State ex rel. Tague v. District Court of First Judicial Dist. in and for Broadwater County

• Decision Date: 09 July 1935
• Docket Number: 7457.
• Citation: 47 P.2d 649,100 Mont. 383
• Parties: STATE ex rel. TAGUE v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR BROADWATER COUNTY et al.
• Court: Montana Supreme Court

47 P.2d 649

100 Mont. 383

STATE ex rel. TAGUE v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR BROADWATER COUNTY et al.

No. 7457.

Supreme Court of Montana

July 9, 1935

Rehearing Denied July 11, 1935.

Original proceeding for writ of supervisory control by the State, on the relation of Alfred Tague, against the District Court of the First Judicial District of the State of Montana, in and for Broadwater County, and George W. Padbury, Jr., as judge thereof.

Writ denied.

J Miller Smith, Paul W. Smith, and David R. Smith, all of Helena, for relator.

Fred W Schmitz, of Townsend, for respondents.

STEWART Justice.

Supervisory control directed to the district court of Broadwater county and the Honorable George W. Padbury, Jr., as judge thereof. The relator, Alfred Tague, was adjudged guilty of contempt by the district court. He seeks to have the judgment annulled vacated, and set aside.

In 1881 the district court of Meagher county entered a decree adjudicating certain of the water rights in Duck creek, now in Broadwater county. Pursuant thereto an injunction was issued whereby one John G. Pickering, a party to the action, together with his successors and assigns, was enjoined and restrained from interfering with the other rights adjudicated by the decree. Pickering at that time occupied what was called the Pickering ranch, now known as the Runnymede ranch. He was enjoined from using any of the waters of Duck creek upon that ranch until all prior rights under the decree were satisfied. The relator now occupies the Runnymede ranch.

On May 9, 1935, J. S. Reynolds, water commissioner on Duck creek, filed an affidavit in the respondent court. He set out the facts as outlined above with reference to the decree of 1881, and alleged that relator was a successor in interest of Pickering in the lands occupied by him at the date of the decree; that relator, as such successor, was bound by the terms of the decree and the injunction issued pursuant thereto; that under the terms of the decree relator had no decreed right to the waters of the stream; that relator had been fully advised of the legal status of the water rights in Duck creek, and that he had knowledge of the rights granted in the decree and of the injunction; and that, notwithstanding such knowledge, he, on May 7, 1935, "willfully and without right and authority, and contrary to the provisions of said decree, and contrary to law, did take, and does now take from said creek by means of a dam and ditch, approximately the full flow of said creek of about 200 inches, leaving the prior rights in said creek unsatisfied." The affidavit alleges that control of the rights under the decree is now under the jurisdiction of the respondent district court; that by virtue of the decree John G. Plymale and Gray P. Keene have the rightful use to the first 271 inches of the waters of Duck creek; that relator has, in violation of the decree and in open defiance of the water commissioner, deprived them of the use of the water to which they are entitled; and that such taking of water was contrary to the decree and in defiance of the respondent court, and in contempt thereof. The affidavit concluded with a request that the court issue an order requiring relator to appear and show cause why he should not be punished for contempt.

On May 10, 1935, the court issued an order to show cause. Relator then filed a counter affidavit and answer, wherein he denied that the decree of 1881 adjudicated all the water rights of Duck creek or any of the waters thereof; that he was a successor in interest of Pickering; that Pickering ever owned the ranch now owned by relator, or that relator was bound by the 1881 decree. On May 14th relator filed an affidavit of disqualification of Judge Padbury, on the grounds of bias or prejudice. On May 15th, after issue had been joined, the matter came on for hearing before Judge Padbury. At that time relator objected to any further proceeding in the matter, on the ground that Judge Padbury had been disqualified by affidavit and was, therefore, without jurisdiction to hear the cause. The objection was overruled and the affidavit of disqualification was ordered stricken from the files. The court proceeded to hear evidence.

Reynolds, the water commissioner, testified generally to the facts alleged in his affidavit--to the effect that relator had taken the water from Duck creek in spite of his demand that he refrain from so doing. For the purpose of showing that relator was a successor in interest to John G. Pickering and therefore bound by the decree of 1881, Reynolds introduced in evidence, over relator's objection, a judgment made and entered by respondent court on June 19, 1934. This judgment was one rendered in a contempt proceeding between the same parties and over the same subject-matter. The relator was therein adjudged guilty of contempt and punished therefor by fine.

Tague testified that he was not a successor of Pickering; that his own predecessors in interest were not parties to the 1881 suit, wherein the decree was entered; that he had an undecreed water right on Duck creek; that his ranch, or farm, "is the first ranch that had a right, the first ditch ever taken out on Duck creek."

At the close of the evidence, the respondent court made and caused to be entered judgment finding relator guilty of contempt, and as punishment therefor imposed a sentence of fine and imprisonment. Relator thereupon made application to this court for a writ of supervisory control to have the judgment annulled and set aside. He also asked to have the judgment entered in the 1934 contempt proceeding annulled.

At the outset relator urges error upon the trial court's refusal to be disqualified. There is no merit in this contention. Chapter 93, Laws of 1927, which provides for the disqualification of judges and the filing of affidavits therefor, is not applicable to contempt proceedings. Brindjonc v. Brindjonc, 96 Mont. 481, 31 P.2d 725, and cases there cited.

The other assignments urged all go to the question of whether the court erred in adjudging relator guilty of contempt. They may, therefore, be discussed together.

By section 9921, Revised Codes 1921, it is declared that "the judgment and orders of the court or judge, made in cases of contempt, are final and conclusive, and there is no appeal; but the action of a district court or judge can be reviewed on a writ of certiorari by the supreme court." See State ex rel. Murphy v. District Court, 99 Mont 209, 41 P.2d 1113. "The writ cannot be used to correct errors committed in the exercise of jurisdiction. State ex rel. King v. District Court, 24 Mont. 494, 498, 62 P. 820. *** If the charges are...