202 P. 575 | Mont. | 1921
prepared the opinion for the court.
Original proceedings in certiorari. The record before us is voluminous and most of it unnecessary to be detailed for the purpose of this opinion; hence only so much thereof as is essential to indicate the basis of our conclusion will be given.
It appears that in civil cause No. 3754, State ex rel. Lockwood v. R. G. Tyler et al., commenced in the district court of the twentieth judicial district, in and for Sheridan county, certain proceedings were had wherein an' alternative writ of mandate was issued on January 15, 1921, directed to the members of the board of county commissioners, as such board, B. K. O’Grady, clerk and recorder, and D. J. Olson (substituted for Rex M. Movius, his predecessor in office), county treasurer, commanding them to do and perform certain acts in connection with the allowance of the claims of Lockwood and Blakeslee, copartners, against the county. On January 22, the court made and entered its judgment that a peremptory writ of mandate issue against the defendant board of county commissioners, directing the performance of the acts above mentioned, and specifically exempting from the operation of the judgment the defendants O’Grady and Olson. Peremptory writ was issued accordingly. On the same day defendant board of county commissioners served and filed notice of appeal from the judgment to the supreme court, together with the required undertaking. On May 4, L. Y. Lockwood filed in the district court his motion to dismiss the appeal of defendant, enumerating many grounds for the
The order of the court made on May 16 to amend its judgment of January 22, from which appeal had long before been taken, was in excess of its jurisdiction and void (Hynes v. Barnes, 30 Mont. 25, 75 Pac. 523, and cases cited), and hence these relators could not be held in contempt for violation of or interference with that order. '“A party cannot be guilty of contempt of court for disobeying an order which the court had no authority, of law to make.” (State ex rel. Johnston v. District Court, 21 Mont. 155, 69 Am. St. Rep. 645, 53 Pac. 272; 9 Cyc. 10.)
For the reasons stated by Commissioner Spencer, we are of opinion that the order of the court below adjudging the relators guilty of contempt should be annulled^ and it is so ordered.
Writ issued.
The conclusion reached by the majority of the court in this ease is based upon the assumption that the district court had lost jurisdiction to put the judgment in the mandamus proceeding into execution because of the appeal therefrom by the board of commissioners. I am unable to understand, however, why, after an appeal has been perfected from a judgment and nothing else has been done, the appellant may not abandon his appeal and assent to the execution of the judgment as was done in this ease. By pursuing this course, the appellant, it seems to me, estops himself to allege want of jurisdiction in the court rendering the judgment to put it in process of execution. If the appellant himself cannot allege want of jurisdiction to execute the judgment, a stranger to it, as the relators were here, cannot be heard to object, nor can he lawfully interfere with the process appropriate to carry it into execution. If he ventures to do so and renders the process nugatory, he is, in my opinion, subject to punishment as for a contempt under the provisions of section 730J of the Revised Codes. And this is true whether he has been made a party by an amendment of the judgment or not. In my opinion it was entirely unnecessary for the district court to amend the judgment in the mandamus proceeding in order to make the relators parties, for without the amendment I think they would have been guilty of contempt in refusing to deliver the warrants to Lockwood and Blakeslee, who were entitled to have the
For this reason, I cannot assent to the conclusion reached in the majority opinion.