Stabler v. Porter
| Decision Date | 12 December 1924 |
| Docket Number | 5648. |
| Citation | 232 P. 187,72 Mont. 62 |
| Parties | STABLER v. PORTER, State Auditor. |
| Court | Montana Supreme Court |
Rehearing Denied Jan. 5, 1925.
Appeal from District Court, Lewis and Clark Counties; A. J. Horsky Judge.
Mandamus by Erma M. Stabler against George P. Porter, State Auditor and ex officio Commissioner of Insurance. Judgment for defendant, and plaintiff appeals. Affirmed.
A. P Heywood and C. E. Pew, both of Helena, for appellant.
C. A Spaulding, of Helena, for respondent.
In an action pending in the district court of Lewis and Clark county, wherein Erma M. Stabler was plaintiff, and J. M. Adamson, Charles Hageman, the Maryland Casualty Company, and the Fidelity & Deposit Company of Maryland were the defendants, a judgment was rendered and entered on May 3, 1924, in favor of the plaintiff and against the defendants for $984.75. The Maryland Casualty Company, a foreign corporation doing business in this state, was the surety on the official bond of Adamson, a constable, and the Fidelity & Guaranty Company, also a foreign corporation engaged in business here, was the surety on the official bond of Hageman, a constable. On August 5 the clerk of the district court transmitted to the state auditor, ex officio insurance commissioner, a certified copy of the judgment, with the statement that the judgment had not been paid. On August 6 the defendants mentioned in the action above perfected an appeal to this court by giving the required notice and furnishing the statutory appeal bond. They also secured a stay of execution by providing the bond required for that purpose by section 9735, Revised Codes, to the sufficiency of which bond no exception was taken. The insurance commissioner failed or refused to act upon the record, and on September 6 this proceeding was instituted. An alternative writ of mandate was issued, but on the return the court sustained a motion to quash, and the proceeding was dismissed. The relatrix has appealed.
We shall not stop to determine whether the order made by the trial court is in point of law a judgment. The question has not been raised, and we shall assume, for the purpose of this case only, that the appeal is before us.
Chapters 40 and 139, Laws of 1909, supplemented by Chapter 6, Laws of 1911, now sections 6206-6236, Revised Codes, provide the conditions upon which a foreign indemnity or guaranty company may transact business in this state. Section 6207, Revised Codes, authorizes such a company to become surety on the official bond of any public officer. Section 6221 provides that:
"If any such company shall neglect or refuse to pay any final judgment or decree rendered against it upon any such bond * * * from which no appeal, writ of error, or supersedes has been taken for ninety days after the rendition of such judgment or decree, it shall be the duty of the clerk of the court in which said judgment or decree was rendered to certify a copy thereof to the insurance commissioner, together with the fact that it remains unpaid; said commissioner shall revoke all licenses and the certificates of authority issued to such company," etc.
Causes are not removed to this court by writ of error, although that procedure might be made available. Section 15, art. 8, Constitution of Montana. Technically, a supersedeas is an auxiliary process designed to supersede the enforcement of a judgment of the court below brought up by writ of error for review. Williams v. Bruffy, 102 U.S. 248, 26 L.Ed. 135. In the more general sense it is used synonymously with "stay of proceedings" (Dulin v. Pacific W. & C. Co., 98 Cal. 304, 33 P. 123), and doubtless it is in this sense that it is employed in section 6221 above.
By this proceeding it is sought to compel the state auditor, as insurance commissioner, to revoke the license of each of these foreign companies for its failure for more than 90 days to pay the Stabler judgment, appeal therefrom, or secure a stay of proceedings. We enter upon our investigation indulging the presumption that the judgment of the trial court is correct, and therefore the appellant must assume the burden of showing reversible error. Haley v. McDermott, 45 Mont. 217, 121 P. 1050.
In some of the states the proceeding in mandamus is treated as an ordinary civil action, from which it results that the writ issues as a matter of right. 26 Cyc. 144. That rule, however, does not prevail in this jurisdiction.
"Mandamus is an extraordinary remedy, not to be had merely for the asking, but to be obtained only in those rare cases wherein there is not any plain, speedy, and adequate remedy in the ordinary course of law; * * * hence the rule so often announced by this court that the party applying for the writ must disclose the facts which establish his clear legal right to the relief sought." State ex rel. Duggan v. District Court, 65 Mont. 197, 210 P. 1062.
In State ex rel. Donovan v. Barret, 30 Mont. 203, 81 P. 349, this court said:
"Mandamus is a discretionary writ, and will be allowed only in furtherance of justice upon a proper case presented."
In State ex rel. Beach v. District Court, 29 Mont. 265, 74 P. 498, we quoted approvingly from People ex rel. Harless v. Hatch, 33 Ill. 9, the following language of Mr. Justice Breese:
"The writ of mandamus is a high prerogative writ, to be awarded in the discretion of the court, and ought not to issue in any case unless the party applying for it shall show a clear legal right to have the thing sought by it done."
In State ex rel. Danaher v. Miller, 52 Mont. 562, 160 P. 513, it was said:
In 26 Cyc. 144, it is said:...
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