O'Sullivan v. District Court , 119 Mont. 429 ( 1946 )

I am not able to share the views of my associates that supervisory control does not lie in this case. I think we seldom have a case before us where that extraordinary writ is more appropriate.

If we are to abolish the use of the writ entirely, then that should be done by amending the Constitution in the regular way and not by judicial fiat.

My associates concede that the pleadings in the lower court raise issues of fact. That being so, the legislature has said in no uncertain terms that those issues must be determined by a jury, if jury be demanded as has been done here. (Sec. 10368.) My associates say that such a procedure is "interesting and novel." Section 10368 has been the statutory law in Montana for 70 years and I see no room for the suggestion that it is either novel or interesting. My associates suggest that since relatrix may have the question determined on appeal as to whether she is entitled to a jury to determine the issues raised in the proceedings, she has an adequate remedy by appeal.

The fact that there exists the right of appeal does not preclude the use of the writ. State ex rel. Haynes v. District Court, of First Judicial District in and for Lewis and Clark County,106 Mont. 470, 78 P.2d 937; State ex rel. Regis v. District Court of Second Judicial District, Silver Bow County, 102 Mont. 74,55 P.2d 1295. If the appeal be inadequate, the writ is appropriate.

We have heretofore made use of the writ to correct an error in the trial court when to allow the district court to proceed with the trial and then, on appeal, send the case back so that it could be tried again with the error removed would be "Inefficient, costly and time-consuming, and would benefit no one." State ex rel. Crowley v. District Court of Sixth Judicial District in and for Gallatin County, 108 Mont. 89,88 P.2d 23, 30, 121 A.L.R. 1031. And in State ex rel. Barnard-Curtiss Co. v. District Court of Third Judicial District in and for Granite County, 113 Mont. 107, 122 P.2d 419, 422, this court said: "Here the case might be tried on the pleadings as they stand, without the amendments sought to be made, and the point could be reserved for correction of the error on appeal if judgment went against relator. This, however, would be denying to the relator the right of trial of the actual case as contended for in its application to amend. It would be deprived of the right to interpose a legitimate defense, and this because of the refusal of the district court to allow the amendment without any good reason for such refusal. The necessity of going through a trial of the case and thereafter the resort to appeal for correction of the error, and a second trial upon an amended statement of the case, would be imposing a hardship upon the relator which the rule in respect to amendments of pleadings is intended to avoid. The remedy by appeal, therefore, cannot be said to be adequate. The exercise of supervisory control in this matter we think is necessary to protect the rights of the relator as a litigant."

If relatrix in the case before us loses in the trial on the merits, she may appeal to this court. But this court cannot do more than send the case back with directions to grant to her the right to a jury trial as the statute commands. Section 10058 does not conflict with section 10368 but merely contemplates that objections which raise legal questions only or fact questions and no jury be demanded, shall be tried by the judge, whereas section 10368 specifically provides that fact questions shall be tried to a jury if demanded.

On appeal to this court the most that this court can do is to say that relatrix and her counsel, the court, witnesses and all parties to the controversy have wasted their time and expended their money in doing an idle and useless thing. The trial will have to be pronounced a nullity because not taking place before a properly constituted tribunal and the parties will be directed to start all over again. This court on appeal could not grant any relief other than to order a jury trial and I think now is the time to do that. The round-about method that must be employed under the majority opinion strikes me as rather "inefficient, costly and time-consuming" resulting in no benefit to any one.

Then again my associates think relatrix has an adequate remedy by allowing the petitioner to be appointed executrix and then seek her suspension under section 10124.

The legislature, however, recognizing that sometimes it is better to lock the door before, rather than after, the horse is stolen, has made provision for objections to be filed before the appointment. (Sec. 10058.) Evidently the legislature did not believe that the remedy under section 10124 should be regarded as adequate in every case and for that reason enacted section 10058.

I think it is an abuse of discretion not to issue the writ in this case.