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

• Decision Date: 04 June 1934
• Docket Number: 7271.
• Citation: 33 P.2d 526,97 Mont. 160
• Parties: STATE ex rel. ELLAN v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY et al.
• Court: Montana Supreme Court

33 P.2d 526

97 Mont. 160

STATE ex rel. ELLAN v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. IN AND FOR CASCADE COUNTY et al.

No. 7271.

Supreme Court of Montana

June 4, 1934

Original proceeding in prohibition by the State, on the relation of Nicholas Ellan, against the District Court of the Eighth Judicial District of the State of Montana, in and for Cascade County, and Hon. W. H. Meigs, a judge thereof, and the clerk of court.

Peremptory writ issued.

Wellington D. Rankin and Arthur P. Acher, both of Helena, for relator.

Clift & Glover, of Great Falls, for respondents.

MATTHEWS Justice.

On December 7, 1933, L. H. House and W. R. Comerford copartners, commenced action against the relator, Nicholas Ellan, in the district court of Cascade county to recover the sum of $2,728, alleged to be due as rental on certain road construction machinery let by the plaintiffs to the defendant. On the same day Ellan accompanied House on an automobile trip from his home in Lewiston, Idaho, to Helena Mont., arriving there at 7:30 p. m., and was served with summons and a copy of the complaint in the action, on the morning of December 8th. Thereafter Ellan appeared specially in the action for the sole purpose of moving, and did move that the service be quashed, on the ground that he was enticed into the state for the purpose of service, by a promise of compromise and settlement of the controversy over the ownership of the machinery and the indebtedness asserted by each of the parties against the other. The motion was supported by Ellan's affidavit, to which House interposed a counteraffidavit, and, on the hearing of the motion, House contradicted certain of Ellan's statements orally. At the close of the hearing, the court, Hon. W. H. Meigs presiding, denied the motion to quash and granted Ellan twenty days within which to answer to the complaint.

Ellan filed herein his petition for a writ of prohibition restraining the court, Judge Meigs, and George Harper, clerk of the court, from further proceeding in the action. The petition recites the history of the dealing between the relator and the firm of House & Comerford, sets out certified copies of all papers filed in the above cause, and the court's order denying the motion, but does not present a transcript of the evidence taken at the hearing. The showing made was by the court deemed sufficient for the purpose and an alternative writ was issued, returnable April 19, 1934, in which all proceedings in the action were stayed until the further order of this court. The respondents answered, admitting certain of the allegations of the petition and denying others; briefs were filed and oral argument presented, whereupon the matter was submitted for determination.

From the files and records it appears that in November, 1932, the state highway commission let a contract to Sam Orino, of Spokane, Wash., for the construction of a part of the Helena-Great Falls highway, for a portion of which Orino gave a subcontract to the firm of House & Comerford, of Lewiston, Idaho. Certain trucks and construction equipment, later used by the firm, was then in Ellan's machine shop at Lewiston; whether it then belonged to Ellan and was leased to the firm, as Ellan contends, or belonged to the firm and was merely placed with Ellan for repairs, as House asserts, is not material here. This property was, on the completion of the House & Comerford contract, returned to Ellan in Idaho, in October, 1933, and on November 9th Ellan filed with the highway commission a claim against the firm and Orino for $12,199 as rental thereon. House & Comerford denied liability and countered with a claim for $2,728 as rental due them from Ellan for the period from October 17, to December 1, 1933.

This brief statement accurately discloses the status of the controversy being waged between the parties at the time House and Ellan traveled together by car from Lewiston, Idaho, to Helena. There is no dispute but that the declared purpose of this trip was to seek a compromise by conference with Orino and officers of the highway commission, in order that the commission might settle the Orino and House & Comerford claims, which settlement the commission desired to close on December 8th, according to House's representation to Ellan.

