State ex rel. Harris v. District Court
70 P. 981
Mont.
1902
Check Treatment
ME. JUSTICE PIGOTT

delivered the opinion of the court.

By'the amended complaint in an action pending in the district court- of Silver Bow county, entitled “John S. Harris, as Administrator of the Estate of Robert G. Ingersoll, Deceased, *281v. Henry A. Root et al." tlie plaintiff demanded judgement for $95,000 as tbe remainder dne for professional services rendered by the decedent in his lifetime to certain of the defendants; that the debt and judgment- be declared a lien upon the interests and shares of such defendants, and that a receiver thereof be appointed. Demurrers to the complaint were filed, and after-wards withdrawn, and the defendants answered. The court .appointed a receiver. On December 10, 1902, the cause came on for trial before the court sitting’ with a jury. On December 11th, when the plaintiff attempted to examine his first witness, the defendants objected to the introduction of any evidence, on the ground that the amended complaint fails to state facts sufficient to constitute a cause of action. The court sustained the objection, dismissed the “complaint,” and discharged the jury, the plaintiff excepting. Counsel for the plaintiff state that on the next day a formal judgment was rendered in favor of the defendants. The plaintiff now applies to this court for writs of supervisory control, certiorari> and mandamus. He asks that by means of these writs the order dismissing the complaint be annulled, and that the 'district court and its judge be required forthwith to recall the jury and to proceed to trial.

1. As to certiorari> it is enough to say that the court had jurisdiction to make the order sought to be annulled, and therefore this remedy is not available. (State ex rel. Prescott v. Third Judicial Dist. Court, 27 Mont. 179, 70 Pac. 516.)

2. Mandamus does not lie to direct the making of a particular judicial decision or ruling in a matter within the jurisdiction of the court or judge. (State ex rel. Independent Pub. Co. v. Smith, 23 Mont. 329, 58 Pac. 867.) Nothing in Raleigh v. District. Court, 24 Montana Reports, 306, (61 Pac. 991, 81 Am. St. Rep. 431), supports the plaintiff’s contention. There it was - held that refusal to take jurisdiction, or, after having acquired jurisdiction, refusal to proceed in its regular exercise, or the erroneous determination of a question of law or practice, presented as a preliminary objection, upon which the court refused to examine the merits, will be corrected by mandamus. Here the court took *282jurisdiction, and proceeded in its regular exercise1; its decision that the complaint lacks substance was not the determination of a preliminary objection, but was the determination of an issue of law arising in the cause itself (not before reaching’ its threshold), and hence involved the merits.

3. The writ of supervisory control cannot be successfully invoked, for, it may be employed only in exigent cases to remedy manifest wrongs which cannot be otherwise righted. (State ex rel. Sutton. v. Second Judicial Dist. Court, 27 Mont. 128, 69 Pac. 988.) Should the writ issue upon the present application, it would lie to correct each and every mistake of district courts,, and in great measure supplant the ordinary appeal. Such is not its office. (State ex rel. Moore v. Second Judicial Dist. Court, 25 Mont. 31, 63 Pac. 686.)

The alleged errors asserted by the plaintiff may be corrected only on motion for neiv trial or on appeal. Let the application be denied, and the proceeding dismissed.

Dismissed.