State ex rel. Odenwald v. District Court of Tenth Judicial Dist. in and for Fergus County

• Decision Date: 24 October 1934
• Docket Number: 7373.
• Citation: 38 P.2d 269,98 Mont. 1
• Parties: STATE ex rel. ODENWALD v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.
• Court: Montana Supreme Court

38 P.2d 269

98 Mont. 1

STATE ex rel. ODENWALD v. DISTRICT COURT OF TENTH JUDICIAL DIST. IN AND FOR FERGUS COUNTY et al.

No. 7373.

Supreme Court of Montana

October 24, 1934

Application for writ of supervisory control by the State, on the relation of Joseph Odenwald, against the District Court of the Tenth Judicial District in and for Fergus County and Hon. O. F Goddard, Judge presiding, wherein respondents moved to quash the alternative writ and dismiss proceedings.

Motion overruled, and writ issued.

George E. Hurd, of Great Falls, and C. W. Robison, of Lewistown, for relator.

E. K Cheadle and Merle C. Groene, both of Lewistown, and John G Brown and L. V. Ketter, both of Helena, for respondents.

MATTHEWS Justice.

Application for writ of supervisory control by the state, on the relation of Joseph Odenwald, against the district court of the Tenth judicial district in and for Fergus county, and Hon. O. F. Goddard, Judge presiding therein.

This proceeding was instituted for the correction of alleged manifest error committed by the trial court within jurisdiction, and it is alleged that the remedy by appeal cannot afford adequate relief, that there is no other adequate remedy, and gross injustice is threatened as a result of the ruling.

On May 31, 1934, one E. O. Busby filed a verified accusation against the three county commissioners of Fergus county jointly, charging them with having willfully refused and neglected to perform their official duties in the management, operation, and care of the county poor farm and personal property thereon. He prayed for their removal from office. At the same time Busby filed separate accusations against each of the commissioners, each of which contains sixteen counts charging willful and corrupt collection of illegal fees and salary for the performance of alleged official services. Removal from office was prayed.

Citations were issued and issue joined by answers. The four proceedings came on regularly for hearing on July 7, 1934, before Hon. O. F. Goddard, presiding in the stead of Judge E. J. Baker, who was ill. George E. Hurd, Esq., counsel for relator who was in charge of the proceedings and had prepared the matters for trial, was then confined in a hospital from which he would not be released for thirty days; the forty-day limit for proceeding to trial (section 11702, Rev. Codes 1921) was about to expire. For these reasons co-counsel moved the dismissal of the actions, and, over the objections of defendants, this motion was granted, and the four proceedings were dismissed "without prejudice."

On September 22, 1934, this relator filed his joint and several accusations against the commissioners, which accusations are identical with those made by Busby, except that to each of the individual charges are added two new counts covering the months succeeding the former charges. Again citations were issued. The defendants answered the charges and, in addition, entered a plea in bar to the joint accusation and to the sixteen counts in each of the separate accusations found in the Busby charges, on the ground that the dismissal of the Busby proceedings constituted a bar to further prosecution under the provisions of section 12229 of the Revised Codes of 1921, as each of the matters "was to be tried as an indictment for a misdemeanor." These matters were met by reply.

The four proceedings came on for hearing before Judge Goddard on October 3, 1934, at which time a continuance was had until October 10 to enable the court to determine the question presented on the pleas in bar on briefs to be filed. On October 9, 1934, Judge Goddard made and had entered an order applying to each of the proceedings, sustaining the pleas in bar, that the proceedings be dismissed and that the defendants have judgment for costs. In this order the court declares that the accusations were "word for word the same" as those made by Busby, "with the exception of two additional accusations"; that the former cases "were not prosecuted or tried within forty days prescribed by the statute, but were, on motion *** dismissed without prejudice against the protest of the defendants."

Thereupon the relator applied to this court for an order vacating and setting aside Judge Goddard's order and any judgment entered or which might be entered thereafter in the proceedings. An alternative writ was issued commanding the annulment of the order, or that the trial court and judge show cause on October 19, 1934, why they have not done so.

