119 P. 174 | Mont. | 1911
delivered the opinion of the court.
This is an original application for a writ of supervisory control to set aside a final judgment rendered and entered in the case of Cline v. Darius F. Grogan et al., the relators herein, by the district court of the ninth district in and for Gallatin county. The action was commenced on November 16, 1909, by Carrie Cline to recover from the relators the amount of a promissory note for $1,478.77, executed by them to Yietor E. Cline, on January 28, 1901, and thereafter transferred by him to Carrie Cline. The issues were made up by the reply of the plaintiff, Cline, filed February 5, 1910. Thereafter the cause was set for trial on June 18. On June 16 the relators filed their affidavit alleging that they could not have a fair and impartial trial by reáson of the bias and prejudice of Honorable W. R. C. Stewart, the judge of that district. Accordingly, Judge Stewart postponed the trial until June 20 and called in Honorable J. Miller Smith, of the first district, to sit in his place. Counsel who had theretofore acted for relators had withdrawn from the cause, and it seems that relators were then without counsel. Immediately after the announcement that Judge Smith would preside at the trial, Darius F. Grogan made and caused to be filed with the clerk the following affidavit: “D. F. Grogan, being first duly sworn, deposes and says: That he is one of the defendants in the foregoing named action; that
It does not appear from the petition when the relators first received notice of the entry of judgment.; but it does appear that on October 10, 1910, they procured counsel to prepare, and who did prepare, the petition filed in support of the present application. Thereafter they took no further steps until September 21 of this year, when the petition was filed in this court. The petition recites the facts above narrated, and is accompanied by the affidavits of Darius F. Grogan and both of counsel for relators, the purpose of which is to supplement the petition by showing that relators did not apply promptly to this court for relief because, when the judgment was entered against them, they were, and since have remained, financially unable to pay the necessary filing fees. Upon the filing of the petition this court issued an order to show cause. At the hearing the defendants filed and submitted certified copies of affidavits theretofore filed by Darius F. Grogan m other proceedings to which he was a party in the district court of Gallatin county, and also original affidavits of other persons controverting the matters alleged in the affidavits accompanying the petition, and submitted a motion to set aside the order and dismiss the proceedings upon several grounds, all of which are included in the general statement that the facts alleged in the petition do not warrant the relief demanded.
If it be assumed that the financial disability of a litigant Í3 sufficient under any circumstances to justify or excuse delay
But, accepting the representations as to the financial condition of relators as true, there is another reason which concludes them from having any relief in this court. When the judgment
The supervisory power of this court was examined, and its functions tentatively defined, in State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395. It has been invoked in many cases since that decision was rendered, but has always been confined in its use to exigencies arising during the progress of litigation in inferior courts, to remedy manifest wrongs which cannot otherwise be righted, and which will result in irreparable damage unless relief is granted.. The following are illustrative
It was suggested during the argument that the relators may still resort to an action in equity to have the judgment set aside. This may be so (State ex rel. Happel v. District Court, 38 Mont. 166, 129 Am. St. Rep. 636, 99 Pac. 291); but, if it is so, there is thus apparent still another reason why this court should not interfere to perform an office which primarily appertains to the district court. The relief granted by this court would be exactly that which should be sought through the original equity jurisdiction of the district court.
The order to show cause is therefore set aside, and the proceeding is dismissed.
Dismissed.