State ex rel. Redle v. District Court in and for Missoula County

• Decision Date: 27 June 1936
• Docket Number: 7597.
• Citation: 59 P.2d 58,102 Mont. 541
• Parties: STATE ex rel. REDLE v. DISTRICT COURT IN AND FOR MISSOULA COUNTY, et al.
• Court: Montana Supreme Court

59 P.2d 58

102 Mont. 541

STATE ex rel. REDLE v. DISTRICT COURT IN AND FOR MISSOULA COUNTY, et al.

No. 7597.

Supreme Court of Montana

June 27, 1936

Original prohibition proceeding by the State of Montana, on the relation of Joseph Redle, against the District Court in and for Missoula County, and another.

Writ issued.

H. R Boden, of Missoula, for relator.

Thomas N. Marlowe, of Missoula, for respondents.

MATTHEWS Justice.

On June 9, 1936, upon the sworn statement of Joseph Redle, this court issued an order to the district court of Missoula county and Honorable Albert Besancon, one of the judges thereof, to show cause on June 16 why they should not be perpetually prohibited from proceeding further in cause No. 11960 in that court, wherein this relator was plaintiff and Mrs. Maud Creed was defendant. From the petition, exhibiting the judgment roll in that cause, it appears that the relator commenced an action for debt against Mrs. Creed on November 18, 1931, and on that day the sheriff of Missoula county made return on the summons, showing service thereof and a copy of the complaint on the defendant personally.

Nothing further was done in the action until May 17, 1935, when the plaintiff caused the default of the defendant to be entered introduced evidence and secured a default judgment for the sum of $371. Execution was issued and the sheriff levied upon and advertised for sale certain real estate belonging to the defendant. On the day fixed the sheriff sold the property to the plaintiff for an amount equal to the judgment and all costs incurred, and returned the writ satisfied in full.

On October 7, 1935, the defendant gave notice of motion to set aside the default and permit her to answer, with her affidavit of merits. This motion came on for hearing on evidence tending to dispute the sheriff's return showing service, and thereupon the court entered its order vacating the judgment and the default and permitting defendant to file her answer.

On the record showing the foregoing facts we issued the order to show cause, which was duly served, and in response to it the respondents appeared by counsel and filed a motion to quash and a return to the writ. The return shows that, after the issuance of the order to show cause and before the date for hearing thereon, there was recorded in Missoula county relator's certificate of sale showing that it was assigned on June 12, 1935, to relator's attorney, and a sheriff's deed to the property executed to the attorney on June 11, 1936. The return declares that "on that account an appropriate action in equity has been instituted *** to set aside the judgment and sale, and which, when tried, will effectually and finally determine the rights of all parties interested in said controversy, and because thereof respondents have no intention to, and do not intend to, and specifically deny that they intend to proceed with a new trial in said cause No. 11960."

It would seem that, if the court and counsel for the defendant, Mrs. Creed, intended to abandon the original proceeding on account of the changed conditions recited, the order annulling the judgment, whether right or wrong, should have been recalled. The suit in equity to set aside a judgment which has no existence of record would seem to place all parties in a somewhat anomalous position, and it would seem that, for the benefit of all parties concerned, this court should not place the parties in the position in which they were at the time the order annulling the judgment was made, if it can be done in this proceeding.

The first assault upon the proceeding here is that the order attacked is a special order made after judgment, and, therefore, an appeal lies under section 9732, Revised Codes, as amended by Laws 1925, c. 39,§ 1, barring relief by writ of prohibition. "A remedy by appeal does not necessarily defeat the right to relief by prohibition;" the application is made to the sound discretion of the court, and, where it appears that the respondent court could not render a valid judgment because of lack of jurisdiction, the writ should issue to end litigation and save needless expense. State ex rel. Examining & Trial Board v. Jackson, 58 Mont. 90, 190 P. 295, 298.

It is next urged that the writ should not issue because the application is by petition instead of on affidavit. It is true that the statute provides that the writ "is issued upon affidavit on the application of the person beneficially interested." Section 9862, Rev.Codes. An "affidavit" is defined as "a written declaration under oath, made without notice to the adverse party." Section 10632, Id. Under this and similar statutory definitions, a verified petition is equivalent to, and can be used as, an affidavit in proceedings to be instituted on affidavit (2 C.J. 318; State ex rel. Victor Boom Co. v. Peterson, 29 Wash 571, 70 P. 71 [habeas corpus]; Golden Canal Co. v. Bright, 8 Colo. 144, 6 P. 142 [mandate]; State ex rel. Burton v. Missouri & Kansas Tel. Co., 77 Kan. 774, 95 P. 391 [...