Hubbert v. District Court

171 P. 784 | Mont. | 1918

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In the ease of Masterson et al. v. Hubbert, pending in the district court of Hill county, the trial court, at the instance of the plaintiffs and without notice to defendant, appointed a receiver to take charge of the property in controversy. The defendant moved the court to annul or abrogate the order appointing the receiver and, the motion being denied, applied to this court for a writ of supervisory control.

The remedy sought is an extraordinary one. The writ never [1] issues as a matter of course. It is authorized by the Constitution out of abundance of caution, to prevent a failure of justice by supplying a means for the correction of manifest error committed by the trial court within jurisdiction where there is no other adequate remedy and gross injustice is threatened. (State ex rel. Carroll v. District Court, 50 Mont. 428, 147 Pac. 612.) If the statute provides1 a remedy which will afford the same or equivalent relief, it must be pursued.

The motion to abrogate the order appointing the receiver was [2] made upon the records and files in the case. The only records in the case at that time were the complaint and order of appointment. By section 7099, Revised Codes, the order appointing the receiver is appealable and an appeal would present for consideration the entire record upon which the motion to abrogate was made, and therefore every question raised before the lower court or which may be raised on this application could be raised on the appeal. If the order should be reversed on appeal, the effect would be to blot out the receivership as from the beginning. In other words, the appeal would accomplish the same result as would have been accomplished if the trial court had sustained defendant’s motion and the same result as would now be accomplished if on this application we should direct the lower court to annul its order. The fact that a motion to annul the order of appointment was made and denied does not affect the right to appeal from the original order, and the time within which an appeal from such order may be taken [3] has not expired. It follows that in this instance the statutory remedy is adequate. It is also speedy, for under the rules of this court such appeal is entitled to advancement as of right.

For these reasons this application is denied and these proceedings are dismissed.

Dismissed.

Mr. Chief Justice Brantly and Mr. Justice Sanner concur.