*1 conformity of conviction entered in with such verdict is affirmed.
ASSOCIATE BOTTOMLY, FREEBOURN, JUSTICES ANDERSON, ANGSTMAN and concur.
STATE ex REID, Relator, rel. DISTRICT COURT v. Respondents.
SECOND JUDICIAL DISTRICT, al., et Nos. 9161. January Submitted 1952. Decided December 1952. Decided Rehearing on Petition March 1953. 255 Pac. *2 Butte, Foley, E. Anderson, Helena, Mr. J. Ralph
Mr. J. Comfort, Virginia City, M. Blair, E. and John Frank Messrs. for relator. Helena, and Mr. Acher, and Arthur P. W. D. Rankin
Messrs. Zimmerman, Butte, respondent. for L. Charles Mr. Rankin, Mr. Blair, Mr. Acher Anderson, Mr. Mr. orally. argued Zimmerman ADAIR: JUSTICE
MR. CHIEF life-long resident of Reid, a widow and Margaret G. leaving- Montana, March county, died on Madison upwards of county, personal, worth real in such estate sons, namely: only three adult $400,000. Her heirs at law were Reid, residing Almon G. all Reid, F. Reid and George H. Alvin county. in Madison Reid, by attorneys, Frank George H. his
On March Montana, Virginia City, Comfort, both of M. Blair and John E. n county, petition for Madison court of in the district filed the admission probate writing of a purporting to be decedent ’s last will and also a appointment George H. special Reid as By administrator estate. the terms of the purported George will H. appointed Reid was nominated and as the executor thereof. Lyman
The Honorable Bennett, Sr., H. then presiding judge of the district court of county,-being Madison disqualified from hearing petitions so filed in his court reason of the fact prior to his election to the judge office of district and while engaged private practice law, he had drafted purported will, acting pursuant provisions to the of R. C. M. 91-2001, sec. called in Benjamin the Honorable Berg, E. judge judicial district of the sixth district of the state of Mon- tana, accepted jurisdiction who in the matter of such estate.
George H. Reid thereupon timely filed a affidavit of dis- qualification against Judge Berg imputed whereupon, bias acting pursuant provisions 91-2002, Judge Bennett ordered that all proceedings in the matter of *3 said estate be transferred to the district court of Silver Bow county, being an adjoining county and, pursuant to Madison to order, all the proceedings, papers and files in said estate matter were transferred to the district court of Silver Bow county and there refiled on March 1950.
Next Alvin F. Reid, Reid and Almon G. twin sons of the- decedent, within the by law, time allowed filed in the district county court of joint Silver Bow their contest of the testa- mentary writing probate. Thereafter, so offered for being issue joined, trial a was had the district county court of Silver Bow Downey, before the Honorable T. E. judge district presiding, jury. and a trial,
At duration, which was of some two weeks’ three attorneys, viz., Blair, Frank Esq., Comfort, E. John Esq., M. Foley, Esq., represented George and E. J. H. Reid, pro- ponent, attorneys, like viz., and a Wellington number D. Rankin, Esq., Acher, Esq., Arthur P. and L. Charles Zimmer-
man, Esq., represented Reid, Alvin F. and Almon G. contestants. hearing considering jury
After returned contest special finding Margaret Reid verdicts that at the time G. purported competent executed then to will she was not time was make a last will and testament and that at such she acting George H. Reid. under the undue influence of verdicts, May 16, 1951, special following filing
On rendered,- judgment duly a formal with the clerk was —filed adjudging purported entered in trial will to be date, probate. invalid it On the same refusing to admit May 16, 1951, entry judgment the above written notice of the duly attorneys. upon George was served Reid’s said ** * 3. From appeal may “An taken * * * refusing judgment or to admit will * * * R. C. M. probate,'or against validity of a will”. 93-8003, sec. 3. subd. of the court
“An with the clerk is taken entered, a notice appealed from is which the or order thereof, part same, specific some stating from the his at- party, or on the adverse serving a similar notice McLeod, McLeod v. torney.” 93-8005. See R. M. see. C. 965, 967. 590, 592, 593, 228 Pac. Mont. days the order sixty after taken within “The must be 91-4313. Also see sec. is entered.” 93-8004, subd. sec. mandatory and 91-4313, supra, are provisions of Sec.
