State v. First Judicial District Court

• Decision Date: 10 June 1895
• Citation: 40 P. 600,16 Mont. 274
• Parties: STATE ex rel. MUTUAL BENEFIT LIFE INS. CO. v. FIRST JUDICIAL DISTRICT COURT.
• Court: Montana Supreme Court

40 P. 600

16 Mont. 274

STATE ex rel. MUTUAL BENEFIT LIFE INS. CO. v. FIRST JUDICIAL DISTRICT COURT.

Supreme Court of Montana

June 10, 1895

Mandamus on the relation of the Mutual Benefit Life Insurance Company to the district court of the First judicial district in and for the county of Lewis and Clarke, department No. 1. Writ dismissed.

McConnell Clayberg & Gunn, for relator.

A. K. Barbour and J. W. Kinsley, for respondent.

DE WITT, J. (after stating the facts).

The writ of mandamus may be invoked to compel the performance of an act which the law especially enjoins as a duty resulting from an office, trust, or station. Code Civ. Proc. § 566. The writ of mandamus may require the district court to act. We are of opinion that the answer of the court in this case shows that the court did act upon the application for the appointment of a receiver. The demurrer confesses that all the allegations of the answer are true. It is therefore true that the court gave all the parties ample opportunity to introduce oral or other testimony upon the point of whether the mortgaged property was probably insufficient to discharge the mortgage debt. It is true that the parties refused to offer any such testimony. Therefore, all that the court had before it was the affirmation of the complaint that the property was probably insufficient to answer the debt, and the denial of this affirmation by the defendants' answer. Upon these pleadings the court acted, and refused to appoint a receiver. It is of course conceded that by this writ of mandate we are not asked to review the exercise of judgment and discretion of the court. As the record is before us, the writ of mandamus must be dismissed. The answer of the court is a complete defense to the application for the writ. Instead of the court's having refused to act, it did act upon what was before it, to wit, the pleadings, and gave ample opportunity to relator to offer any other matter in support of its application, which the relator refused to do. There have been several points argued by counsel, which we do not think are in the case. Nor do we consider it necessary to express our views as to the opinion of the district court which was filed in denying the application for a receiver. The opinion of the district court is not a finding, nor a part of the judgment. Thorp v. Freed, 1 Mont. 651; Fant v. Tandy, 7 Mont. 443, 17 P. 560; Muller v Buyck, 12 Mont. 356, 30 P. 386; ...