In response to the alternative writ, the respondents filed herein a motion to quash on the ground that the relator does not state facts sufficient to entitle him to the relief sought, and, without waiving their motion, answered. The answer set up the fact that judgments have been entered, on the order, dismissing the proceedings. On the motion, the respondents argue that the writ does not lie because an appeal lies from the judgment, and the affidavit and application do not show "exigency."

Speaking of the writ of supervisory control, this court has said: "It has its own appropriate functions, and, without undertaking to define particularly what these functions are, we think one of them is to enable this court to control the course of litigation in the inferior courts where these courts are proceeding within the jurisdiction, but by a mistake of law, or willful disregard of it, are doing a gross injustice, and there is no appeal, or the remedy by appeal is inadequate. Under such circumstances, the case being exigent, no relief could be granted under the other powers of this court, and a denial of a speedy remedy would be tantamount to a denial of justice." State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 P. 395, 400.

It is true that an appeal lies from the judgments entered, but this fact does not render the writ here considered inapplicable unless the remedy by appeal is a speedy and adequate remedy. State ex rel. Spinazza v. District Court, 83 Mont. 511, 273 P. 638. An exigency which will render the ordinary remedy by appeal inadequate may be defined as something arising suddenly out of the current of events; an event or combination of circumstances calling for immediate action or remedy (United States v. Atlantic Coast Line Co. [D. C.] 224 F. 160); where something helpful needs to be done at once, yet not so pressing as an emergency (De Angelis v. Laino, 141 Misc. 518, 252 N.Y.S. 871).

Here the law (section 11702) requires that a speedy trial of the charges be had, and to that end declares that, on the filing of such charges, the officers be cited to appear not more than ten nor less than five days after the accusation is filed, and that "on that day, or some other subsequent day not more than forty days from the date on which the accusation was presented," the court must proceed "to hearing, in a summary manner, or trial, upon the accusation and evidence offered in support of the same."

The Odenwald accusations were set down for a speedy hearing or trial, but no hearing or trial "upon the accusation and the evidence" was had; instead, the hearing was continued until October 10, in order to give the trial court time to determine the preliminary question as to whether or not the relator was entitled to have his accusations heard or the defendants should be required to stand trial thereon. That the disposition of the questions raised by a plea in bar to a criminal prosecution--which this plea must be if available to the defendants at all--is but a preliminary matter in nowise connected with the trial, is clearly demonstrated by the rules governing such a plea, to wit, that a special plea in bar must be entered before the defendant pleads on the merits, and, if it is not, it may be disregarded unless the court in its discretion permits the plea of not guilty to be withdrawn (Commonwealth v. Blake, 12 Allen [Mass.] 188; George v. State, 59 Neb. 163, 80 N.W. 486); and, where the issue raised by the plea and the state's demurrer or reply thereto is decided against the defendant, he may then plead over and have a trial on his plea of not guilty (Fisher v. State, 46 Ala. 717; Harding v. State, 22 Ark. 210; State v. Reiman, 3 Pennewill (Del.) 73, 50 A. 268; State v. Allen, 91 Me. 258, 39 A. 994). For further discussion, see 16 C.J. 414, 415.

Before the day set for the hearing or trial "upon the accusation and evidence" to be "offered in support of" the accusation, i. e., October 10, the court ordered the proceedings dismissed; consequently, the hearing or trial required to be had, or begun, within forty days from the presentation of the accusation, was never started. Under the statute the hearing must be commenced on the merits within forty days after September 22, or by November 1, 1934.

This court will take judicial notice of the statute and of its rules, and must conclude that an appeal from the order and judgments entered could not be perfected, presented, and determined between October 10 and November 1, and relator's right to have his accusations heard within the limit of time prescribed by the statute would be lost by resort to the remedy by appeal. Thus the application here reciting the facts and the statute under which the application is made, presents an "exigency" in this action in which the public is interested, calling for summary action by this court, and demonstrates that the remedy by appeal is wholly inadequate, thus warranting action by this court. State ex rel. Philbrick v. District Court, 58 Mont. 376, 193 P. 59; State ex rel. Bonners Ferry Lumber Co. v. District Court, 69 Mont. 436, 222 P. 1050; State ex rel. Larsen v. District Court, 78 Mont. 435, 254 P. 414; State ex rel. Whorley v. District Court, 88 Mont. 290, 292 P. 904; State ex rel. Thelen v....