State v. District Court of Second Judicial Dist. of Montana, Silver Bow County
| Decision Date | 24 October 1908 |
| Parties | STATE ex rel. McLEAN, v. DISTRICT COURT OF SECOND JUDICIAL DIST. OF MONTANA, SILVER BOW COUNTY et al. |
| Court | Montana Supreme Court |
Supervisory control by the state, on the relation of Winnifred A. McLean against the district court of the Second judicial district of state of Montana in Silver Bow county and the judges thereof to annul a judgment of the district court. Judgment annulled.
Breen & Hogevoll, for respondents.
Supervisory control. The purpose of this application is to procure an order of this court annulling a judgment of the district court of Silver Bow county, made and entered on July 6, 1908 whereby the relatrix was sentenced to pay a fine of $100, and to undergo imprisonment for two days for an alleged contempt.
The affidavit embodying the charge made in the district court alleges, in substance, that the relatrix had willfully and intentionally failed and refused to obey an order made and entered in that court on May 25, 1908, by which she had been required to deposit with the clerk certain money which had been paid to her by the clerk under a judgment made and entered on May 7, 1908, and which had thereafter, on May 25 1908, been vacated and set aside. A brief history of the proceedings leading up to the judgment complained of is the following: In January, 1908, the relatrix brought an action against the New York Life Insurance Company to recover a judgment upon two insurance policies effected by the company upon the life of one Patrick H. McGuire, in which the relatrix was named as the beneficiary. The company admitted the death of McGuire and its liability to pay, but presented an application to the court, from which it appeared that an action had been instituted against it by one Hannah Moran, in her own right as heir of McGuire and as administratrix upon his estate, in the court of common pleas in the county of Lackawanna, Pa., claiming title to the amount due on the policies, and asked for an order permitting it to pay the amount into court, and substituting Hannah Moran in both her capacities as defendant in its stead. The order was made, and the money, $1,021.32, was paid to the clerk. Thereafter such proceedings were had in the cause that on May 7, 1908, a judgment was rendered and entered therein declaring relatrix entitled to the money and directing it to be paid to her which was done. On the following day counsel for Hannah Moran moved the court to vacate and set aside this judgment on grounds not necessary to detail here, and for an order directing the relatrix to return to the clerk the amount so paid to her. Notice of this motion was served upon Messrs. Davis & Rosier, who had been acting as attorneys for relatrix in the action on the policies. Relatrix had no personal notice of its pendency until May 11th. A hearing was had upon the motion on May 13th, but it was not determined until May 25th, and then with the result that the judgment was vacated and the relatrix directed to deposit the money with the clerk. Having failed to do this, she was charged with a willful and intentional violation of the order, as stated, and, upon a hearing upon an order to show cause, was convicted.
The contention now made is that the evidence is insufficient to sustain the conviction. The only evidence heard was that of the relatrix herself, and her statement is not controverted. She earns a livelihood by conducting a boarding house in the city of Butte, incidentally furnishing lodging for two or three of her boarders. So far as appears, she has no real nor personal property of any value. During the preceding winter she could not meet her current accounts, and thus became indebted to various persons for fuel and other supplies to the amount of about $1,000. She had promised to pay certain of these creditors out of the money she expected to receive from the insurance company, having in one or two instances secured additional credit on the faith of such a promise. When the judgment was entered in her favor and the money was paid to her on May 7th, she settled the charge of her attorneys for their services in the case and for costs advanced by them, amounting to $311.30, leaving a balance in her hands of $710, and then proceeded at once to keep good her promise to her other creditors. On the following day she paid out to various creditors $628.01, and on the morning of the 11th to another creditor $210, the sum total of these payments including moneys she had from collections made from her boarders. These payments were all made before she had knowledge of any proceedings by counsel for Hannah Moran to have the judgment vacated. It further appeared that she had no money at the time she was ordered...
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