jurisdictional. wholly comply failed to with lawyers and his George H. Reid 91-4313, supra. appeal was No requirements of positive therefor or at all. sixty days allowed taken within the judg- days after the 113- 6, 1951, being some September On Reid, H. George entry given, of its and notice entered ment was *4 counsel, in the office of filed named through above his and jnotion county a Boy of Silver district court the clerk relieving George the said an order make court “to asking that H. Reid his prepare, failure to and serve file notice of appeal judgment from that certain in the entered above entitled * ** proceeding day May on the 16th and also from the failure prepare necessary undertaking and file the for costs sixty on appeal day within the period provided by statute in such cases provided perfect made and an appeal order to Supreme to the Court of the judg- State of Montana from said ment and decree the whole thereof.” support
In above motion four filed,— affidavits were by George Reid, one H. the proponent, and one each attorneys represented three who him at the trial of the will contest. attorneys affidavits state that each said participated
actively in the trial contest; will that soon after the George rendition of the H. verdict Reid directed employed attorneys his said perfect to move for a new trial and to an supreme to the court in order to secure relief from the verdict; thereupon entered on such that attorneys said timely made for a motion new trial which motion was submitted to the trial court on briefs the being last of such briefs filed July 2, 1951; on that thereafter George trial court denied H. motion; Reid’s said that no was taken from the May so entered on but that an would been have taken but for the alleged inadvertence claimed neglect George excusable attorneys. H. Reid’s George affidavit, alia, H. Reid’s inter states: That he is a layman, nothing legal procedure steps or of the neces- —knows sary to obtain new trial or the reversal of the trial court’s judgment; day following jury’s that attorneys, Blair, Foley, verdict he instructed his Comfort and trial, perfect to move for a new to the state —to timely steps take complete secure a proceedings occurring court; review of all the in the trial entirely he left the matter attorneys the hands of his said confidence; whom he had full faith and that he did not check attorneys timely inquire steps with his of them if being were *5 taken to secure setting the aside of the entered or appeal; July its review on that on the state he left of Montana on a trip vacation and did not return until about the August anything middle of and that the first he knew time attorneys perfect appeal the failure to about of his an from judgment was his return the of subsequent said to to state Mon- August 21, tana about attorneys alia, Foley, of Blair and inter state: affidavits immediately employment upon
“That the of counsel to make a perfect Supreme new an the appeal motion for trial and to to George the IT. of the State Montana counsel for Reid Court of performed by the each of discussed division of labor to the handling these matters respective counsel in various incident perfecting the motion for a new trial and the of an to also Supreme the of the State Montana and there- appeal to Court of Comfort, agreed it M. of the counsel for upon was that John one George H. undertake proponent will, Reid, the would to steps the all notices formal be taken within time see that law, court, appropriate orders of within which to allowed Montana; Supreme of perfect appeal to Court of the State ‘‘ pursuant this affiant agreed That it was so and that entirely relied the said John M. left to and agreement timely appeal prepare and serve notice of from Comfort prepare, and file the neces- judgment aforesaid and to secure undertaking Supreme Court of for costs on sary Montana; the State of ‘‘ sixty days long expiration not until after of That it was was informed the date of this affiant said from time that the of afore- for the first notice and discovered prepared had neither been and served and also bond said filed.” nor Agreement” “Division of Labor the affi- the so-called
As to Attorney agreed it was states: “That so of Comfort davit relying that other counsel was this affiant understood and that duly prepare, file serve notice of upon him to prepare, and file and to secure judgment aforesaid necessary undertaking Supreme Court costs on to the Montana; of State ‘‘ May day That on about the 21st the contestants * # * * ** special George Reid, filed H. to remove * * * they charged mismanage administrator him with wherein property ment of the estate failure to account said proper handling time for the estate which his performance days entailed many preparing work in preparing accounting assisting accounts and his *6 associate, Mr. Blair, preparation pro the to defend ouster ceeding necessary and that incidental thereto it was for this complete property affiant take to inventories of the of the consisting many estate head livestock and much farm ma chinery equipment and and likewise this affiant found it neces sary associate, Blair, to preparation assist his Mr. in the extensive in support proponent’s trial; briefs motion for a new
“That duly elected, in addition affiant thereto this is qualified County Attorney acting County and of Madison and deputy that he performance has no to assist him in the of the many duties and incident thereto that matters in connection County Attorney with during sixty days the office of arose following entry judgment the above matter entitled May 16, 1951, including meetings County two of the Board of County, Montana; Commissioners of Madison ‘ ‘ engrossed performance That this affiant became so with the of the various affairs and duties above described that inadvert- ently prepare, appeal he and file omitted to serve the notice of judgment prepare from the aforesaid likewise to and file undertaking Supreme to an for costs incident sixty days by law; Court within the of Montana allowed expiration sixty days “That was until after it not from the affiant date said that this discovered for prepare, the first time that he had failed to so serve and file a judgment undertaking notice of from said cost appeal.” bond on
George consequences H. him Reid’s motion to relieve sixty days after the order
