State ex rel. Heinze v. Dist. Court of Second Judicial Dist.

• Decision Date: 01 May 1905
• Citation: 32 Mont. 394
• Parties: STATE ex rel. HEINZE v. DISTRICT COURT OF SECOND JUDICIAL DIST. et al.
• Court: Montana Supreme Court

32 Mont. 394

STATE ex rel. HEINZE

v.DISTRICT COURT OF SECOND JUDICIAL DIST. et al.

Supreme Court of Montana.

May 1, 1905.

Original application for writ of prohibition by the state, on the relation of F. Augustus Heinze, against the district court of the Second Judicial District and George M. Bourquin, a judge thereof. Dismissed.

Holloway, J., dissenting.

M. S. Gunn, for relator.

MILBURN, J.

This matter is before us on application for a writ of prohibition upon the relation of F. Augustus Heinze. The petitioner complains that the district court of the Second Judicial District is about to strike his answer from the files of a certain cause pending in said court, wherein the Boston & Montana Con. C. & S. M. Company, plaintiff, sues him for a large sum of money. It appears from the petition and from the answer of the respondent court and judge that the plaintiff caused a certain notary public to issue a subpœna duces tecum addressed to the relator herein, directing him to appear before him, the said notary, in order that his deposition might be taken at the request and upon the demand of the plaintiff. It appears that the witness, when his deposition was taken, refused to answer certain questions, and thereafter failed and refused to sign the deposition, whereupon the attorneys for plaintiff appeared in the district court and moved that the answer of the defendant in the cause then pending, the relator herein, be stricken from the files, and that plaintiff have judgment for the amount demanded in its complaint. The relator, in his application for the writ, declares that he was required to appear and show cause why the motion should not be granted, and that thereupon he appeared and objected to the jurisdiction of the court to hear the motion or grant the relief therein demanded; “that the said court and the judge thereof threatens to, and will, unless restrained and prohibited by this honorable court, proceed to hear and determine said motion and application, and, if it is found that the statements and allegations in said motion of plaintiff contained are true, will strike the answer of your petitioner from the files, whereupon judgment will be rendered against him for the amount demanded in the complaint.” He adds that execution would immediately issue against the defendant.

The provisions of section 3306 (of title 3, relating to “Production of Evidence,” and of chapter 2, relating to “Means of Production”) of the Code of Civil Procedure are invoked by the attorneys for the plaintiff in support of the motion to strike the answer from the files. That section is as follows: “Disobedience to a subpœna, or a refusal to be sworn, or to answer as a witness, or to subscribe an affidavit or deposition when required, may be punished as a contempt by the court or officer issuing the subpœna or requiring the witness to be sworn; and if the witness be a party, his complaint or answer may be stricken out.” The court and the judge in the return admit the allegations set forth in the petition, “except the statement contained in the sixth paragraph of the petition, reading: ‘ *** And, if it is found that the statements and allegations in said motion of plaintiff contained are true, will strike the answer of your petitioner from the files, whereupon judgment will be rendered against him for the amount demanded in the complaint.”’ In reference to this allegation the answer states that, unless restrained, the court will proceed with the hearing of said motion, “and will make such order thereon as, in its opinion, will be proper under the facts and the law applicable thereto, granting the relief asked for by the plaintiff if the law and the facts require such order, and will hold that the court has power to strike out the answer under section 3306 of the Code of Civil Procedure in a proper case”; and there is an admission in the answer that the court overruled an objection to its jurisdiction-article 5 of Amendments to the Constitution of the United States and section 27, art. 3, of the Montana Constitution being cited by the objectors to support the contention that the statute is invalid.

The question submitted for determination is this: Is section 3306 of the Code of Civil Procedure constitutional? May the court lawfully, in the case of plaintiff against the defendant, find that the witness is in contempt in refusing to obey the order of a notary public? The answer to this question is of very great importance, but may not be given in this proceeding. Reading the definition of the writ of prohibition in section 1980 of the Code of Civil Procedure, we find that this court may arrest the proceedings of a district court when such proceedings are without, or in excess of, the jurisdiction of that tribunal. Any citizen may make any motion he may see fit to make, if he do it in a respectful way, in the district court, and it should proceed to hear and determine that motion; that is, dispose of its as the law may require, and either grant or refuse it. If what is asked is without, or in excess of, the jurisdiction of the court, it will deny the motion; if not, it will grant it in whole or in part, or deny it. The motion pending in the court below is to strike the answer from the files and enter judgment in default of answer. The court is now entertaining this motion, and will, unless prohibited by us, decide it. This it is its plain duty to do, and neither the court not the judge may be prohibited from hearing and passing upon any motion which may arise in any matter pending in the court. If what is asked for in the motion should be granted, and the court should, because of the law being unconstitutional, do something that it has no authority to do, then the defendant will have his remedy. What that remedy may be, of course should not at this time be indicated. There is no wrong without a remedy, and if the court should err in its decision there is a speedy and adequate remedy.

The language in which the respondent court and judge have couched the denials of the allegations of the petition as to what the court is doing and is about to do is not as explicit as it might be. Still, we interpret the words of the denials to mean that the court has not any present intention to strike the answer and render and have entered the judgment prayed for in the motion pending before it, but that, although it at present believes the statute to be constitutional, and conferring power and authority upon it to do as prayed, it will examine into all the facts and circumstances, and then, under the law as it shall then appear, do and determine as to it seems...