State v. District Court of Second Judicial Dist.

• Decision Date: 22 June 1904
• Citation: 77 P. 318,30 Mont. 547
• Parties: STATE ex rel. DURAND v. DISTRICT COURT OF SECOND JUDICIAL DIST. et al.
• Court: Montana Supreme Court

77 P. 318

30 Mont. 547

STATE ex rel. DURAND v. DISTRICT COURT OF SECOND JUDICIAL DIST. et al.

Supreme Court of Montana

June 22, 1904

Application by the state, on the relation of Millie Durand, for a writ of prohibition against the Second Judicial District Court for Silver Bow county, Mont., and Hon. E. W. Harney, judge thereof. Dismissed.

McBride & McBride, for relator.

John J McHatton, J. M. Denny, and Geo. F. Shelton, for respondents.

HOLLOWAY J.

On January 15, 1904, Fay A. Durand commenced an action in the district court of Silver Bow county against Millie Durand, Oscar Durand, the Equitable Life Assurance Society, F. T. McBride, and Robert McBride. The defendants Millie Durand and F. T. and Robert McBride appeared and answered on January 22d. On the same day defendant Robert McBride, for himself and for Millie Durand and F. T. McBride filed an affidavit disqualifying Hon. E. W. Harney, judge of the department in which said action was pending, and incorporated in his affidavit of disqualification a motion for change of venue, or, in lieu thereof, a change of judge. This affidavit of disqualification was made pursuant to the provisions of section 180 of the Code of Civil Procedure, as amended by the second extraordinary session of the Eighth Legislative Assembly. On January 29, 1904, the plaintiff had the deposition of defendant Millie Durand taken before a notary public, and on the taking of such deposition Millie Durand was asked to attach to and make a part of her deposition a certain insurance policy and a certain assignment in writing which she had in her possession. This request she refused to comply with, and her deposition showing such refusal was filed in the court, the matter called to the attention of the court, and the plaintiff thereupon moved to strike from the files the separate answer of Millie Durand, for the reason that she had so refused to answer proper and pertinent questions asked in taking her deposition. On February 13, 1904, Robert McBride again filed a disqualifying affidavit, similar to the one filed January 22d. On February 13th the district court, over the objection of counsel for the answering defendants, set the motion to strike the answer of Millie Durand from the files, and the motion of the answering defendants for change of venue or change of judge for hearing on February 15th. On February 15th the motion for change of venue or change of judge was denied, and the hearing on the motion to strike from the files the answer of Millie Durand was continued until February 18th. On February 17th, on the application of Millie Durand, this court issued an alternative writ of prohibition enjoining the district court and Hon. E. W. Harney, judge thereof, from further proceeding in the hearing of said motion of the plaintiff to strike from the files the answer of Millie Durand, or otherwise proceeding in said action, except to arrange the calendar, call in another district judge to try the cause, or change the venue. This writ was made returnable, and the matter was heard and submitted, on February 27, 1904.

In this court it is contended, on behalf of respondent, first, that ...