of Ms failure take an law, him, prescribed as is against was entered judge on 91-4313, the trial was submitted to October affidavits and briefs and on above holding it was without denied, the trial court that the motion was sought. grant the relief jurisdiction to make the order or to attorneys George H. Reid for September On trial court their client’s left with the clerk of the served and the trial exceptions proceedings had on proposed bill of new trial. on the motion for a attorneys served contestants On October objections pro- to the settlement and filed their written purported inter alia: That the exceptions urging, posed bill of the time perfected within nullity in that no was bill is a de- all; purported bill was not by law, or at allowed the time judge within the trial court or to the clerk of livered pre- purported bill was not all; at that the by law or allowed within the time allowed for settlement the trial court sented to jurisdiction to court has lost and that the trial by law or at all prescribed expiration of the time after the proposed settle the bill appeal was taken. appeal and that no taking an statute George H. Reid’s having 19, 1951, after considered October On thereto, the trial objections and the contestants’ proposed bill *7 objections to the settle- order, sustained judge, by written exceptions bill was purported grounds that ment on time allowed settlement within the court for presented to the not said jurisdiction to settle has lost “that the court by law, and appeal has not been reasons that an Exceptions for Bill of all, and the Court law, or at the time allowed perfected settle, sign and authority to jurisdiction or has no therefore Exceptions.” Bill of allow said attorneys, Reid, by George EL his 26, 1951,
On November request his former to judge renewal of the trial presented to exceptions, whereupon the trial court proposed his bill of settle denying request refusing written order a further made “upon grounds jurisdic- and for the reason it is without ’’ tion at exceptions. this time to settle said bill of proponent,
On George Reid, by November H. his attorneys, presented judge to the trial for settlement a new proposed different exceptions together .bill with certain thereto, amendments offered the contestants which latter proposed bill purported proceedings forth the set had on George H. September seeking Reid’s motion of an order to relieve him appeal, from his failure to within the time allowed by law, from the order and against entered him on May 16, 1951. permitted The trial pro- the contestants’ posed amendments to be made and then settled and allowed the bill as so amended. separate original
Thereafter three proceedings were filed in George Reid, this on behalf of H. being Nos. causes 9154 and 9161 herein. original
Cause No. In proceeding entitled, No. “State George Reid, Montana relation of H. Pro- ponent of Margaret the last will and Reid, testament of G. de- ceased, Relator, v. the District Court of the Second Judicial District of the State of Montana and the Honorable T. E. Downey, judge thereof, Respondents,” filed November petitioned the relator supervisory for writ of control to be against respondents commanding directed (1) court: trial judgment May 16, 1951, To set aside the order and refusing probate Margaret Reid, of the last will and testament of G. deceased; (2) (3) to admit such probate; appoint will to (4) George thereof; H. Reid as executor to settle bill of exceptions purporting proceeding to set forth the had on the trial; trial of the will contest and on relator’s motion for new (5) order, made to annul after the order and final, appointing the will had become G. contest Almon Reid general Alvin F. administrators of Reid the estate of deceased, (6) Margaret Reid, require general G. said relator, George restore the said estate to the administrators to *8 Reid, will, upon H. executor in his named mother’s his qualifying office. such No. original proceeding,
Cause 9154. In a No. second 30, 1951, bearing also filed November title as same Cause 9153, supra, relator, George Reid, No. H. petitioned for a compel of writ mandate to the district court of Silver Bow county Downey, thereof, judge the Honorable T. E. allow, sign proposed exceptions settle and relator’s first bill of part and to order the same made in the contest a record Margaret Reid, of the will in the matter G. of the estate deceased. Upon foregoing
Causes Nos. and 9154. petitions separate in this court a order was in each cause issued certain, directing respondents, day why cause to show response respective prayed for should not issue. In writs returns, respondents appeared, to such orders the —the —made orally argued filed, whereupon were such causes and briefs causes were submitted to this court for decision. original being 9161. In a proceeding,
Cause No. third No. 15, 1951, entitled, filed Matter of the December “In the Application George H. Leave Reid for to Prove Facts Exceptions,” a Bill With Reference to the Settlement of Reid, alleged H. petitioner George petition in his that on Novem- court, objection, petitioner’s allowed ber the trial over petitioner’s offered the contestants to certain amendments proceed- proposed exceptions purporting bill to set forth order to ings petitioner’s had on motion for district court appeal; take a and that grant timely him from his failure to relief exception action the trial petitioner timely took to the allowing and in amendments so offered contestants settling bill as amended. The allowing proposed prove before a granting petitioner leave to prays for an order certify have referee to be named in such order and to referee petitioner’s exceptions, facts relation to this court the —his alleged “failure of trial exceptions and the proposed bill of pursuant certify the same properly settle Judge and Court to *9 to Rule VII provisions of this Court and the of Section 93-5507 Montana, Revised of Upon parte Codes 1947.” presenta- oral ex tion of the an order show to cause was issued directed against respondent, Downey, judge Honorable T. E. as presiding, in county, the district court Silver Bow there- of after the respondent judge, by counsel, appearing made due return, and, following filing oral arguments and the of briefs the matter was submitted to this court for decision.
