Show UNDER 3 s W the contempt case of ot tho the ogden city fit railway dp up in court IDLE 11 SIDE BY TO E the iff two lauffer of the Derei dails la hi thi the cau case mid file with the th district clerk S sma am alog 11 ap 0 of f the speeches the first district court room was filled yesterday morning when the contempt case of H 11 II henderson et at al vs if 0 gilbert and A 11 II swan was called th the 8 plaintiffs plain were cepres represented anted by M ee kimball allison and lilies hiles and judge henderson Hend ereon the defendants att orneva were rhodee rhodes rogers and bludson judge rhodes read the defendants it answers which are given below in the district Dittri ct court of the first judicial district ot of the territory of 0 utah and nd county of weber 11 II 11 henderson A 8 garretson Garre tion and joseph joset b Lb brinker rInker plaintiff Ys the ogden et C city R railway co corporation jarels couk conklen lin mortgage age trust co defendant defendants in the matter of 0 the application of 0 11 ir henderson Bend ereon and affidavit for a warra warrant t lor for contempt now comes A 11 II swan and in reply ay to the charge charges contained in the affidavit ref I 1 bled led here in by eald said 11 II 11 II henderrson lay says that he be ad ernits that the complaint nan as duly fi filed ledwith with the cerk ark of this court and summon issued albo an undertaking in the turn sum ol 01 ta as a required by the judge ol 01 aid said court and that upon the cling of tho the und undertaking dertkin ert kin that a temporary restraining res g order and an order to 1 N bow cause 11 wai we sued issued and that he ad mi mite ta th chaton je on the rh day ot of november 11 is copy of the complaint and summons wa 98 nerved served upon him ai as president preel dent ol 01 the ogden city icat hallway urn way company by ibe the united baates manhal marshal and also a copy of the order and order to show cause and says that the same waa was served upon him about a clock on sunday the ath day im and the laid said A rr swan further farther says that on n resh the 2 1 of 0 Oct e t obertA 0 ber ra D 1 h he ai 8 ade n t of the 0 ogden g d e n city R railway I 1 i 1 corn CM pany turned over the possession mans manage e ment and control of aid said rosi to t the e jam jarv 1 iii conklin forgage trust company m bo ho hare have e ever ilace bad the fu I 1 charge and control of the ogden city ky It railway allway company it 0 operation and all and singular ain gular its 1 property y that he bai not b been n in the employ of the honal noto lestr has jaran arvis C conklen in mortgage r tg sg truit com company pan anor nor bai be he had ibe the control or management of the road in any manner or any work con st ruction or repair upon said road that he baa has not personally penona ly done any of the act acts or caused to bedone te done any ol 01 t the heets act complained bomp ainoa ot of in the he complaint and he b ha he no right or au authority thorit ua to in any manner in with any of the is actions of the Jarvi conklin Mor tago trul trust company or any 0 of iiii it agents t 02 employee that he t h heden denies lei specifies 0 cai h an and d every charge made by the eald said if II 11 ll enderson except t such rustlers matter ai as have been heretofore ad admitted if 1 I 1 tied wherefore ta le having fully answered anwer ed befaro thi this court As he prays that he m may a bo be hence hedou arga j di discharged A SWAN subscribed aud and sworn u orn to before mathis me thi day of november A D IWO 18 C CM M M C craz I 1 in the district Dittri ct court of the first judicial district of the territory of utah and county of weber 11 II 11 henderson AS 8 garritson GarrI tIon and joseph brinker 1114 tl to ibe the ogden city railway rati 7 company a corporation the he Is jar vis vl conklin mortgage trust company company defendant defendants in the matter of the apall application aaion of IL 11 II ne benderson and affidavit for or ce warrant for contempt com cornea now 11 C gilbert and I 1 la a reply to the he charges contained in he the blied flied led herein by aid 1111 II 11 U Ilen clendenon denon says ay that he admit that ibe the complaint complain t was fully bled died with the clerk ottili courland court cour and tand issued and alao also an undertaking in the urn um of ai as required by the judge of thi this court and that upon uvon the be filing of the under taking a tern temporary retrain ning ing order and ginyo gi ryo an order to 10 how vm cadee was issued that h he a admit admits that on the ath ih day of no