State ex rel. Lalonde v. Lemkie

202 P. 1109, 62 Mont. 51, 1921 Mont. LEXIS 267

• Court: Montana Supreme Court
• Decided: December 21, 1921
• Docket: No. 4,520
• Status: Published

Opinion

Opinion:

PER CURIAM.

On October 29, 1919, on application of the relatrix, the [1] district court of Lewis and Clark county issued an alternative writ of prohibition in a case pending before defendant as justice of the peace, entitled “State of Montana v. Octavia Lalonde,” and requiring him to show cause on the following day why he should not be restrained absolutely from retaining jurisdiction in the action and from proceeding fur-other therein. Upon defendant’s return and after a hearing thereon, the court entered an order in its minutes directing the peremptory writ to issue, but did not render and cause to be entered a final judgment.

By reference to the provisions of the Revised Codes relating to the issuance of writs of mandamus and prohibition (sections 7213-7230), it will be found that the application in each case must terminate in a final judgment awarding the writ or denying it. Section 7098 enumerates the judgments and .orders from which appeals may be taken. No provision is made by it for an appeal from an order granting or denying the peremptory writ. An appeal is allowed only from the final judgment—that is, the formal judgment by which the application is finally determined. The effort of the defendant to bring the proceeding into this court for review by appeal from the order was entirely abortive. The attempted appeal is therefore dismissed.

Dismissed.