“The right appeal, though guaranteed of under 8, (article 23), may only
Constitution sec. be exercised in obedience statutory regulations to the ex applicable.” State rel. Cobban Court, v. 93, 95, Compare District 30 75 862, Mont. Pac. 863. Jackway 168, 42 Hymer, 169, 170, Mont. 111 v. Pac. 720. right statutory. probate purely of matters is Murphy, 273,
In re Estate of 279, 57 Mont. 188 146. Pac. elementary It is limiting that the statutes the time for mandatory jurisdictional. Peterson, are Malick v. 124 Mont. 585, (2d) 228 strictly Pac. complied 963. Such must be statutes Copper Hickey, 319, with. Co. v. 322, Washoe 23 Mont. 58 Pac. 866. They give jurisdiction must be followed this court to appeal, entertain County, Featherman v. Granite 28 Mont. 464, 462, 72 972, right by Pac. and the is lost lapse time. v. Mont. Cooper, Kaufman 38 98 Pac.
1135. appeal, being jurisdictional,
The notice of must be filed and prescribed, Peterson, served the time Malick v. supra, lawfully and the courts cannot extend the time nor comply Where, excuse failure to here, with the statute. as application prerequisite new trial not is to review appeal, the of a motion a new trial does not have the extending statutory period effect of prescribed for giving appeal. Estate, notice of In re 108 Blankenbaker’s Mont. (2d) 401; Estate, 91 Pac. In re 112 Mont. Sullivan’s 118 Pac. 383. Neither is time extended a motion ground mistake, inad for relief Potter, Compare Ogle v. neglect. vertence or excusable 920; Lewis, Cal. People Pac. v. (2d) be 93-8708, “'When an act to provides: R. C. M. in the done, code, pleadings relates provided this justification of action, undertakings filed, or the or the excep- statements, sureties, preparation or of bills or the thereto, service of notices tions, of amendments or to the may be appeal, by this code the time allowed other than of shown, by the court which extended, upon good cause shall judge thereof; but such extension pending, is or a action adverse the consent of the ninety days without not exceed party.” Emphasis supplied. beyond that authorizing granting of extensions of time
In acts doing of certain enumerated by the Code for the allowed *10 appeal” than of including “the service of notices other prescribed the time 93-8708, makes it clear that statute, section may extended serving appeal not of notices be by law for the appeal specifically are excluded for notices of thereunder are the courts denied the statute. Thus operation by prescribed statute for maximum time authority extend the Jackway v. Compare appeal. notice of filing of a or service Estate, 168, 720; 111 In re McCracken’s Pac. Hymer, 42 Mont. District 941; ex rel. v. 287 Pac. State Stimatz 342, 87 Mont. Estate, (2d) 8; In re Sullivan’s 510, 74 Pac. Court, 105 Mont. v. Dis (2d) 137; State ex rel. Sanford 496, 118 Pac. 112 Mont. (2d) 866; Malick v. Peter 429, 225 Pac. 124 Mont. Court, trict 156 963; Johnston, (2d) Land v. 585, 228 Pac. son, 410, 219 27 Pac. Lewis, Cal. 449; People v. 253, 104 Pac. Cal. (2d) 73. 534, 540, 54 Co., 101 Mont. Boy Gold Min. Bell
In Davis v. time “The limitation of court said: this Pac. fixed law so as may be taken is appeal an within which the trial court’s define the limit of end and litigation to an bring Schultze, 63 Mont. New Salem v. (State Bank of jurisdiction as is defined and, although a 599), 410, 209 Pac. parties action rights determination the final
501 (section or proceeding 1921), Rev. Codes must action regarded be pending as still meaning of the section until final appeal, determination on or appeal until the time for passed (Noe has Matlock, 591). v. Mont. 208 Pac. ‘A new trial is a re-examination of an fact in issue of the same court by jury after a trial court, and decision referees.5 Section 1921.” Rev. Codes Hanley’s
In Estate, the ease of In re (2d) 120, 23 Cal. (2d) 423, 424, 425, L. A. R. of California “In said: the absence statutory authorization, neither the trial appellate may nor courts extend or shorten time cases], [citing against mistake, even to relieve inadvertence, accident, [Citing or misfortune. can Nor cases.] jurisdiction be appellate conferred by the consent or stipulation parties, estoppel, [Citing or waiver. cases.] For a full rules, discussion of these comment, see L. Cal. Rev. appears 448. If it was not taken 60-day within the period, the court has no discretion but must dismiss the own objection of its motion even if no is made. [Citing cases.] strictly
“In adhering to statutory time for a notice appeal, arbitrarily the courts are penalizing not procedural missteps. may given Relief delay for excusable in complying many with provisions in the statutes and rules appeal, governing those the tie within which the record and briefs prepared must be procedural and filed. These time provisions, however, become effective is taken. The first after step, tailing appeal, merely is not procedural one; it *11 jurisdiction in appellate' vests the court and terminates the jurisdiction particular of the lower court. And of importance security rights is that the of contract, the fact titles to property, persons upon certainty the status rest in the finality judgments lapse statutory occasioned of the appeal.” taking time for the an attorneys George H. The Reid con-
BlanJcenbaJcer Cases. supervisory control to be they are entitled to writ of tend that against respondents, directed court of Silver district county pre Downey, judge Bow T. E. the Honorable siding, by rulings and supreme practice, virtue court’s of the original 8012, Blanken decision in No. ex rel. proceeding State 331, 96 County, baker 109 Mont. v. District Court of Chouteau 936, Pac. wherein the are as below stated: facts leaving 17, 1936, Virgil On June F. Blankenbaker testate died large county. His sole heir and property interests Chouteau wife, will was Ella M. Blankenbaker.- executrix of his his 3, Ewing, judge pre- H. August 1938,
On H. Honorable siding county entered in the court of district Chouteau determining the inheritance tax due and order the amount of in the matter decedent’s estate. may law be taken
Under the written of this state re determining the In judgment and order tax. from the so Floyd Estate, 220, 1033; 195 Pac. ex rel. Sattes’ Mont. State 438; Tuohy’s Court, 357, 368, 109 Pac. In re v. District 9731, M. 170; subd. R. C. 3, Mont. sec. Estate, 35 1935; 93-8003, M. R. C. sec. subd. sixty days judg- after taken
Such must be within Sec. is entered or filed with the- clerk. ment order made or (now M. 1935 4 and R. C. sec. subd. 91-4313). 93-8004, subd. secs. August from order or
No was taken days entry at all. Thus was sixty after its jurisdiction appellate right to invoke lost the proceedings in the district court review on court to determining judgment and order making resulting the tax. 10400.28, R. M. (sec. C. M. now R. C.
