State ex rel. Scollard v. District Court, 132 P. 21

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132 P. 21 | Mont. | 1913

MR. JUSTICE SANNER

delivered the opinion of the court.

Application for writ of prohibition. Basis: that the respondent court, claiming to have before it, by virtue of a change of venue from Gallatin county, a certain divorce action by the relator, as plaintiff, against Alice B. Scollard, as defendant, has issued and caused' to be served upon the relator an order commanding him to appear before said court and show cause why he should not be required to pay alimony, suit money, and attorney’s fees, which order the said court, unless prevented, will proceed to hear and determine. It is alleged that the said court is without jurisdiction in the premises, because the files and papers in said cause have never been transmitted to said court, and because the order of the district court of Gallatin county, granting the change of venue, was stayed, and pending such stay the said action was on motion of plaintiff dismissed before the filing, on the part of the defendant, of any plea seeking affirmative relief.

We decline discussion at this time of any of the questions presented, but deny the application of relator for the reasons stated by this court in State ex rel. Mackel v. District Court, 44 Mont. [1] 178, 179, 119 Pac. 476, as follows: “He should first present his contention * * * to the district court. That court has given him an opportunity to show cause, and he must avail himself of it. The presumption is that the court will correctly decide the point.” If the relator’s contention be correct and the court should so decide, he will not be aggrieved; “on the other *286hand, if the order below is adverse to him, * * * he may invoke the power of this court to afford relief therefrom.” (See, also, State ex rel. Browne, v. Booher, 43 Mont. 569, 118 Pac. 271; State ex rel. Heinze v. District Court, 32 Mont. 394, 80 Pac. 673.)

The proceedings are dismissed.

Dismissed.

Mr. Chief Justice Brantly concurs. Mr. Justice Holloway did not hear the argument and takes no part in the foregoing decision.