W a copy of the complaint and summons lun imona and restraining order and order to how show cause wax served upon him as a ex rice vice president of the jaret conklen mortgage tru tra t company by the united litotes mai manhal rhal and dt fay ays that the same am was nerved served upon him about the hour alleged in the e complaint p I 1 ll 11 inan a banday sunday the ali day of noye november amr A D II 11 0 gilbert further farther answering as baye s t that bat immediately Immediate ig upon receipt iron from iti ahe yu united statesman Sta tesmar mannal al of the copy of the complaint summons order and or order de to bow show causa cause in the above entitled act action I 1 on he proceeded proceed od to the place were the men were at the employ of the jarria jarvis conklin mortgage f trust company compari l and gave post poll 1 ive lve instructions that they s should 1 at once ce cease ass work up dpn cfall sall railway rail way in excavating lay ing of tiei ties rail ralls and in any manner ing in in in any 1 labor 1 b 0 1 whatever r that all 11 of 1 the men ao so employed did then and here there cease work and left len aid said work and aud al nee that time h bae i is not been in the em ploy of the darvial hartli mortgage truit trust company c 0 that he n acted in abil matter belletine bell eTing that thereby be he waa was fully and co completely e I 1 y obeying the order of thil this ton court rt and t that h at since that limo time there ha has been no work of any kindor kind or character done in and upon W laid d track or ground described in the compla complaint 1 a t that h lull this affiant has any knowledge 0 cledge or in formation ol 01 and this denies that be he hai has in any manner directly or indirectly violated any order of thil this court aj erred served upon him or haj has caused any other person to to do cither either V d directly or 1 indirectly I 1 az ind saty 8 bacr and 0 m to before me MO thu big jath day of olo november A D asso 0 M IM mcelcar cc LURE judge rhode said ha he wae was was ready to prove toe the statement of both swan and gilbert attorney kimball said as fr far as mr swane answer is concerned bo was willing to take that as true and moved that he bo be released but the statement of mr mar gilbert did not answer the complaint since the granting grant of the restraining order the defendants track laid sunday morning was still there notwithstanding the tact fact that they had been repeatedly ordered to remove it the plaintiffs claim that the track does most serl bously interfere with the operating and buil building dinc of their lines this had bad been the reason for the affidavit and upon this they stand and ask that defendant be deemed guilty of contempt judge rhodea a read thel papers recently filed bled in the clerks office offic and published in anz 6 of recent date in order to more fully ebow show their case in its lie proper light the affidavit of mr I 1 II lenderson enderson not only a says ays that we did not remove the track referred to but have violated every order of i ibe the court the prayer tor for the restraining reorder 0 order or the order itself does I 1 not ot require us to remove the be track we lye admit that our men were at work laying track lo 10 but u t upon the serving of the restraining ord order arthey they bad had been ordered to cease labor and never from that tima time to this have they been eng engaged aired upon our lines before wore referred to therefore wo we move tor for a release attorney kimball moved for a com on the return aa as be he claims it admits everything alleged in the writ of attachment the track complained island I 1 of in the aill affidavit lavit has beon been faid fald upon our roadbed and from returns received hereu here U there today to day obstructing our roadbed and the laying of oar our lines I 1 the stand taken by the defendants ie is that the restraining order ie is simply restraining and not mandatory an and that upon the serving of said order the matter was to be left as found fund until the further examination we va adm admit I 1 t that the order was more restraining than mandatory till still w we bold hold that it would partake somewhat ot of the nature of a mandatory order the defendants admit in open court that they have constructed and are 21 now 0 w 0 maintaining their tracks upon tb the e pl af roadbed and thus obstructing ting irig our work which brines brings it within the scope of 0 our order if these defendants are allowed to doand continue doing the foregoing the plain plaintiff tiT might jaet just