State ex rel. North American Life Ins. Co. of Chicago v. District Court of Tenth Judicial Dist. In and For Fergus County

• Decision Date: 08 October 1934
• Docket Number: 7367.
• Citation: 37 P.2d 329,97 Mont. 523
• Parties: STATE ex rel. NORTH AMERICAN LIFE INS. CO. OF CHICAGO v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.
• Court: Montana Supreme Court

37 P.2d 329

97 Mont. 523

STATE ex rel. NORTH AMERICAN LIFE INS. CO. OF CHICAGO v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.

No. 7367.

Supreme Court of Montana

October 8, 1934

Original proceeding by the North American Life Insurance Company of Chicago, wherein writ of supervisory control was sought against the District Court of the Tenth Judicial District in and for Fergus County and Stanley E. Felt, Presiding Judge thereof. On motion to quash the order and dismiss the proceeding.

Proceeding dismissed.

Wm. M Blackford, of Lewistown, for relator.

Belden & DeKalb, of Lewistown, for respondents.

STEWART Justice.

This is an original proceeding wherein a writ of supervisory control or other appropriate writ, is sought directed to the district court of Fergus county and Stanley E. Felt, presiding judge thereof. An order to show cause was issued on the filing of the verified petition, and the cause came on for hearing and argument on motion to quash the order and dismiss the proceeding.

It appears that on the 19th day of December, 1932, relator secured a judgment in the district court of Fergus county against the town of Moore in the sum of $13,008.75, and that no appeal was taken therefrom; that on December 31, 1932 relator obtained from the clerk of the district court a certificate showing the amount of the judgment and the date of its entry, together with a certified copy of the judgment that on January 9, 1933, the certificate and the copy of the judgment were served upon the officers of the town of Moore; that on August 7, 1933, the town council of Moore passed an ordinance levying a tax of fifty mills for the tax year of 1933 to provide for the partial payment of the judgment; that in due process of law the sum of $1,675.46 was collected and paid on the judgment, and that there now remains due and payable thereon the sum of $12,488.18, with interest at 6 per cent. per annum from the 3d day of July, 1934; that subsequent to the last-named date there was submitted to a meeting of the town council a request by the attorney for relator that a levy of 75 mills be made on the taxable property in the town for the year 1934, and, when collected, that the proceeds be applied toward the payment of the judgment, but that the town council, without any reasonable cause or excuse, failed and refused to order or make any levy whatever for that purpose, and still fails and refuses, notwithstanding the injunctive provisions of section 5084, Revised Codes of 1921, requiring it to make such levy.

The affidavit sets out that there are insufficient funds in the general fund of the town of Moore with which to pay the judgment, or any part thereof, and that there is no money of the town which may or can be applied toward the payment of the judgment, and that there will be none without the levy, that the taxable property in the town of Moore for the year 1934 amounts to the sum of $61,432, and that the refusal of the council to make the levy has deprived relator of the means of obtaining payment of its judgment, and that relator has no plain, speedy, or adequate remedy in the ordinary course of law.

Relator instituted mandamus proceedings in the district court, praying that a peremptory writ of mandate issue directed to the mayor and council of the town of Moore, commanding them to make a levy of not less than 75 mills on the taxable property of the town for the year 1934, the proceeds to be applied to the payment of the judgment. An alternative writ was granted by that court, and the matter came to a hearing on a motion to quash, filed by the respondents. The motion was based upon the grounds that the affidavit failed to state facts sufficient to warrant the issuance of the alternative writ of mandate; that the respondents in the mandamus proceeding did not have the right, power, or authority to make any levy for the payment of the judgment on account thereof; that the issuance of the writ of mandate would subserve no purpose, and would operate to impede the orderly progress of the tax extensions in the county clerk's office, and would entail great hardship and embarrassment upon the officers; and that the demand for a levy of taxes for the year 1934 was too late and rightfully refused, as the town council had lost jurisdiction to make such levy. On September 22, 1934, the district court sustained the motion to quash on the grounds and for the reason that the town of Moore had it within its discretion to fund the indebtedness represented by the judgment of relator under the terms of section 5085, Revised Codes of 1921. Relator then obtained from this court the alternative writ mentioned above requiring the respondent court and judge to set aside its order and issue a peremptory writ of mandamus against the mayor and town council, commanding them to make a special levy of 75 mills and apply the proceeds upon the judgment.

In this case, the application for the writ of supervisory control must be viewed as in the nature of a summary appeal. State ex rel. Rubin v. District Court, 62 Mont. 60, 203 P. 860; State ex rel. Peel v. District Court, 59 Mont. 505, 197 P. 741. It follows that, if the decision of the trial court was correct in any view of the matter, this court will affirm that decision, regardless of the reasons given therefor as expressed by the trial court. Porter v. Plymouth Gold Min. Co., 29 Mont. 347, 74 P. 938, 101 Am. St. Rep. 569; O'Hanlon v. Ruby Gulch Min. Co., 48 Mont. 65, 135 P. 913.

The matter submitted must be determined by a construction and the application of the provisions of two sections of the statutes of Montana. Sections 5084, 5085, Rev. Codes 1921. These sections read as follows:

"5084. On the certificate of a justice of the peace or the clerk of the court in which any judgment is rendered, showing the amount of the judgment and the date of its entry, the council must, by ordinance, direct that

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