State ex rel. Moser v. District Court of Ninth Judicial Dist. in and for Pondera County

• Citation: 151 P.2d 1002,116 Mont. 305
• Decision Date: 25 September 1944
• Docket Number: 8532.
• Parties: STATE ex rel. MOSER v. DISTRICT COURT OF NINTH JUDICIAL DIST. IN AND FOR PONDERA COUNTY et al.
• Court: United States State Supreme Court of Montana

151 P.2d 1002

116 Mont. 305

STATE ex rel. MOSER v. DISTRICT COURT OF NINTH JUDICIAL DIST. IN AND FOR PONDERA COUNTY et al.

No. 8532.

Supreme Court of Montana

September 25, 1944

Writ of Certiorari to District Court, Ninth District, Pondera County R. M. Hattersley, Judge.

Proceeding by the State of Montana, on the relation of Clarence L Moser, against the District Court of the Ninth Judicial District of the State of Montana, in and for the County of Pondera, and the Honorable R. M. Hattersley, Judge thereof for a writ of certiorari to review a judgment punishing relator for contempt of court.

Judgment reversed and cause remanded with directions.

Phil G. Greenan, of Great Falls, for relator.

D. W. Doyle, of Conrad, for respondent.

MORRIS, Justice.

The relator was found guilty of contempt, fined $200 and given a jail sentence of five days. The matter is before us by certiorari. From time to time over a period of years the relator was a party in several actions in the district court in and for Pondera county. In one his ranch was sold to satisfy a judgment; that was followed by another in which he sought to have the judgment set aside for fraud, and which was before this court on appeal December 29, 1938. Moser v. Fuller, 107 Mont. 424, 86 P.2d 1. In another action in the district court he was found guilty of criminal libel, and fined $300. Judge Hattersley called in the Hon. John Hurly, Judge of the Seventeenth Judicial District, who presided in that case. The relator appears to have become obsessed with the idea that he was being persecuted by the court officials of Pondera county and particularly by Judge Hattersley, and sent the Judge several letters through the mails, letters couched in violent and irrational language, such as the following which appears in the record as "Plaintiff's Exhibit No. 10:"

"Valier, Mont.

Dec. 29, 1942.

Judge Hattersley

Dear Sir:

I am reporting your Courts blunder to the Dept of Justice of the United States

Putting out a warrant for me for exposing a theif. Nice business for a Justice Court to be protecting thieves.

Yours Disrespectively,

C. L. Moser:"

Then followed: "Plaintiff's Exhibit No. 11:

"Valier, Mont.

Jan. 11, 1943.

Judge Hattersley

Please note

I have been advised to appear before the Juducial Commette of the State Legislatores and ask for your impeachment for misconduct of office.

I will grant you one week to recall the papers you sent to Cascade Co. and hand them back to the Supreme Court for their decision. Otherwise I will have to protect myself.

I never will pay a cent filing fee in any court but the Supreme Court, and stand ready to pay these costs at any and all times when every asked to do so.

C. L Moser"

Both the clerk of court and the court reporter testified to one or more controversies between the Judge and Moser that took place in the clerk's office or the judges chambers, at which more or less criticism was indulged in. Judge Hattersley appears to have exercised no little patience in his contacts with the relator, but finally wrote him a letter, a copy of which appears in the record as follows:

"April 27, 1944

Mr. C. L. Moser

Valier, Montana.

Dear Sir:

As I told you I would do, I talked with Mr. Phil Greenan yesterday, he being your attorney in your mother's case, that of Daisy Gibbs v. C. P. Fuller, and he informed me that he was then getting out the necessary interrogatories for the deposition to be taken of your mother, at the place of her residence, and that he would take the matter up with Mr. D. W. Doyle, and see that the case was tried as soon as possible. As I informed you, I have no connection at all with this case, as Judge Dean King of Kalispell, Montana, has been called in and has assumed jurisdiction of the case. It rests entirely with the attorneys on either side to have this case ready for trial. When the case is ready, I will inform Judge King, and have him fix a day for trial agreeable to him and to the respective attorneys.

As I informed you, I thought it beneath the dignity of this Court, and myself as Judge of the Ninth Judicial District to pay any attention to the letters you wrote me, or to any papers you have filed with the court, and therefore ignored the same. I thought that your experience in the trial for criminal libel in this court a few months ago, when you were found guilty and fined, would show you that you cannot do the things you have done, and which you still persist in doing, but apparently it has not had the effect it should.

