Forrester & MacGinniss v. Boston & Montana Consol. Copper & Silver Mining Co.

Mr. Justice Hoixoway:

I dissent. I do not agree with the majority of the court in the disposition that is made of this case. The Second extraordinary session of the Eighth legislative assembly passed an Act amending Section 21 of the Code of Civil Procedure. Among other things, that section, as now amended, provides: “In equity cases, and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, * * * and determine the same, as well as questions of law, unless, for good cause, a new trial or the taking of further evidence in the court, below be ordered.” The manifest purpose of the legislature in 'passing this Act wras to enable this court, upon appeals in equity cases, and in proceedings of an equitable character, to finally dispose of the cause, either by making the proper order itself, or by directing specifically what disposition should be made of the cause in the court below. This legislation is binding upon this court, and, in my opinion, should be followed in every instance, where the record presents sufficient evidence to enable us to finally dispose of the litigation, thereby obviating new trials and subsequent appeals. I am of the opinion that the evidence in this record is sufficient to enable this court to determine which items of compensation should be allowed, which should be disallowed, and the amount that should be allowed in those instances where the compensation fixed by the lower court is deemed excessive. •