State ex rel. Shing v. Lenahan

43 P. 712, 17 Mont. 518, 1896 Mont. LEXIS 21

• Court: Montana Supreme Court
• Decided: February 17, 1896
• Status: Published

Opinion

Per Curiam.

On the 22d day of January the relator filed .in this court his petition for a writ of certiorari against J. M. Lenahan, justice of the peace within and for the county of Ravalli, alleging that, in a case pending before said justice of the peace, wherein the state of Montana was plaintiff, and the relator was defendant, the relator filed with the said justice his affidavit for a change of venue from the said justice of the peace, on the ground that he could not have a fair and impartial trial before the said justice, for the reason that the said justice was biased and prejudiced against the relator; that said justice refused to grant the change of venue. His petition further states that, upon the refusal of the said justice to change the venue of the said cause, the relator applied to the Honorable F. H. Woody, judge of the Fourth judicial district court of the state of Montana, for a writ of review against said justice, alleging the facts as hereinbefore set forth as grounds for •the issuance of said writ, but that the said judge of the said district court refused to issue said writ or entertain jurisdiction thereof.

From the return of the said J. M. Lenahan, justice of the peace and respondent, to the writ issued out of this court, requiring the said Lenaban to make return of bis proceedings in the case of the state against the relator above referred to, it appears that the judge of the Fourth judicial district court did entertain jurisdiction of said petition for the writ of review, and did bear counsel on both sides argue the case, and, after such argument by counsel, did enter judgment that the said relator was not entitled to said writ.

This judgment of the district court, quashing the writ of review, was an appealable judgment. (See State ex rel. Johnson v. Case, 14 Mont. 520; Santa Cruz Gap Turnpike Joint-Stock Co. v. Board of Supervisors, 62 Cal. 40; also, § 1941, Code of Civil Procedure, 1895.)

Tbe relator’s remedy was by appeal from this judgment of tbe district court, and the writ must therefore be dismissed. It is so ordered.

Writ dismissed.