Ellan's affidavit on motion to quash the service is to the effect that House made false and fraudulent representations, under pretense of discussing a compromise, for the purpose of enticing him into the state in order to secure service upon him, which representations were that Comerford had assigned his interest to House and would not be in Montana; that the highway commission had given notice that the matter would be closed on December 8th, and that Orino had written House, saying that he, Orino, would be in Helena on that date, and demanded that House and Ellan be present. He declares that, on finding Comerford in Helena, he asked House why Comerford should be there, and was told, "You will find out tomorrow morning"; that on finding that Orino was not in Helena, he called the latter at his home in Spokane, and was told that he had not intended being in Helena and had not requested House and Ellan to be there. He further charges in his affidavit that House exhibited to him a "pretended copy" of a letter from Orino, when no such letter was written, as proved by his telephone conversation with Orino.

In his counter affidavit House asserts that he was acting in good faith and in the belief that a compromise could be effected; that he had a letter from Orino, which he exhibited; and that he did not know that Orino would not be in Helena until he met an employee of Orino at Saltese, when he was informed that Orino was going to Spokane but would come to Helena if requested, and declares that Ellan heard the conversation; he further declares that he knew nothing of the commencement of the action until he reached Helena, and that it was only after he had endeavored to find Ellan on the night of the 7th and again on the morning of the 8th and had concluded that Ellan did not desire to talk compromise, that he and Comerford caused the service to be made. In his affidavit House does not deny that he had the conversation to which Ellan swears, nor does he attempt to explain why Comerford came to Helena.

On the hearing Comerford did not appear, nor did Orino, and no attempt was made to clear up the suspicious circumstances attendant upon the fact that Comerford, who was not supposed to be in Helena, was there, and Orino, who was to be there, was not, nor how it transpired that the papers were in Helena for service on Ellan, who had been a resident of Lewiston, Idaho, for thirteen years and who had never, so far as the record discloses, been in Helena nor had reason to be there, except for the representations made to him by the affiant.

It is first contended that prohibition does not lie where the court has jurisdiction of the subject-matter, and jurisdiction of the person depends upon contested facts. In support of this contention the respondents cite 22 R. C. L. 12, and State ex rel. Stagg v. District Court, 76 Mont. 495, 248 P. 213, 214. The court determined the applicability of the writ for which relator prays before issuing the alternative writ. However, the text from Ruling Case Law is predicated principally on opinions in cases wherein the trial court had proceeded to judgment and, therefore, the appellate court declared that the question should have been presented on appeal instead of resorting to the extraordinary remedy of prohibition. See In re Alix, 166 U.S. 136, 17 S.Ct. 522, 41 L.Ed. 948; Ex parte Oklahoma, 220 U.S. 191, 31 S.Ct. 426, 55 L.Ed. 431; Pennsylvania R. Co. v. Rogers, 52 W.Va. 450, 44 S.E. 300, 62 L. R. A. 178. The only case cited in support of the text and applicable to the case at bar is Finley v. Moose, 74 Ark. 217, 85 S.W. 238, 239, 109 Am. St. Rep. 74, where it is said that this rule applies "though the superior court should be of opinion that the questions of fact have been wrongly determined by the court below, and, if rightly determined, would have ousted the jurisdiction. *** Prohibition is only granted when the usual and ordinary forms of remedy are insufficient."

This is not the law of this state. True, if a matter is properly before a trial court, neither the court nor judge can be prohibited from passing upon it; it is the plain duty of the court to do so, and it is within its jurisdiction to dispose of the matter "rightly or wrongly," and, after it has so disposed of the matter and entered judgment, resort should be had to an appeal from the judgment; but here the court has disposed of no matter within its jurisdiction, but has merely held that it has jurisdiction to proceed. "If *** it appears from the record that the respondent court is without jurisdiction, and for that reason a valid judgment cannot be rendered under any conceivable circumstances, the writ applied for may issue, regardless of whether any other remedy is available." State ex rel. Stagg v. District Court, supra, citing many cases.

In the circumstances shown above, why should a nonresident be put to the inconvenience and expense of answering a complaint, preparing for trial, bringing his witnesses from a sister state and going through the form of, perhaps, a long drawn out trial, suffer judgment to be entered against him, and appeal to the Supreme Court, all for the purpose of having the court declare that the whole proceeding was needless and without effect, as the trial court was without jurisdiction?

The only question...