State ex rel. Bottomly v. District Court of Eighth Judicial Dist. in and for Cascade County

• Decision Date: 04 December 1943
• Docket Number: 8473.
• Parties: STATE ex rel. BOTTOMLY, Atty. Gen., v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY et al.
• Court: Montana Supreme Court

143 P.2d 559

115 Mont. 400

STATE ex rel. BOTTOMLY, Atty. Gen., v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY et al.

No. 8473.

Supreme Court of Montana

December 4, 1943

Application for a writ of review by the State of Montana, on the relation of R. V. Bottomly, as Attorney General, directed to the District Court of the Eighth Judicial District of the State of Montana, in and for the County of Cascade, and the Honorable H. H. Ewing, a judge thereof, to review the action of that court in dissolving a temporary injunction granted in an abatement proceeding without allowing the Attorney General to present affidavits and oral evidence upon the hearing.

Writ issued directing District Court to revoke its order dissolving injunction and to permit the Attorney General to file affidavits and to submit oral testimony.

R. V Bottomly, Atty. Gen., Fred Lay, First Asst. Atty. Gen., and Clarence Hanley and George S. Smith, Asst. Attys. Gen., for relator.

George E. Hurd and Murch & Wuerthner, all of Great Falls, for respondent.

PER CURIAM.

The relator has petitioned this court for a writ of supervisory control. Specifically he seeks to compel the district court of Cascade county to allow him to present affidavits and oral evidence upon a hearing to dissolve a temporary injunction.

The case involves an abatement proceeding in which the Attorney General filed a complaint to abate certain premises in the city of Great Falls occupied by a corporation known as the Brotherhood of Taxicab Owners and Drivers. The activity which is alleged to warrant the abatement is that the Brotherhood unlawfully conducted gambling upon the premises.

After the complaint was filed, a temporary injunction was issued. Later the defendant Brotherhood filed an answer denying the charge in the complaint and moved the court to dissolve the injunction. The court granted the motion to dissolve after refusing the Attorney General's demand that he be allowed to present affidavits and oral testimony in opposition to the allegations of the answer and the motion to dissolve.

It is the relator's contention that section 9250, Revised Codes, gives him the right to offer the affidavits and oral testimony sought to be introduced. That section is as follows: "If an injunction order be granted without notice, the defendant, at any time before the trial, may apply, upon reasonable notice, or upon order to show cause returnable at a specified time or forthwith, after service thereof, to the judge who granted the injunction order, or to the court in which the action is brought, to dissolve or modify the same. The application may be made upon the complaint and affidavit on which the injunction order was granted, or upon affidavit on part of defendant, with or without the answer. If the application be made upon affidavits on part of defendant, but not otherwise the plaintiff may oppose the same by affidavits or oral testimony, in addition to those on which the injunction order was granted. The defendant may also use oral testimony."

The statute is plain. It says: "If the application [to dissolve] be made upon affidavits on part of defendant, but not otherwise, the plaintiff may oppose the same by affidavits or oral testimony, in addition to those on which the injunction order was granted." Sec. 9250, Rev Codes.

For the purposes mentioned in section 9250, the defendant's answer...