MR. JUSTICE STEWART
delivered tbe opinion of tbe court.
This proceeding was instituted by Thomas G. Stimatz, relator, for a writ of review or some other appropriate writ, in tbe matter of tbe guardianship of Harold Le Roy Stimatz, a son of relator and a minor of the age of nineteen years. This court issued a writ commanding tbe district court to certify or cause to be certified a transcript of all of tbe papers and files in its possession, including all of tbe evidence taken in tbe proceeding in question. Pursuant to tbe writ a return was made certifying all of such records in tbe possession of tbe district court, but without any of tbe testimony given and received at tbe bearing. The return recited that tbe evidence was not recorded by tbe court reporter, and that no record was made of tbe testimony, and hence that it was impossible to make return thereof; that neither party requested that a stenographic record of tbe testimony be made; and that in tbe absence of such a request tbe district court proceeded in tbe “usual way” to bear tbe evidence without a stenographic record being made.
Tbe record shows tbe following facts: Geraldine Cullman filed a petition for appointment of herself as guardian, alleging that she was tbe nominee of the minor. Relator filed objections thereto upon tbe ground that be was a competent and suitable
person to be appointed guardian, and that, as the father of the minor, he was legally entitled to such appointment by virtue of section 10405, Eevised Codes. Eelator also filed a petition asking that he be appointed guardian, and Geraldine Cullinan filed objections thereto upon two grounds, viz.: that relator was not a fit and proper person to be appointed guardian, and that the minor had nominated her to be his guardian. As the matter then stood, there were petitions by both parties and objections by both. The court proceeded to hear both petitions and objections together. The objections of relator to the Cullinan petition were overruled, and the Cullinan objections to the appointment of relator were sustained without stating which of the two grounds was the basis for the court’s action. The court then proceeded to appoint Geraldine Cullinan.
The petition here alleges the history of the matter and, in addition, sets forth that Geraldine Cullinan did not offer any testimony supporting her objections to the appointment of relator; that there was no record of the testimony made, and, therefore, there was no available record upon which to base an appeal; that an appeal without such record would be useless; that petitioner had no plain, speedy, or adequate remedy at law, or otherwise; and that the trial judge failed to preserve the record of the testimony and by reason thereof denied and deprived relator of any record on which to make an appeal.
The respondents filed a motion to quash on the ground that the affidavit filed by relator herein was insufficient, and that relator could have been afforded complete relief by appeal. The first question is whether the petition is sufficient to justify the exercise of the extraordinary powers of this court for the relief of the relator for his alleged wrongs.
Eelator asserts that he is the father of the minor and is, therefore, entitled to preference in the matter of his guardianship, if he is competent to transact his own business and is otherwise suitable. He alleges that there was no evidence adduced supporting the objections that he was not a suitable person, and, therefore, assumes that the order of the court
was based solely upon tbe statutory right of the minor to nominate his own guardian. (Sec. 10403, Rev. Codes.)
It must be obvious that this court cannot ascertain from the record just which one of the two propositions moved the court in the exercise of its power to appoint a guardian. Admitting for the purpose of the sufficiency of the petition that there was no evidence touching the personal qualifications of relator, could he have had relief by appeal? He alleges that he could not have had such relief because of the absence of a record of the testimony. This fact, however, does not establish the fact of the absence of a remedy, because relator could have caused to be prepared and brought before this court a sufficient transcript of the evidence in the way of a common-law or bystander’s bill of exceptions.
(State
v.
Hogan,
100 Mont. 434, 49 Pac. (2d) 446.) But relator asserts that it was the duty of the trial court to have the evidence taken and preserved, and that he was prevented from taking an adequate appeal because of lapse of duty by the court. It is true that section 8929, Revised Codes, makes it the duty of the court stenographer to take full stenographic notes of testimony, except when the judge dispenses with such service; but this statute lodges a certain discretion in the trial court in the absence of a request by one of the parties. Had there been such a request and a refusal thereof, there would have been an abuse of discretion which could have been corrected at the time by proper procedure.
(State
v.
Hogan,
supra.)
There is no allegation in the petition that a request was made by relator, and he cannot now complain that there was an abuse of the court’s discretion. He relies, however, upon sections 8930 and 8931, Revised Codes, for the preservation of a record. These sections cannot afford him relief because they have relation to circumstances when the official stenographer is in fact acting and taking a record. They do not relate to the duty of the stenographer to attend and take testimony. However, in view of the fact that it is always important to preserve a record of the proceedings in any controverted matter, we believe that a trial court, in the absence of an express stipulation waiving the
taking of the evidence, should inquire of the contending parties if a record is desired, and the records of the court should then be made to show the express waiver if in fact such waiver is made. In other words, the record of the proceeding should show why the record of the testimony was not made, i. e., whether by agreement or stipulation of the parties, or on account of the exercise of the court’s discretion.
