300 P. 235 | Mont. | 1931
In December, 1930, the relators, Musselshell County and Norman M. Moody, its clerk, filed in the district court a petition for a writ of review, directed to the State Board of Equalization, to determine the correctness of certain orders made by the State Board respecting the levy and assessment of taxes against the Morris Development Company, a corporation, on lands lying in Musselshell county. Honorable William L. Ford, Judge of the Fourteenth Judicial District, was duly designated to hear the matter, accepted the call and, in due time, called the matter up; whereupon relators presented their petition to the court and asked that the writ command the State Board to certify its records to the court or show cause why it should not do so. In disposition of the matter the judge, in writing, declared: "It is hereby ordered that the said application be, and the same is hereby, denied and the court and the judge thereof hereby refuses to issue said Writ of Review or an Order to show Cause why such Writ of Review should not issue."
Relators applied to this court for an alternative writ of mandate to compel the district court and the Honorable William L. Ford to assume jurisdiction of the matter and to act in *534 the premises, or to show cause why they should not do so. The application contains the record made by the district court. From the petition for the writ of review we determined that relators made out a prima facie right to the issuance of the writ, and thereupon ordered the issuance of an alternative writ of mandate, returnable on April 11, 1931. The writ was duly issued and served and, upon return day, the respondent court and judge appeared by counsel and moved to quash the writ on the ground of lack of jurisdiction, and, without waiver of the motion, made due return to the writ.
The question presented for determination is whether or not, under these facts and in conformity with the rules governing in this class of cases, we have authority to issue a writ of mandate.
In determining whether action by a court or judge may be compelled by the writ of mandate, the essential questions to be decided are, whether the act sought to be compelled is one "which the law specially enjoins as a duty resulting from an office, trust or station" (sec. 9848, Rev. Codes 1921), and whether there is "a plain, speedy and adequate remedy in the ordinary course of law." (Sec. 9849, Id.) A negative answer to the first question bars the issuance of the writ, and, irrespective of the answer to that question, an affirmative answer to the second, divests the court of authority to issue it. (State ex rel. Breen v.Toole,
Among these tests is the well-established rule that mandamus[1-3] lies to compel action, but not to control discretion (State ex rel. Stuewe v. Hindson,
The reason why this seeming conflict with the general rule is in fact in harmony with that rule is clearly explained in a quotation found in State ex rel. Keane v. Murphy,
As stated by the supreme court of Michigan, "where an inferior court has refused to entertain jurisdiction on a matter preliminary to a hearing on the merits, mandamus is an appropriate remedy; * * * this is not an application to review an order made in the course of a proceeding, but rather for an order compelling the court to act." (Brown v. Pontiac Mining Co.,
These, and many other, cases are cited and comments thereon made in an exhaustive note entitled "Mandamus to compel Court to issue or exercise Jurisdiction where it has erroneously dismissed the Cause or refused to proceed on the Ground of Supposed Lack of Jurisdiction," found in 4 A.L.R., at page 582.
The foregoing rules authorizing the issuance of a writ of mandate to compel a hearing and disposition of a pending case, even though the trial court has, in good faith, determined that the matter is not properly before it and refused such action, are recognized and applied by this court in the following cases:State ex rel. Mathews v. Eddy,
In the case at bar the trial court was merely called upon to determine whether or not the petition filed entitled the relators to a writ requiring the State Board of Equalization to certify its record, in the tax matter described, to that court for review — a purely preliminary matter having nothing to do with a determination of the proceeding on the merits.
No good purpose would be served by reciting herein the allegations of the petition; we have examined them and determined that they present a prima facie right in the petitioners to the issuance of the writ applied for, and, therefore, that the trial court erroneously determined this preliminary matter. It follows that the writ should go unless barred, as contended, by the existence of a right of appeal from the action of Judge Ford.
It is clear that no appeal would lie from the order made, as[4-8] it is neither a judgment nor an appealable order (secs. 9729 and 9731, Rev. Codes 1921); nor would it have been appealable had it contained a positive direction that the proceeding be dismissed. (Pentz v. Corscadden,
On the other hand, if advised that the court was of the opinion that it was without jurisdiction, relators would have been under the necessity of asking the court to make a further order of dismissal, and on that order have judgment of dismissal entered. No such burden rested upon the relators in order to protect their rights; they were entitled to litigate as against real parties to the action and were not called upon to indulge in shadow-boxing.
Even if a judgment had been entered it would not be such a judgment as is in contemplation of the statutes granting the right of appeal. A judgment is "the final determination of the rights of the parties to an action or proceeding" (sec. 9313, Rev. Codes 1921), and "that only is a judgment which is pronounced between the parties to an action upon a matter *539 submitted to the court for decision." (15 R.C.L. 570.) Running all through the judicial definitions of a "judgment" is the idea of the settlement of a controversy between two opposing parties, or a matter properly submitted to a court ex parte.
Where the nature of the action is such that one party seeks to fix a liability upon another, there can be no judgment in the sense that the term is here used, unless the other party is before the court, subject to be bound by the judgment. But if such a judgment as is here suggested was entered and relators then sought to appeal therefrom, on whom would they serve notice of appeal, and who would appear to present the matter to this court? The district judge who made the order? He is not a party to the proceeding, nor would he be a party to the appeal. This anomalous situation is apparent in this proceeding, wherein the attorney for the State Board — the party the court refused to bring into the action — appeared for the respondent court and judge.
If an appeal from a judgment of dismissal should be entertained, the appellate court would be called upon, after reversal, to issue, as a part of the opinion, or following it, a mandate to the trial court to issue the writ for which application was made, or the appeal would be inadequate.
The existence of an inadequate right of appeal is not a bar to the issuance of a writ of mandamus (In re Connaway,
Consequently, the rule has been almost universally adopted that, from a judgment of dismissal for want of jurisdiction, no appeal lies and the only remedy is by mandamus. In State ex rel.Shannon v. Hunter,
Mandamus is the proper remedy and brings the action of the trial court before this court for review. (In re Connaway, above.)
It is ordered that a peremptory writ of mandamus issue, directing the respondents to set aside the order refusing to act in the premises, and to issue the writ of review or an order to show cause why the same should not issue, in accordance with the application made.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES GALEN, FORD and ANGSTMAN concur. *541