Myhre v. Myhre

548 P.2d 1395, 168 Mont. 521, 1976 Mont. LEXIS 727

• Court: Montana Supreme Court
• Decided: May 4, 1976
• Docket: 13348
• Status: Published

Opinion

ORDER

PER CURIAM:

This is an original proceeding wherein petitioner seeks to have. a citation directed to the defendant charging him with contempt for violations of the restraining order and judgment entered in the district court of Cascade County.

Petitioner asserts that he has no other plain, speedy or adequate remedy at law because the restraining order and judgment at issue is now before this Court by reason of an appeal* docketed as Cause No. 13291 in this Court.

Petitioner cites as authority section 93-9801, R.C.M.1947, which provides:

“* * * The following acts or omissions, in respect to a court of justice, or proceedings therein, are contempts of the authority of the court:

«# # *

“(5) Disobedience of any lawful judgment, order, or process of the court; * *

The contempts alleged here occurred in the district court. While it is true that the restraining order and judgment is now on appeal to this Court a contempt proceeding is entirely independent from the civil action out of which it arose. State ex rel. Bacorn v. District Court, 73 Mont. 297, 236 P. 553; State ex rel. Enochs v. Dist. Court, 113 Mont. 227, 123 P.2d 971.

Therefore this action should be instituted in the district court of Cascade County and petitioner should apply to that court for the relief sought herein.

For this reason since another forum exists wherein petitioner can obtain adequate relief this proceeding is dismissed.

MR. JUSTICE JOHN C. HARRISON, did not participate in this cause.