A statute special any judg- 91-4438) person dissatisfied with the allows determining apply tax to district ment and court, requires but thereof before that rehearing court for that written notice thereof made and application be * * * days determination of (60) sixty filed “within quoted phrase required court.” by the district tax *12 application that the to the rehearing district court a the case, Blankenbaker supra, be made and that written notice be sixty filed days August 3, 1938, from the date whereon and order were entered. 3, 1938, On October being sixty-first day entry after the of the judgment order, and attorney for the executrix filed in the district court trial, rehearing a motion new reappraisement days and five thereafter he filed affidavit by the support executrix in of her motion. The was heard motion 1938, on 3, November and thereafter granted district preparation additional time for the briefs 5, consideration thereof the judge, January trial on made and caused be entered in matter, the estate an order denying the motion of the executrix for a new trial or rehearing. appeal
No from lies order. The above statutes did not they then and do not now authorize an from an order overruling or denying a rehearing. motion for a new trial or In re Estate, page Blankenbaker’s at (2d) 401, 402.
On attorney March for the executrix served and filed a notice of non-appealable the above order thereby overlooking ignoring either or the fact that more than years legislative seventeen before assembly, by the enactment Chapter section Session Laws of p. expressly appeals overruling abolished from orders motions for a new proceedings. trial civil actions judge signed,
On March the trial settled and allowed exceptions setting a bill of proceedings forth all the had including district court to making non-appealable denying rehearing the motion for trial new from which attorney appeal. attempting for the executrix was respondent, equalization, promptly the state board of interposed attempted appeal a motion on to dismiss the grounds, alia, denying inter that no lies from an order rehearing. motion for trial or Secs. 9731 and new April 10, 1939, granted appellant On thirty respondent days executrix from its determination serve and board’s motion to dismiss the within which to appellant’s transcript appeal. file *13 May judgment 16, 1939, supreme pronounced its On the court respondent for the dis- granting and decision the board’s motion concluding sentence reads: appeal, missal of the the whereof In re Blanken- appeal granted.” “The to dismiss the is motion Estate, (2d) 401, 91 Pac. baker’s 93-8020, 9748, 1935, 1947, M. R. C. M. sec. Section R. C. now an is in an provides: appeal “The dismissal of effect from, appealed unless the judgment affirmance the or order of ap prejudice another expressly dismissal made without to is peal.” appeals probate in applies to new trials and This statute 1947,' 1935, M. 10366, R. C. M. now R. C. proceedings. Sec. 91-4312. sec. was, legal effect, appeal the unqualified dismissal of 5, January of the order of the district court of
an affirmance 10366, 9748 and 1939, appeal was taken. Secs. from which the 1935, supra. M. R. C. 1935, provides: judgment M. “A is the 9313, R.
Section C. parties in an or rights the action final determination of the ’’ proceeding. 1935, alia: “The 10558, provides, M. inter effect R. C. Section special proceeding in an judgment final order action or of a or * * * is as follows: judge of this state a court or before * * * respect the judgment In or order “1. of a case of a de- will, the of the estate probate administration of a or * * * * * cedent,* or order is conclusive the the administration, the condition or relation of will, or the or person. is, respect cases, the or order In
“2. other parties the directly adjudged, conclusive between matter the * * *.” in interest their successors Estate, 1939, Blankenbaker’s May 16, In re opinion In its supreme the court ordered 383, (2d) 91 Mont. holding that from appeal appeal dismissal of no lies rehearing that denying trial, reappraisement; a new or appeal appellant’s there no in the that an was merit contention until fixing from tax not made the order inheritance could petition disposed of, rehearing for a retrial or was first rehearing “The of a motion new trial or order determining right the tax not did affect order, from prolong time which an therefrom could be taken.”
