State v. District Court of Fourth Judicial Dist. in and for Missoula County
| Decision Date | 21 October 1926 |
| Docket Number | 6043. |
| Citation | 250 P. 609,77 Mont. 214 |
| Parties | STATE ex rel. v. DISTRICT COURT OF FOURTH JUDICIAL DIST. in and for MISSOULA COUNTY et al. UNITED STATES FIDELITY & GUARANTY CO. OF BALTIMORE, MD., |
| Court | Montana Supreme Court |
Petition by the State of Montana, on the relation of the United States Fidelity & Guaranty Company of Baltimore, Md., for a writ of supervisory control or other proper writ to the District Court of the Fourth Judicial District in and for the County of Missoula, and Asa L. Duncan, a Judge thereof. Writ denied and proceeding dismissed.
Gunn Rasch & Hall, of Helena, for relator.
Harry H. Parsons, of Missoula, for respondents.
On September 17, 1926, the relator herein filed its verified petition in this court reciting that on April 6, 1923, the clerk of this court issued a remittitur in the case of Comerford v. United States Fidelity & Guaranty Company, which had theretofore, on the 28th day of February, 1921, been decided by this court, and which decision is officially reported in volume 59 Montana Reports, at page 243 (196 P 984), to which at the time of its issuance was attached a copy of the opinion and decision of this court above referred to, for transmission to the district court of Missoula county; that upon receipt of said remittitur the clerk of said district court made an entry in the judgment docket in his office against the original entry of the judgment from which the appeal in said cause was taken, as follows: "Judgment reversed, and case remanded as per remittitur filed April 7, 1923." It is further recited in the petition that on December 1, 1922, the said respondent district judge made an order, which was entered in the minutes of said district court, reading as follows: (Title of Court and Cause.) "Upon motion of J. L. Wallace, Esq., of counsel for plaintiff, the aboveentitled action is dismissed"-and that no judgment or order has been made or entered in said cause in the district court after the issuance and filing of said remittitur or since the entry of the aforesaid order of dismissal. The relator prayed that a writ of supervisory control, or other proper writ, issue out of this court directed to the respondents, requiring and commanding that the order dismissing said cause be rescinded, vacated, and set aside, and requiring and commanding said district court to render a final judgment on the merits in said cause in accordance with the judgment and decision of this court.
Upon the filing and presentation of this petition an order was issued requiring and commanding the said respondents to do and perform the things prayed for in said petition, or that they show cause before this court on September 27, 1926, why they should not do so. On the return day of this writ the respondent district judge appeared by counsel and filed a response admitting all the allegations of the petition, and for further response thereto set up: That while said case of Comerford v. United States Fidelity & Guaranty Company was still pending in this court, and prior to the time the remittitur was issued and transmitted to the clerk of the district court, the said relator, by and through its then attorneys, made an application to respondents asking and requesting that said action be dismissed. That pending said motion, and prior to a hearing thereon, the plaintiff in said action through her attorneys filed in said district court a præcipe signed by them for the dismissal of said action, reading as follows: (Title of Court and Cause.) "To the Clerk of Said Court: Please dismiss the above action on motion of plaintiff. That thereafter and on December 1, 1922, the order of dismissal referred to in the petition was made and entered, and that at the time said entry was made, one of the relator's then attorneys appeared in said court and consented to the making of said order, and that by reason of these facts the relator is estopped from challenging the making thereof. A copy of the motion made by respondent's counsel is attached to and made a part of the return, and from it it appears that it was grounded upon the fact that the cause had been finally determined on the merits against the plaintiff and in favor of the defendant therein, the relator herein.
The response sets forth other matters, but in view of the conclusion at which we have arrived they are deemed immaterial, and it is not necessary to recite them. Upon this response of the district judge the matter was submitted to the court for final determination.
The writ of supervisory control is one to be seldom used, and then only when other writs may not issue and other remedies are inadequate. Unless the petitioner can show in his application that the district court in the action sought to be reviewed has acted so arbitrarily, unlawfully, and with such disregard of his rights as to be tyrannical, and that the remedy by appeal or other constitutional writ is neither plain, speedy, nor adequate, the writ will not issue. Such has been the uniform holding of this court in numerous cases, from State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 P. 395, down to State ex rel. Bonners Ferry Lumber Co. v. District Court, 69 Mont. 436, 222 P. 1050, in which last mentioned case many of our former decisions were cited and analyzed. In State ex rel. Carroll v. District Court, 50 Mont. 428, 147 P. 612, it is said:
The writ of supervisory control is issued only to correct rulings made by the lower court acting within jurisdiction, but erroneously, where there is not an appeal, or the remedy by appeal cannot afford adequate relief, and gross injustice is threatened as the result of such rulings."
From the rule announced in these cases it is clear that in order to authorize a writ of supervisory control to be issued by this court it must in the first instance be shown that the rulings of the lower court were made within jurisdiction. Did the district court...
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