26 Mont. 372 | Mont. | 1902
Lead Opinion
delivered the opinion of the court.
Application for mandamus. In a cause pending in the district court of Silver Bow county, entitled “Miles Finlen v. F. Aug. Heinze et al.," after a trial by the court without a jury, finding's of fact and conclusions of law were made on June 18, 1901, in favor of the defendants. Judgment was entered thereon July 11, 1901. Within the time allowed by the statute, and in conformity with its requirements, the plaintiff prepared his motion for a new trial, basing the same upon a statement of the case and upon affidavits. The statement was properly settled and filed with the clerk. • The affidavits were also filed
Whatever rights the relator may have in the premises, they cannot be considered in this proceeding. The command of the alternative writ was that the court and its judge should proceed to determine the motion, or show cause why they had not done so. Under the mandate of the writ, the court and its judge were left to determine the motion in just the same way as it might have been determined if the writ had not been issued. The solo office of the writ was to1 expedite the determination of the motion if it appeared that a decision upon it had been unnecessarily delayed, and not to control the district court in the exercise of its discretion in the premises. In striking out the affidavits, the court exercised a discretion with which we cannot interfere by mandamus. To illustrate: If the motion had been disposed of before this application was made, we would have had no power to compel by mandamus a restoration of the affidavits to the files. The district court has the power to determine what is scandalous matter in a pleading, affidavit, or other paper put upon the files, and to order the same to be stricken out, to the end that the files may be free from objectionable or scandalous matter. That court, however, has mr power to prevent the party claiming to be aggrieved by such an order from having the same reviewed in an appropriate way, and to this end should settle a bill of exceptions embodying the matter, so that the order may be properly reviewed by this court. Otherwise, should that court have fallen into error and determined
There was no evidence offered at the hearing tending to show "that the disposition of the motion had been unnecessarily delayed. The burden was upon the relator to show such fact, if it existed. This situation of affairs presented at the hearing necessarily requires this proceeding to; be dismissed. This court cannot- presume that the district court., or its presiding judge, has willfully or unnecessarily delayed or refused to determine a matter submitted, merely because there has been a lapse of 45 days between the date of the submission and the date of the application to- this court. Whether or l.ot sncli intervening delay was unnecessary would depend largely upon the volume of business before the court and the time at its disposal to devote to it.
Nor may we say what course the relator should pursue of what remedy he should adopt, in order to preserve his rights in the premises.
It was urged at the hearing that- the district judge, at the time the motion was determined in that court, refused to settle a proper bill of exceptions for the plaintiff in order that he might present to this court for review the order striking out the affidavits. Whether or not this is a fact is not now a pertinent inquiry. This court holds that an order striking out a statement on motion for a new trial is an appealable order. (Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106.) The supreme court of California follows the same rule (Symons v. Bunnell, 101 Cal. 223, 35 Pac. 770), the theory being that such an order is a special order after final judgment, with
It was plausibly argued by counsel for the. relator that the cases of Raleigh v. District Court, 24 Mont. 306, 61 Pac. 991, 81 Am. St. Rep. 431, and State ex rel. Donovan v. District Court of Second Judicial Dist., 25 Mont. 355, 65 Pac. 120, apply directly to this case, and are conclusive, as to the power of this court to grant the relief demanded. If the factsún this case had warranted the issuance of the peremptory writ to compel a decision of the motion, — which we have said they do not, —these cases would furnish no precedent for a direction to the district court to restore the affidavits to the tiles and to pass upon the motion as submitted. In the former case it was held that where the district court refused to- take jurisdiction of a second contest of a will, the same being tiled before the hearing on probate was had, or, after having obtained jurisdiction, refused to proceed in its exercise by reason of an erroneous decision of a question of law or practice presented upon a preliminary objection, mandamus was the proper remedy to compel the court, to restore to the files such contest, which had been stricken out, and to proceed to a hearing of it. In the second case the court struck from the files a contest of a will presented by the attorney general on behalf of the state, on the grounds that, it was filed too late, and that the state had no such interest in the estate as would authorize a contest of the will in its behalf. If was held that mandamus was the proper remedy to
In the present case the order striking out the affidavits was made in the exercise of the court’s discretionary power, and mandamus will not lie to compel their restoration, even though it be conceded that the discretion was not wisely exercised.
Let the writ be set aside, and the application- be dismissed, at the cost of the relator.
Dismissed.
At the hearing:, upon the objection of the defendant -to the admission of evidence, the court ruled as follow s:
THE. CHIEF JUSTICE.: The general objection to the admission of evidence will be overruled. I will make a brief statement of the views of the court upon this matter. It as comp etent for a defendant upon application for a writ of mandamus to controvert the allegations contained in the affidavit pertinent to the ultimate question whether -the peremptory writ ought to issue. In addition to this, when answer is made in which -the defendant alleges a compliance with the command of the alternative writ, the relator is authorized, under the statute, to controvert the truth of such answer, and thus to enlighten the court as to what further order should 'be made, if any.- Of course, if the answer is found -true, this is the end 'of the controversy, except to enter an order disposing of the costs. [O. T. C.]
Concurrence Opinion
I concur.
Though I concur reluctantly, I do so without hesitation.