as well never have received an answer or restraining ord order e r ibe oral eal cases were here cited b by the attorney relating to the question t on at issue suppose they have quit work their newer answer admits that the obar obstruction c tion is abill there and we are unable to do the desired and necessary labor on our lines I 1 I 1 y your our honor please we claim t that h at the order acted in III one sense as a mandatory atory and restraining order and we are now in court simply to ask for the enforcement of that order judge rhodes we do not intend to discuss the general general law upon restraining orders but t to confine ourselves to the laws of the territory governing the same the gentleman has stated in in open court hat that be he intends to punish in ish t the b a defendants tor for maintaining nga a nuisance the laws of the territory I 1 are the only ones that have any effect u upon pa n t this b 1 a ca case be and distinctly state that a restraining order i is i s an order demanding the ceasear on of anything which Inter interfere fers with the rights of others under the statutes there are two kinds of injunctions a permanent and temporary the plaintiffs de demand in and t that hit nuisance be abated and removed when the laws of utah distinctly state th that at this could never be done except upon a final bearing of the case and a judgment there has not been an injunction issued but simply a restraining a tr a i n ii g 0 or rd derand e r a n d al all 1 p previous r ev i 0 u s j judgments a d g an e n t e h have av 0 b been e e n t to 0 t the h 0 e effect ff e c t t that b a t a mandatory order can not be made until an injunction has been issued 1 I cite you to a case wherein a mandatory 0 r y order r d er was as applied le d fo for r up upon 0 n a an n dat it application p li c ali 0 n for for a app restraining a n 1 n g 0 order r de r the case referred to is one in which a minister and part of bis his congregation tried to close the church h doors upon another faction the restraining 10 g order was granted Krin ted but the m minister into I 1 er refused to unlock the doors and the mandatory order was refused until the final judgment we eay say that when this injunction was berged as a law abiding citizen mr gilbert went with thebo these papers in his hands and ordered the writ stopped and did just as be he thought the order desired him to do the order did not demand the removal of the track already built suppose upon an investigation next saturday atlis court decided that the track is ours our who ia is going to pay us forit for it why should we remove conr lines until it is definitely decided to whom the atilt of way belongs under our statute it if wo we are maintaining a nuisance there are numerous ways by which it can be abated it seems that the corn com claims the right to every street fan cany a i this city and we do cot not see why it will so materially interfere with their rights by keeping that little piece of track near the ogden river in place I 1 for the present at least attorney hudson the plaintiffs plaint iffa contend that they have done a large am amount aunt of track laying namely on washington avenue and and twenty fifth street and they pray that an injunction be granted grante them prohibiting the interference with ili ibe a construction of heir their road it if the court remembers we made an a application tor for an anju injunction ct on d demand man it arg the re removal oval of the plaintiffs plaintiffs crossing of our line at t the a corner of washington ashing a avenue an and d twenty enty fiat fifth street the a court stated ta t a that he won would id not make them d do 0 anything but would restrain them f from rom inter ing with our road court here adjourned until 2 p m 2 P x judge hudson lite resuming suming where w we a left off this mornine mo rnino I 1 will eay say that whatever decision your honor may make to today day it will not affect in any way the investigation next saturday the only thing to be bottled settled is whether mr gilbert ie Is in contempt or not A large number of authorities U ties were cited we beok ask the tle cou court rt to take the prayers orders and various papers filed with the clerk and look abam over and render a dewon decision c whether mr gilbert Is of contempt and not refer in any way to the decision to bo be made next saturday 1 the rho closing argument waa was made by judge in an able and telling speech A after it er the gel general aeral bumming summing up the matter was taken under advisement to be decided this morning |