
    THE BULLION, BECK AND CHAMPION MINING COMPANY, Appellant, v. THE EUREKA HILL MINING COMPANY, and Others, Respondents.
    Injunction, WRIT or — When Void — When Set Aside. — A restraining order made -without jurisdiction, is void, and may be set aside though made at the term preceding the making of a motion to set aside.
    Id. — Jurisdiction or Supreme Court or Territory to Make. — An appeal from the supreme court of Utah Territory to the supreme court of the United States must be taken in the same manner and under the same regulations as from the circuit courts of the United States. The supreme court of the territory, therefore, posseses the power to make an order of injunction, preserving the staUis quo, until a decision be made in the supreme court of the United States.
    ORIGINAL motion to dissolve an injunction. Tbe facts are stated in tbe opinion of tbe court.
    
      Mr. W. H. Dickson and Mr. M. Kirkpatrick, for tbe motion.
    
      Mr. Arthur Broten and Mr. J. G. Sutherland, contra.
   Zane, C. J.:

It appears from tbis record tbat tbe appellant was tlie owner of mining claim lot No. 76, and tbat lot No. 39, owned by respondent, was immediately east thereof; that more than 100 feet beneath tbe surface of tbe first mentioned lot there was a valuable mineral vein, tbe 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 a cross-complaint against appellant, in which it ashed that the right of possession and ownership might be adjudged to it; and for an injunction. By consent both parties were enjoined from working tbe 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 aslced 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 may 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., 102; Freem. Judgm. (3d Ed.), sec. 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 tbe supreme court of tbe territory, and, in tbe following language, from tbe latter to tbe 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 tbe United States in tbe same manner, and under tbe same regulations, as from tbe circuit courts of the United States,” etc.: Comp. Laws Utah 1876, p. 31.

In tbe case of Hovey v. McDonald, 109 U. S., 150, appealed from tbe supreme court of tbe District of Columbia, tbe court said: “In this country tbe matter is usually regulated by statute or rules of tbe court, and, generally speaking, an appeal, upon giving- tbe security required by law, (when security is required), suspends further proceedings, and operates as a su]>ersedeas of execution. This we have seen is tbe case in tbe circuit courts of tbe United States. But tbe 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 tbe decree, or the appellate tribunal.”

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

Further along in tbe same opinion tbe court said: “It was decided that neither a decree for an injunction, nor a decree dissolving an injunction, was suspended m its effect by the writ o£ 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 ivas 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, affirm, 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 o£ 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 power 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.

Bohemian, J., and Hendekson, J., concurred.  