State ex rel. Seman v. District Court of the Eighth Judicial District

406 P.2d 163, 146 Mont. 296, 1965 Mont. LEXIS 391

• Court: Montana Supreme Court
• Decided: October 1, 1965
• Docket: No. 11019
• Status: Published

Opinion

PER CURIAM.

This is an original application for a Writ of Prohibition or for an Order Staying Proceedings in the following circumstances.

On July 22, 1965, in a divorce proceeding between Relator mother and her husband Karol Eugene Seman, an order giving custody of two children of tender ages to their mother, Relator was made.

On August 19, 1965, the divorce matter was continued indefinitely due to the incompetency of the defendant husband. On September 20, 1965 the defendant husband was adjudged insane and committed to the State Hospital.

On September 28, 1965, one Mrs. Gladys LaLiberty, mother of the defendant husband, made oral application to District Judge Truman G. Bradford for custody of the minor children for the announced purpose of taking them to the State Hospital to visit their father.

Without notice or hearing, District Judge Bradford issued an order as follows:

“Upon oral application of MBS. GLADYS LaLIBEBTY, the mother of the Defendant, and the grandmother of the minor children of the parties named;

“IT IS HEBEBY OBDEBED, that the Plaintiff shall deliver to MBS. GLADYS LaLIBEBTY, on October 2, 1965, at 8:00 o’clock A. M., the two (2) children born of said marriage, ANDBEW SEMAN and NANETTE SE-MAN, and MBS. LaLIBEBTY shall take said minor children to the State Hospital at Warm Springs, Montana for the purpose of visiting the Defendant, KABOL EUGENE SEMAN. The minor children shall be returned to the Plaintiff by MBS. GLADYS LaLIBEBTY by 9:00 o’clock P. M., October 3, 1965.”

The order was served on the Belator mother who, on September 30, moved the District Court to set aside the order and dissolve it or at least to conduct a hearing. This Motion was summarily denied; and today, October 1, 1965, this application was made to this Court.

It appearing on the face of the Order and further upon exhibits of the District Court proceedings that the respondent District Court was entirely without jurisdiction to make any such order (see State ex rel. Taylor v. District Court of Eleventh District, 131 Mont. 397, 310 P.2d 779, 64 A.L.R.2d 1324) it is hereby ordered set aside and dismissed.

Copies of this Order shall be served upon the Honorable Truman G. Bradford, District Judge by Counsel and likewise a copy shall also be served upon Mrs. Gladys LaLiberty.

It is so ordered.