State v. District Court of Fifteenth Judicial Dist. in and for Musselshell County
| Decision Date | 11 April 1917 |
| Docket Number | 4007. |
| Citation | 164 P. 546,53 Mont. 450 |
| Parties | STATE EX REL. MYERSICK v. DISTRICT COURT OF FIFTEENTH JUDICIAL DIST. IN AND FOR MUSSELSHELL COUNTY ET AL. |
| Court | Montana Supreme Court |
Petition for writ of prohibition on the relation of Charles L Myersick against the District Court of the Fifteenth Judicial District in and for Musselshell County and others. Alternative writ quashed, and proceeding dismissed.
Collins Campbell & Wood, of Billings, for relator.
Boarman & Boarman, of Roundup, for respondents.
On December 2, 1916, William Moore executed and delivered to Geo. L. Stephens his certain promissory note for $1,000. Before maturity Stephens endorsed and transferred the note to the First National Bank of Roundup. The bank commenced an action on the note against Moore and Stephens, and caused a writ of attachment to be issued and to be levied upon a stock of wines, liquors, and cigars and certain saloon furnishings and fixtures. This relator made a third party claim to the property attached, but the plaintiff gave to the sheriff a bond of indemnity, and the sheriff retained possession. Upon application of the attaching creditor, the court ordered the sheriff to sell the attached property and deposit the proceeds in court to await judgment. Thereupon relator instituted this proceeding to prohibit the court from taking further steps under the order of sale.
1. The respondent sheriff is not a proper party to this proceeding and must be dismissed. The writ of prohibition, when issued from this court, arrests proceedings of a judicial character only. State ex rel. Scharnikow v. Hogan, 24 Mont 383, 62 P. 583. The sheriff is a ministerial officer and his acts are not subject to control by this writ. If it be a fact that the property levied upon belongs to this relator, his remedy for the wrongful seizure must run against the sheriff. The court below was not responsible for the act of the sheriff in levying the writ.
2. Assuming for the purposes of this proceeding that the relator is a person beneficially interested, though not a party to the action in the court below (Havemeyer v. Superior Court, 84 Cal. 327, 24 P. 121, 10 L. R. A. 627, 18 Am. St. Rep. 192; Cronan v. District Court, 15 Idaho, 184, 96 P. 768), the question presented is: Does the application disclose such a set of circumstances as warrants the relief sought?
The writ of prohibition is an extraordinary judicial writ which issues, not as a matter of right, but only in the sound legal discretion of the court. State ex rel. Lane v. District Court, 51 Mont. 503, 154 P. 200, L. R. A. 1916E, 1079. It is to be used sparingly for the furtherance of justice and to secure order and regularity in the inferior tribunals. It arrests proceedings of a judicial character when such proceedings are without or in excess of jurisdiction (Rev. Codes, § 7227), but it issues only when there is not a plain, speedy and adequate remedy in the ordinary course of law (Rev. Codes, § 7228; State ex rel. Browne v. Booher, 43 Mont. 569, 118 P. 271).
The applicant must therefore assume the burden of showing that the court below is acting without or in excess of jurisdiction, and also that he has no plain, speedy, and adequate remedy in the ordinary course at law. In this instance we think he has failed in both particulars.
The order of the district court directing the sale of attached property prior to judgment is the only proceeding of a judicial character which is attacked. Jurisdiction to order a sale of attached property prior to judgment is specifically conferred upon the court by section 6671, Revised Codes. To invoke that jurisdiction it must be "made to appear satisfactorily to the court or a judge thereof that the interest of the parties to...
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