In re Harney , 29 Mont. 370 ( 1904 )

ME. JUSTICE! HOLLOWAY

delivered the opinion of the court.

On November 21, 1903, an action was pending in Department No. 1 of tbe district court of Silver Bow county, presided over by E. W. Harney, judge, wherein E!. B. Mendenhall was plaintiff and T. M. Hodgens et al. were defendants, in which action the defendant Hodgens had theretofore appeared and filed an application for an order requiring the plaintiff, Men-denhall, and his attorneys to1 permit him (Hodgens) to inspect and make copies of certain papers alleged to be at that time in the possession of plaintiff’s attorneys. Such application was heard by the court, which thereupon made the following order: “This day this cause coming regularly on to be heard upon defendant’s application for order of inspection of writings and plaintiffs objection thereto; plaintiff being represented by Messrs. Donovan and Mettler, and defendant being represented by Messrs. McBride & McBride. After bearing argument of counsel, the motion is by the court sustained and objection overruled, to which ruling, the plaintiff by counsel duly excepts, and orders that plaintiff have until November 28,1903, between the hours of 10 and 12 a. m. to submit writings herein is by the court made and entered herein.”

On November 27, 1903, plaintiff applied to this court for a writ of review to annul the order so made, and this court on November 28, 1903, ordered the writ to issue, and directed that “all proceedings under said order of inspection and copy be stayed until the further order of this court.”

On December 9, 1903, the writ of review was duly served, and on the 12th day of December, 1903, the district court caused to be certified to this court what purported to be the record in the case of Mendenhall v. Hodgens. On January 4, 1904, the attorneys for plaintiff, Mendenhall, called the attention of this court, by an affidavit, to the fact that after service of the writ of review upon the lower court, and before the record had been certified to this court, the trial court had ma'de a material alteration in the record in the cause by changing the order of inspection made on November 21, 1903, in a material respect. This court thereupon issued an order to show cause why the judge of said court should not be punished for contempt. The return of the judge to this last order sets forth a copy of the order of November 21st, as shown above, and proceeds: That on December 11, 1903, upon motion of counsel for defendant Hodgens, the lower court amended said order to show that, upon the hearing for'the order for inspection, counsel for the applicant for that order introduced in evidence, in addition to the moving papers, the original and amended complaints in the case of Mendenhall v. Hodgens et al. The return attempts to justify this change in the order by asserting that it was done in order to make the record speak the truth. Upon the affidavit and this return the matter was heard by this court, it being conceded that no issue of fact was presented.

Sections 1944 and 1945 of tbe Code of Civil Procedure read as follows:

“Sec. 1944. Tbe writ of review must command tbe party to whom it is directed to certify fully to tbe court issuing tbe writ, at a specified time and place, a transcript of tbe record and proceedings (describing or referring to tbem witb convenient certainty), that tbe same may be reviewed by tbe court, and requiring tbe party in tbe meantime to desist from further proceedings in tbe matter to be reviewed.

“Sec. 1945. If a stay of proceedings be not intended, the words requiring the stay must be omitted from tbe writ; these words may be inserted or omitted, in tbe sound discretion of tbe court or judge, but, if omitted, tbe power of tbe inferior court or officer is riot suspended or tbe proceedings stayed.”

Whatever may have been the rule, prior to tbe adoption of tbe Code of 1895, as to tbe efieet of tbe service of tbe writ of certiorari to stay proceedings, tbe Code itself now furnishes tbe only rule for our guidance. Under tbe provisions of Section 1945, above, tbe court issuing tbe writ of certiorari may include in tbe writ, or omit therefrom, a provision requiring a stay of proceedings, and, if omitted, there is no* stay, and, if included, tbe extent of tbe stay is to* be determined from tbe words used. In this instance this court specifically limited tbe stay of proceedings, to prevent tbe enforcement of tbe inspection order, and it is not contended that any attempt was made to enforce that order. Tbe alteration in tbe minutes* made by tbe lower court was entirely futile. So far as tbe certiorari proceedings were concerned, tbe record was in no* sense different in legal effect after tbe alteration was made.

Tbe duty of tbe court is to certify up tbe record as it is at tbe time that tbe writ of review was served. It may not alter or add to tbe record and certify tbe altered record as tbe required record. We do* not mean that unimportant changes, such as corrections of spelling, punctuation, and tbe like, may not be made; but tbe safer way is to do* as directed, and send up tbe record as it is; otherwise, without reference to any express stay, there may be contempt in not obeying tbe writ.

For tire reasons herein stated, no contempt was committed, and tbe proceedings in contempt are dismissed.

Dismissed.