State Ex Rel. Niewoehner v. Mitchell, 113 Mont. 617

State Ex Rel. Niewoehner v. Mitchell

113 Mont. 617 | Mont. | 1942

Lead Opinion

Decided June 16, 1942. On the authority of Cause No. 8330, Gullickson v.Mitchell, 113 Mont. 359, 126 P.2d 1106, and of Glenn v.Ryan, 144 Kan. 363, 58 P.2d 1077, relator's application for an alternative writ of mandate is hereby denied. *618

On June 18, 1942, relator filed his petition for a rehearing of his application. The court on that petition ruled as follows: "There being no rule or authority for the filing of a petition for rehearing of an order denying an alternative writ of mandate, the petition therefor filed by relator is hereby ordered stricken from the files." (Concurred in by CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES ANDERSON and MORRIS.)

Dissenting Opinion

"While it is true the Rules of this court do not provide for a petition for rehearing of an order denying an alternative writ, yet I think we should treat such a motion as an application for reconsideration and consider the motion on its merits. I think instead of striking it from the files it should have been considered and denied with the reasons given therefor."