There rehearing was no above decision ordering thereby dismissal was effected complete and final affirmance order of trial denying rehearing a new trial which the was taken. B. M. 1935. Libin Sec. See Huffine, v 224 Pac. Mont. where this court said: Judgments, Ed.,
“In Freeman 5th pp. says: judgments appellate the author ‘The courts are *14 as any They only conclusive as those court. not of other establish facts, law, upon but also settle the that the so law decided any appeal applied must be in the subsequent stages all of the cause, they judicata every and are res in other cases as to ” adjudicated.’ matter law, justice permit
Neither the taking nor common sense the appeal supreme of an the court from its own decisions judgments they permit taking and nor do of successive appeals supreme judgments court or orders that already by have been affirmed that court. transcript supreme
No on was filed in the court Estate, 7959, supra, In re No. Blankenbaker’s cause (2d) 401, prior of the dismissal and Pac. executrix lost in the after the dismissal counsel for the interest placing not in transcript in their lost cause but of a subsequently in a commenced the court record before 8012, 109 Mont. original proceeding No. ‘‘ Ella Blanken- relation M. Montana, of State on the entitled: of baker, Virgil Blankenbaker, as executrix of the estate of F. and, deceased, Blankenbaker, Relators, Ella M. The District v. Eighth Montana, Court of the Judicial District the State of of County Chouteau, in and for the and the Honorable H. H. Ewing, Judges thereof, Respondents,” August one of the filed 31, 1939, they petitioned supreme wherein court to take jurisdiction original super- in the a writ matter and to issue visory against respondent judge directing control court and grant rehearing judgment the trial its and on August 3, 1938, determining order inheritance tax. A marked Exhibit Attached to the for such writ and copy exceptions filed, and allowed was a of the bill of settled by 18, 1939, comprising type- judge the trial on March pages, incorporated in the originally written intended to transcript supra, on to be filed in No. and setting including had in the trial court proceedings forth all the testimony and in the cause. of eleven witnesses all exhibits attorneys for the original proceeding Thus in No. did the request court to review relatrix a second time they were com- errors which claim the same record for same entering its making in the mitted the trial court making August and order of January 5, 1939, denying the motion entering its de- rehearing and order so trial or new termining the tax. judgment and order of
Notwithstanding that the trial court’s long January had August 3, 1938, as well as its order of by any beyond challenge final thus since become assumed to ac- litigant, supreme court nevertheless parties proceeding No. 8012 and ordered jurisdiction original cept to issue and be served supervisory control an alternative writ of who, appearing their respondent and6judge *15 timely Esq., interposed a motion Anderson, Ralph J. counsel grounds that issued quash writ so cause or sufficient to constitute not state facts therefor “does supervisory any control or a writ of the issuance of reason for extraordinary other by writ authorized the Constitution and the laws of the state.” improperly Such motion was denied whereupon supreme proceeded court to review the record precisely claimed errors though the matter was before it on timely a proper appeal. and
On supreme November pronounced court its judgment decision, Relatrix, and ex Blankenbaker, State rel. v. Court, District No. 8012, (2d) 936, 940, Mont. holding the respondent judge that court and had committed (1) error: In imposing transfer tax various real estate transfers executed surviving the decedent wife Ella M. to his and contemplation Blankenbaker claimed to have in been made of death; (2) in invoking giving presumption and effect to the set forth in Chapter 186, subdivision 3 of section Session 1935, page Laws of 404, providing certain real estate years prior transfers made within three to the death of the grantor donor or shall be in deemed to have been made con- templation death; (3) in all appraising the real estate in- volved per acre; $3.75 at (4) computing interest on the tax at per cent; (5) ten in overruling denying the motion for rehearing on the determining and order tax in the concluding paragraph opinion of its said: think “We of this issuing circumstances case warrant us in writ supervisory is, therefore, control. It ordered that the writ issue commanding respondent denying court to set aside the order ’’ rehearing granting motion for and to enter an order it. only supreme jurisdiction
Not was the court without to review the proceedings resulting had in the district court in the trial appealable judgment August 3, 1938, court’s and order of non-appealable January denying its order of a rehearing, motion of executrix a new trial or but express statute, 9729, appellate was prohibited reviewing proceedings. so
A timely proper appeal from the and order August 3, have enabled the would jurisdiction pro- entire appellate exercise to review the of its *16 ceedings had in resulting the trial court in judgment such and order determining the tax and would appellate have enabled the grant proper. court to such relief remedy by appeal as was The provided so adequate. Upon expiration sixty was days taking allowed for an appeal taken, and with no -the judgment and order longer subject became final and no to by supreme review inor court. 1935,
