been accomplished. It is true that the court has inherent power, as well as express power under the statute, to protect its jurisdiction, and also that its •opinions or decisions remain subject to its control until tbe settlement and entry of tbe final decree. In tbis case, for instance, if tbe transaction bad been completed prior to tbe decision tbe com’t could have set it aside as well as treated tbe action as a contempt of court. Likewise, if of its own motion or on a motion for a rebearing or other motion it should set aside or modify tbe decision so as to produce a different result it could enforce that notwithstanding tbe consummation of tbe exchange. But tbe fact is that tbe decision was rendered before the exchange was made aud has not since' been altered. "We do not now see our way clear to take steps to set aside tbe transaction solely for tbe purposes of appeal without altering tbe decision upon tbe merits of the case. It is best now to leave the matter as it stands for such action as tbe supreme court of tbe United States may direct in case an appeal or writ of error is allowed to that court and beard by it. If that court decides tbe case upon its merits and reverses this court it may be able to restore tbe former status, and if it does not hear tbe case upon its merits it may be that an original bill to set aside tbe transaction would lie, from tbe disposition of which an appeal or writ of error might- be taken which could bo beard upon its merits by that court, but those are questions for consideration when they arise.

A. G. M. Robertson and G. D. Gear for complainant.

E. 0. Peters, Attorney General, and F. W. Milverton, Dey uty Attorney General, for respondent Pratt.

A decree may be entered following tbe decision, omitting an order dissolving tbe injunction.  