State v. District Court of Silver Bow County
| Decision Date | 20 November 1911 |
| Parties | STATE ex rel. MACKEL v. DISTRICT COURT OF SILVER BOW COUNTY et al. |
| Court | Montana Supreme Court |
Application for writ of prohibition of State of Montana out of relation of Alexander Mackel against the District Court of the Second Judicial District in and for the County of Silver Bow, and Hon. George B. Winston, Presiding Judge. Dismissed.
Alexander Mackel, pro se. Jesse B. Roote, for respondents.
Application for a writ of prohibition. Relator's affidavit sets forth that, in an action for separate maintenance heretofore instituted against him by his wife in Silver Bow county, the court by its judgment ordered him to pay her the sum of $80 per month during each and every calendar month, commencing with the month of August, 1911. Thereafter the court issued an order to show cause, returnable on October 28, 1911, why he should not be punished for contempt of court for not paying the monthly alimony aforesaid. It is alleged in the affidavit that the respondent court and judge are without jurisdiction to proceed and never acquired jurisdiction, for "that there never was contained in any of the pleadings in said action an allegation to the effect that plaintiff had been a resident of the state for one year next preceding the commencement of the action." The application of the relator will be denied for reasons analogous to those given by this court in the case of State ex rel. Browne v Booher, Police Judge, etc., 118 P. 271, decided on October 21, 1911. He should first present his contention that the judgment is void to the district court. That court has given him an opportunity to show cause, and he must avail himself of it. The presumption is that the court will correctly decide the point, that is to say, if the judgment is void, the court will so determine; in which event the relator will not be aggrieved. That court undoubtedly has jurisdiction to determine the very question which the relator seeks to present to this court. For aught we know, also, he may be able to show a valid excuse for his failure to comply with the judgment, if in fact he has not complied therewith or he may show a full compliance. If the court decides in his favor, he will assuredly not complain. On the other hand, if the order below is adverse to him (a result we shall not anticipate), he may invoke the power of this court to afford relief therefrom.
The authorities cited by...
To continue reading
Request your trial