State v. Lay

• Decision Date: 04 May 1931
• Docket Number: 6733.
• Citation: 300 P. 238,89 Mont. 541
• Parties: STATE ex rel. BOLE et al. v. LAY, District Court Clerk, et al.
• Court: Montana Supreme Court

300 P. 238

89 Mont. 541

STATE ex rel. BOLE et al. v. LAY, District Court Clerk, et al.

No. 6733.

Supreme Court of Montana

May 4, 1931

Appeal from District Court, Gallatin County; B. B. Law, Judge.

Mandamus by the State, on the relation of James P. Bole and another against Fred Lay and another, to compel defendants, who were respectively, the Clerk of the District Court of the Ninth Judicial District and the attorney for plaintiff in a certain divorce action, to surrender to relators for inspection the complaint in such divorce action. From an order denying the application for an alternative writ, relators appeal. Motions to dismiss the appeal and to modify a former opinion.

Appeal dismissed, and motions to modify the opinion denied.

Walter Aitken, of Bozeman, for appellants.

W. S Hartman and George Y. Patten, both of Bozeman, for respondents.

ANGSTMAN J.

On August 15, 1929, relators filed application in the district court of Gallatin county for an alternative writ of mandamus directed against the defendants, commanding them to surrender to relators for inspection a certain complaint in a divorce action or to show cause why they should not do so. In general, the petition sets forth that relator Bole is president of the Chronicle Publishing Company, a corporation engaged in publishing a newspaper in Bozeman, Gallatin county, and that relator Walter Aitken is his attorney; that defendant Lay is the clerk of the district court of Gallatin county and the custodian of the records and files in his office; that defendant George D. Pease is an attorney at law engaged in the practice of law at Bozeman; that on August 6, 1929, there was filed in the office of the clerk of the court a certain complaint in a divorce action, entitled Alice B. Overstreet v. Emmett W. Overstreet; that, upon request therefor by relators on August 7th, 8th, and 9th, defendant Lay refused permission to inspect the complaint or to furnish a certified copy thereof, stating that defendant Pease had withdrawn the complaint from his office and still withheld it; that like requests upon defendant Pease were refused; that inspection was desired for the purpose of ascertaining whether the complaint contained matter suitable for publication in the newspaper; and that, by reason of the necessity of bringing mandamus proceedings, relator Bole has incurred costs and attorney's fees for which he asks judgment against defendants.

On May 20, 1930, the court made an order denying the application. The order recites that the Overstreet action was commenced on August 6, 1929; that the complaint was withdrawn by defendant Pease, attorney for plaintiff in the divorce action, under the rules of the court so permitting; that on August 13th, upon application of defendant Pease, the court made a written order suppressing the complaint until consent for publicity should be given by the parties to the divorce action; that, when the application for the alternative writ of mandamus was made, the judge was advised by petitioners that he could take such time as he deemed necessary to advise himself as to the petitioners' legal right to the writ; that on August 19th the divorce action was brought on for hearing, defendant's default having been entered, and a decree of divorce was granted; that thereupon the order suppressing the complaint was vacated, and the clerk of the district court was directed to advise relators that the records were available for their inspection, and that a certified copy of the complaint and other proceedings could then be obtained by them, if they so desired; that petitioners then advised the clerk of the court that they did not wish to inspect the records, and did not desire a certified copy of the complaint. The order concludes with the statement that the application for a writ of mandate directing the clerk of court to permit relators to inspect the records and files in the divorce action "is now denied." This appeal followed.

Defendants filed a motion to dismiss the appeal, for the reason that the order of May 20th is not an appealable order, nor is it a final judgment from which an appeal lies.

The right of appeal exists by virtue of statute only, and, unless the judgment or order appealed from falls fairly within the classification made by statute, the appeal will not lie. Heater v. Boston & Montana Corp., 84 Mont. 500, 277 P. 11; Ringling v. Biering, 83 Mont. 391, 272 P. 688, and cases therein cited.

Subdivisions 2 and 3 of section 9731, Revised Codes 1921, enumerate certain orders from which an appeal may be taken, but do not embrace an order such as we have before us. This being so, no appeal lies from it as such. State ex rel. Allen v Hawkins, 33 Mont. 177, 82 P. 952; Pentz v. Corscadden, 49 Mont. 581, 144 P. 157; State ex rel. Frost v. Barnett, ...