157 P. 573 | Mont. | 1916
delivered the opinion of the court.
Action to quiet title to certain land described in the complaint and situate in Cascade county. The action was brought in that county. The appeal is by the defendants from a judgment rendered on the pleadings under these circumstances:
In their amended answer, besides denying plaintiff's title, etc., and setting forth the nature of their adverse claim, defendants also alleged in abatement of the action that another action involving the same cause of action as that involved herein, and’ to which the parties hereto were the same, had theretofore been decided by the court and was pending in the supreme court on appeal. Counsel for plaintiff failed to tender issue by reply, but had the cause set down for hearing, assuming that the allegations in the answer were not sufficient to present a triable issue. The hearing was had on January 5, 1914; counsel for defendants not appearing. Why he did not is not here im-' portant. On January 13, Judge Ewing, before whom the hearing was had, made an order postponing the final hearing and disposition of the cause “until after said appeal is finally determined by the said supreme court.” The cause referred to in the answer and by the judge as pending on appeal is In re Estate of Peterson, reported in 49 Mont. 96, Ann. Cas. 1916A, 716, 140 Pac. 237, and decided on April 1, 1914. In the meantime, and on April 27, 1914, Judges Leslie and Ewing, who regularly preside in the eighth judicial district, which includes Cascade county, deeming themselves disqualified to try the action, made an order so declaring, and inviting Judge Ayers, of the tenth district, to try it. Judge Ayers accepted the invitation, but, so far as the record discloses, did not at any time go into Cascade county to assume jurisdiction to make disposition of the action. On November 2, 1914, upon five days’ notice to counsel for de
Counsel discuss in their briefs the correctness of the action of Judge Ayers on the merits of the motion. We incline to the opinion that the answer by its denials presented an issue of fact, and that Judge Ayers for this reason erred in sustaining the motion. Furthermore, though the ease of In re Peterson had theretofore been disposed of, the record in this case fails to disclose that fact. But we shall not stop to consider the questions presented in this behalf, because, in our opinion, Judge Ayers was wholly without power to try and dispose of the motion at chambers in Fergus county.
Section 6314 of the Revised Codes defines the powers of á judge at chambers. It declares: “The judge of the district court may at chambers issue, hear and determine writs of mandamus, quo warranto, certiorari, prohibition, injunction and other original and remedial writs, and also all writs of habeas corpus on petition by, or on behalf of, any person held in actual custody in his district, and grant all orders and writs which are usually granted in the first instance upon an ex parte application, and, at chambers, hear and dispose of such orders and’ writs; and may also, at chambers, make any order, issue any process, and hear and determine any matter necessary in the exercise of his powers in matters of probate, or in any action or proceeding provided by law. If a jury is necessary the judge may open court and obtain a jury as in other cases.” This provision was considered in State ex rel. Mannix v. District Court, 51 Mont. 310, 152 Pac. 753. The question what is the extent
Counsel for plaintiff insists that the defendants cannot main-
The judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.