Section M. “A provides: judgment R.'C. or order in action, except a civil expressly by when made final code, this may be prescribed reviewed as in sections to 9761 of this code, otherwiseEmphasis and not supplied. This statute is prohibitory jurisdictional. both and It limits this court’s review proceedings appealable which resulted in the and order judgment fixing by the tax is contemplated to such review as provided for in R. sections to C. M. “and not otherwise.” Sec. 9729. rehearing judgment new motion for a trial or on the pursuant provisions 10400.28,
order made to the of section merely attempt prevail upon was an to the trial proceedings court to review the had therein end to the that the judgment August 3, 1938, and order of be modified and the in- heritance tax fixed at a lesser amount and the trial court’s January 5, 1939, denying rehearing a new trial or finally should have ended the matter for at late date the by taking maximum time allowed statute for an August 3, 1938, long and order of had since expired denying and the trial court’s order a new trial or subject rehearing non-appealable and therefore not was by every supreme either the trial review lawyer in state must know. this control, invoking original jurisdiction
Supervisory court, appeal provided supreme is not a substitute Meyer Court, ex statute. State rel. v. District (2d) 778, page at 57 Pac. page at supervisory may Original proceedings seeking control not be allowing timely employed by-pass requiring the statutes appeals supreme court. Where as here the allowed by statute adequate remedy, remedy furnishes an is ex- only reviewing clusive and furnishes lawful means of supreme determining court the and order the inherit- timely ance tax. The review the court must had on proper prescribed governing- as is the statutes appeals “and not otherwise.” R. C. M. 1935. Sec. government law,
This is men. not of *17 government It is a of written Such law is a law. solemn ex- pression supreme power state, of the see. 12-101, expressed by by or statutes. R. C. M. Constitution organic sec. 12-102. “The gov- law is the constitution of ernment, altogether and is written. Other written laws are denominated statutes. The written law of this state is therefore in statutes, contained its constitution and and in the constitu- tion and statutes of the United States.” R. M.C. see. 93-1001-9. jurisdiction
The
supreme
source
court of
Montanais found in
Compare
the Constitution of Montana.
Bordeaux,
Bordeaux
v.
Jurisdiction foundation The “jurisdiction” term fundamentally power means or capacity by given court, entertain, law to a hear and determine particular any A power ease or matter. court has no to do thing by law, jurisdiction not authorized hence the aof court power authority means the upon which is conferred a court by the Constitution and laws to hear and determine causes be parties carry judgments tween and to such into effect. judicial by
A tribunal established Constitution owes its existence to that alone. instrument
“Except provided constitution, as otherwise this court ’’ only. appellate jurisdiction State ex has rel. Scharnikow Hogan ex Kennedy Martin, v. and State rel. v. Mont. L. R. A. 958. conferring jurisdiction state,
The Constitution of this repeatedly power so court, declares that the conferred must this regulations be exercised or under such limitations and may prescribed by as be law.
The provides: Constitution of Montana supreme court, “The in this except provided as otherwise * * * appellate jurisdiction only, under constitution, shall have prescribed regulations may law.” and limitations as be Emphasis supplied. VIII, Article 2. see. jurisdiction
“The court shall extend appellate supreme however, subject, to such equity, all at cases law and may law.” prescribed be regulations limitations Emphasis supplied. VIII, Article 3. sec. ** * Appeals “shall district be allowed from the decisions of may regulations as be supreme under such courts VIII, prescribed by supplied. Article Emphasis law.” power in its discretion to supreme court “shall have corpus, hear manda- issue and to and determine writs of habeas mus, injunction, eeritorari, prohibition and quo-warranto, may necessary original such other and remedial writs as appellate jurisdiction.” proper complete to the exercise its Emphasis supplied. VIII, Article sec. 3. * * * general supervisory “The have a shall regulations courts, all inferior under such control over *18 by may supplied. prescribed Emphasis limitations as be law.” VIII, Article sec. 2. a power supreme general
The to exercise granted to plainly supervisory ‘‘ subject courts is to control over inferior ’’ by may prescribed law. regulations such and limitations as be VIII, 2, supra. Art. sec. Const. subject regulations power granted is to such and
The so legislature may people initiate. as the enact or limitations by jurisdic- appellate The exercise court of its regulations subject “to limitations and is likewise such tion VIII, 3, duly by law”, Art. sec. and may prescribed Const. 19-26, by V, Art. sees. legislature, Const. regularly enacted people. initiated Const. Art. 40, duly regularly and or V, sec. 1. legislature express has prescribing enacted written laws regulations regulating and limitations the issuance of the VIII,
various writs named in Constitution, Article namely (1) corpus, writs of: R. 94- 1947, Habeas C. M. secs. 94-101-33; (2) 101-1 to mandamus, 1947, R. 93-9101 C. M. secs. 93-9114; to (3) quo warranto, M. R.C. secs. 93-6401 to 93-6426; (4) certiorari, 93-9011; R. C. M. 93-9001 secs. to (5) prohibition, (6) 93-9201 93-9204 secs. injunction, R. M.C. However, secs. 93-4201 to 93-4216. we find written promulgated no laws enacted law- making department of our M. government, R. C. secs. 12-101, 12-102 and 93-1001-9, prescribing regulations limitations governing the issuance super- of so-called “writs visory control.” being
