State v. Ayers

• Decision Date: 11 February 1916
• Docket Number: 3799.
• Citation: 155 P. 276,52 Mont. 62
• Parties: STATE EX REL. LINDSEY v. AYERS, DISTRICT COURT JUDGE.
• Court: Montana Supreme Court

155 P. 276

52 Mont. 62

STATE EX REL. LINDSEY v. AYERS, DISTRICT COURT JUDGE.

No. 3799.

Supreme Court of Montana

February 11, 1916

Application for mandamus by the State, on the relation of Theodore Lindsey, against Roy E. Ayers, Judge of the District Court of the Tenth Judicial District in and for the County of Fergus to compel restoration to the files of a bill of exceptions and settle the same. Peremptory writ issued.

B. P Berger, of Lewistown, for relator.

Belden & De Kalb, of Lewistown, for respondent.

HOLLOWAY J.

In an action entitled First National Bank of Miles City v. Theo. Lindsey, tried in the district court of Fergus county resulting in a verdict and judgment for plaintiff, the defendant gave notice of his intention to move for a new trial upon a bill of exceptions thereafter to be prepared. A draft of the proposed bill was served and delivered to the judge for settlement. At the instance of the plaintiff, the proposed bill was stricken from the files and settlement refused November 29, 1915. To the application of the moving party for an alternative writ of mandate, the respondent judge has made return that the order striking the bill has been rescinded and the bill restored to the files, and that he has refused to settle it because it does not contain all the proceedings or all the evidence or the substance of it, and contains a misstatement of facts. These reasons will be treated as additional grounds for the order refusing settlement on November 29, 1915.

We do not concede that the court or judge, by revoking the order of November 25th, after this proceeding was instituted, and making another order refusing settlement for reasons which existed, if at all, when the first order was made, can oust this court of jurisdiction to determine whether this relator is entitled to have his proposed bill settled.

So far as the record discloses, the relator pursued the statute in the preparation, service, and presentation of his proposed bill, and therefore is entitled to have it settled as a matter of right, and settlement may be compelled by mandamus. Montana Ore Pur. Co. v. Lindsay, 25 Mont. 24, 63 P. 715.

An attorney who intentionally presents a false or unfair statement of the court proceedings for settlement as a bill of exceptions merits discipline; but attorneys even are fallible, and of this fact the Legislature took notice in providing for amendments (section 6788, Rev. Codes),...