State v. District Court of First Judicial Dist. in and for Lewis and Clark County

• Decision Date: 01 October 1920
• Docket Number: 4674.
• Citation: 195 P. 549,58 Mont. 316
• Parties: STATE EX REL. CASH v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY ET AL.
• Court: Montana Supreme Court

195 P. 549

58 Mont. 316

STATE EX REL. CASH v. DISTRICT COURT OF FIRST JUDICIAL DIST. IN AND FOR LEWIS AND CLARK COUNTY ET AL.

No. 4674.

Supreme Court of Montana

October 1, 1920

Application by the State, on the relation of William A. Cash for a writ of supervisory control to the District Court of the First Judicial District in and for the County of Lewis and Clark and W. H. Poorman, a Judge thereof. Writ issued.

Park Smith and Hugh Thos. Carter, both of Helena, for relator.

T. B Weir, of Helena, for respondents.

MATTHEWS J.

On application for writ of supervisory control. In June, 1920 there was pending in the district court of Lewis and Clark county an action for divorce, instituted by William A. Cash and in which issue had been joined, each party, plaintiff and defendant, praying for the custody and control of their three minor children. The court had theretofore awarded the custody, pendente lite, of two of the children to the plaintiff and of the four year old daughter, Marjorie Jane Cash, to the defendant, with the restriction that she be kept within the jurisdiction of the court, and not taken from Lewis and Clark county without first giving notice to the court or judge thereof of the intention so to do; said order directed the payment by plaintiff to defendant of the sum of $75 per month for her support and that of said child. On June 29, 1920, defendant applied to the district court, and secured an order permitting her to go to the city of Salt Lake, Utah, and to have the said child with her, on her promise to return with said child for the trial of said cause. Defendant being about to depart with the child, plaintiff secured from this court a writ suspending said order in so far as it permits the removal of said child from the state, and commanding the respondent court to appear and show cause why the order should not be annulled. The return thereto admits the facts as set out above, and the only questions presented to us are as to the propriety of the writ and the authority of the lower court to grant a removal of the child beyond its jurisdiction. No briefs have been filed, nor have counsel on either side submitted authorities on either question suggested.

In our opinion, the facts present a proper case for the intervention of this court. The order complained of is not an appealable order, and, even if it was, the remedy by appeal would be totally inadequate. One of the functions of...