There provisions no of the Constitution and no statute prescribing state regulations or governing limitations device supervisory known as “writ of control” which this court has seen fit time, to issue from time to the court has at- tempted regulations to make its own and limitations as to when may may such “writ” not issue regulations which and limita- appear change tions with each new for the “writ.” In State ex rel. Blankenbaker Court, v. District page 336, 96 (2d) 936, at page 939, at the court said: “Supervisory control does not right, issue as matter of but only in the discretion of the court and each case must be de- cided on own its facts and It circumstances. will issue when justice there has been a and if exigent, the case is failure of particularly remedy by where there appeal.” is no clear Em- phasis supplied. already
As shown the relatrix Ella M. Blankenbaker had a adequate remedy by clear and from the fixing the tax required pay, which she was duly all prescribed by law, written but she failed to avail herself of remedy August 3, and the and order of adjudicata became final and res in the binding estate matter litigants courts alike. *19 exigent,”— is when “the case Who and what determines and what justice” and when been a failure of when “there has super- grant the writ this court to the discretion of moves visory control! jurisdiction in the wholly without
The court was case, 8012, to the record Blankenbaker No. review second judgment and resulting in the trial court’s proceedings had inheritance tax due August 3, 1938, determining the order of 5, 1939, denying a January order of the trial court’s thereon, opinion, decision rehearing trial hence the new ex rel. Blankenbaker holding this in the case of State 109 Mont. Pac. Court, v. No. District expressly disapproved and overruled. are cases, 9153, 9154 George H. Nos. In the three Reid court, sought in cause the relief each now before this proceedings including applied is denied the writs in this are ordered dismissed. denied, rehearing opinion is and de- —the pronounced in said causes is ordered
cision December foregoing It is so and the is substituted therefor. withdrawn ordered. FREEBOURN, JUSTICES BOTTOMLY and
ASSOCIATE concur. (concurring result).
MR. ANGSTMAN: in the JUSTICE agree foregoing opinion I the result reached in but with in it. not with all that is said agree attempted appeal in
I do that the dismissal of the not Estate, In the ease re Blankenbaker’s affirming attempted order (2d) 401, had the effect of 93-8020, appealed providing from. I think R. M. sec. an affirmance of an has effect of dismissal application has appealed from or order appealable from an there was an situation where appeal for some one of the reasons but which 93-8019, had to be dismissed. specified in R. C. M. *20 my It is view that the dismissal an attempted appeal from non-appealable judgment, order or such as that in the Blenken- ease, baker supra, does not have the effect of an affirmance of judgment attempted the order appealed or be from. In such jurisdiction a ease the acquires anything no except to do attempted to dismiss the appeal. acquires jurisdiction It no affirm or attempted otherwise affect the order appealed to be from. agree
Neither Ido that the case of State ex rel. Blankenbaker Court, v. District (2d) 936, Pac. should be given overruled. The reason may for conclusion be not I sound think the but result was correct. The statute involved that case was what is R. 91-4438,reading: now C. M. attorney general, “The equalization, state public board of ad- ministrator, county attorney, any person or dissatisfied with appraisement or assessment and determination of tax may apply rehearing for a thereof before the district court sixty (60) days fixing, assessing from the and determina- by tion of the tax provided filing district court as herein on , a written grounds notice which shall application state rehearing. for a The rehearing upon records, pro- shall be ceedings, proofs hearing had and taken herein provided newly unless additional or discovered evidence alleged therefor, granted and a new trial shall be had not specially unless ordered the district court.” section, noted, speaks This it will be rehearings both of interpretation Fair contemplates new trials. of the section two things: First, rehearing, records, upon proceedings proofs hearing. had and taken A upon on the Second: new trial newly rehearing additional discovered evidence. A upon records, proceedings proof hearing had on the follows as a upon application. matter of dependent course That is not requires the discretion of the court and no order. The newly new trial on additional or discovered evidence must be petitioner. ordered the court it is available to before application rehearing It therefore follows that when the was filed wiping last cited case it had the effect of out fixing order leaving the inheritance tax and the case as if order no for inheritance tax had made. There then been was applica- no occasion to from that order. rehearing tion for left no order to from. The made rehearing might entirely after have been different previously one made.
I think the case, conclusion reached in the Blankenbaker Mont. correct, I think was but it is entirely authority different from the instant case and is no granting supervisory of the writ of control this case.
MR. having JUSTICE ANDERSON not been a member of *21 original the court at the time of the opinion part did not take in the decision. Respondents.
HEIN, Appellant, FOX, al., v. et No. 9109. Submitted December 1952. Decided March 1953. 254 Pac.