I have been very lenient with you, but my patience is now exhausted. While I did not give any attention to your letters, or answer them, they are still in the files of this office and available for any necessary or proper action. This is to inform you that if you persist in your conduct, this court will file proper proceedings for your punishment for contempt of court, criminal libel, and if necessary, civil action for damage for libel and slander. If you do not know what this means, you may consult with your attorney, and he can advise you as to those matters.

I have talked over your cases with you, and attempted to explain matters involved, and have gone further in that regard than I usually do, but I will not enter into any further discussion of them with you in the future, as it does not seem to serve any useful purpose.

I am sending a copy of this letter to your attorney, Mr. Phil Greenan, of Great Falls, Montana, for his information.

Yours truly,

R. M. Hattersley"

Counsel objected to the admission of Moser's exhibits on the ground that while "contemptuous in character" they related to actions long since closed and were irrelevant, etc. The particular act of the relator made the basis for the contempt proceeding before us was the filing in the office of the clerk of court of the writing which appears in the record as "Plaintiff's Exhibit No. 5" which is in the following words:

"Demands on Mr. Monsen Sheriff Pondera Co.

March 9, 1944.

I am demanding a decision in my case of which Judge King defaulted Jan. 7th.

The 9th Judicial Court has been charged with stealing a receipt for $3,000 which I trusted them with of which could have settled my case with.

I have exposed this irregularity to the bar association and the Court should be impeached.

Mr. Pelletier (Court Reporter) has admitted he lost receipt.

I expect protection of this Sheriff's office as any law abiding tax paying citizen has a right to expect.

Clarence L. Moser."

Judge Hattersley testified as to the filing of this document as follows: "On the afternoon of that day [March 9, 1944] Mr. Shepherd [clerk of court] was not feeling well and had gone home. I told him I would look after his office for him, and Mr. Moser personally came into the office then, and handed me this paper plaintiffs exhibit number five which was folded in the form it is now, or approximately so. I didn't look at it. He said, he wanted to file it in court. He didn't say any particular case. I told him Mr. Shepherd was absent, and I was looking after his office for him, and that I would stamp it filed as of that time, and Mr. Shepherd would sign it when he returned the next day as being filed. I fixed the rubber stamping file, so that it had the correct date and stamped it; and then he went out. Of course, I read it after he had left, but this document was presented to me personally while acting for the Clerk, by Mr. Moser." This document, on being filed in the clerk of court's office, was not marked and filed as a document relating to any particular case.

May 6, 1944, the county attorney of Pondera county filed an affidavit in the office of the clerk of court wherein among other things it is averred that the use of the phrase "9th Judicial Court" contained in the paper filed in the clerk of the court's office "by Moser was intended to mean and refer to the Hon. R. M. Hattersley as the Judge of said Court; C. H. Shepherd as the Clerk of said Court; and A. A. Pelletier as the official stenographer or court reporter of said Court;" and that the phrase "the court should be impeached" was intended to refer to the Hon. R. M. Hattersley as judge of said court. It is further alleged that all the things enumerated were done by relator with the intent to unlawfully interfere with the proceedings of a court of justice and to insult Judge Hattersley, etc., and to expose him to contempt.

Thereupon citation was issued, filed and served commanding the relator to appear and show cause on a certain date why he should not be punished for contempt. Counsel for relator interposed both a general and special demurrer to the citation and its supporting affidavit and a motion to dismiss the proceeding. The special demurrer alleges the affidavit to be "un-intelligible" in that it cannot be determined therefrom whether the alleged contemptuous statements concerning Judge Hattersley "refer to any case now pending before" Judge Hattersley's court. The demurrers were overruled and the motion to dismiss denied. After reciting facts in support thereof, judgment was made and entered as mentioned in the beginning. The judgment provided that the relator, on failure to pay the fine imposed, be imprisoned in the county jail in addition to the five days, one day for each two dollars of the fine of $200.

In the contempt proceedings Judge Hattersley presided in his own court, testified in defense of his own acts relating to the contempt, ruled upon the objections made to his own testimony, and likewise to objections made to the admission in evidence of the exhibits mentioned, rendered judgment in the contempt proceedings, and issued his order directing that the judgment of the court be duly executed.

Counsel...