Part of the procedure in guardianship matters is contained in the chapters with relation to guardians and wards (secs. 10401 et seq., Rev. Codes). One of the sections in this subdivision of the Codes (10463) provides that the provisions of the general Probate Practice Act (secs. 10018 to 10401) shall govern the practice in guardianship matters in so far as applicable. Sections 10365 and 10366 provide that appeals in probate matters are to be taken in the same manner as ordinary appeals, and the provisions of sections 9008 to 9832, relative to new trials and appeals, shall apply to probate sections 10018 to 10464. Section 10367 provides that probate appeals must be taken within sixty days after the order or judgment is entered. Section 9731 specifically provides for an appeal from an order appointing a guardian, or an order granting or refusing to grant, revoking or refusing to revoke, letters of guardianship. Section 9732 again fixes the time for appeal at sixty days.
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MR. JUSTICE STEWART
delivered tbe opinion of tbe court.
This proceeding was instituted by Thomas G. Stimatz, relator, for a writ of review or some other appropriate writ, in tbe matter of tbe guardianship of Harold Le Roy Stimatz, a son of relator and a minor of the age of nineteen years. This court issued a writ commanding tbe district court to certify or cause to be certified a transcript of all of tbe papers and files in its possession, including all of tbe evidence taken in tbe proceeding in question. Pursuant to tbe writ a return was made certifying all of such records in tbe possession of tbe district court, but without any of tbe testimony given and received at tbe bearing. The return recited that tbe evidence was not recorded by tbe court reporter, and that no record was made of tbe testimony, and hence that it was impossible to make return thereof; that neither party requested that a stenographic record of tbe testimony be made; and that in tbe absence of such a request tbe district court proceeded in tbe “usual way” to bear tbe evidence without a stenographic record being made.
Tbe record shows tbe following facts: Geraldine Cullman filed a petition for appointment of herself as guardian, alleging that she was tbe nominee of the minor. Relator filed objections thereto upon tbe ground that be was a competent and suitable
person to be appointed guardian, and that, as the father of the minor, he was legally entitled to such appointment by virtue of section 10405, Eevised Codes. Eelator also filed a petition asking that he be appointed guardian, and Geraldine Cullinan filed objections thereto upon two grounds, viz.: that relator was not a fit and proper person to be appointed guardian, and that the minor had nominated her to be his guardian. As the matter then stood, there were petitions by both parties and objections by both. The court proceeded to hear both petitions and objections together. The objections of relator to the Cullinan petition were overruled, and the Cullinan objections to the appointment of relator were sustained without stating which of the two grounds was the basis for the court’s action. The court then proceeded to appoint Geraldine Cullinan.
The petition here alleges the history of the matter and, in addition, sets forth that Geraldine Cullinan did not offer any testimony supporting her objections to the appointment of relator; that there was no record of the testimony made, and, therefore, there was no available record upon which to base an appeal; that an appeal without such record would be useless; that petitioner had no plain, speedy, or adequate remedy at law, or otherwise; and that the trial judge failed to preserve the record of the testimony and by reason thereof denied and deprived relator of any record on which to make an appeal.
The respondents filed a motion to quash on the ground that the affidavit filed by relator herein was insufficient, and that relator could have been afforded complete relief by appeal. The first question is whether the petition is sufficient to justify the exercise of the extraordinary powers of this court for the relief of the relator for his alleged wrongs.
Eelator asserts that he is the father of the minor and is, therefore, entitled to preference in the matter of his guardianship, if he is competent to transact his own business and is otherwise suitable. He alleges that there was no evidence adduced supporting the objections that he was not a suitable person, and, therefore, assumes that the order of the court
was based solely upon tbe statutory right of the minor to nominate his own guardian. (Sec. 10403, Rev. Codes.)
It must be obvious that this court cannot ascertain from the record just which one of the two propositions moved the court in the exercise of its power to appoint a guardian. Admitting for the purpose of the sufficiency of the petition that there was no evidence touching the personal qualifications of relator, could he have had relief by appeal? He alleges that he could not have had such relief because of the absence of a record of the testimony. This fact, however, does not establish the fact of the absence of a remedy, because relator could have caused to be prepared and brought before this court a sufficient transcript of the evidence in the way of a common-law or bystander’s bill of exceptions.
(State
v.
Hogan,
100 Mont. 434, 49 Pac. (2d) 446.) But relator asserts that it was the duty of the trial court to have the evidence taken and preserved, and that he was prevented from taking an adequate appeal because of lapse of duty by the court. It is true that section 8929, Revised Codes, makes it the duty of the court stenographer to take full stenographic notes of testimony, except when the judge dispenses with such service; but this statute lodges a certain discretion in the trial court in the absence of a request by one of the parties. Had there been such a request and a refusal thereof, there would have been an abuse of discretion which could have been corrected at the time by proper procedure.
(State
v.
Hogan,
supra.)
There is no allegation in the petition that a request was made by relator, and he cannot now complain that there was an abuse of the court’s discretion. He relies, however, upon sections 8930 and 8931, Revised Codes, for the preservation of a record. These sections cannot afford him relief because they have relation to circumstances when the official stenographer is in fact acting and taking a record. They do not relate to the duty of the stenographer to attend and take testimony. However, in view of the fact that it is always important to preserve a record of the proceedings in any controverted matter, we believe that a trial court, in the absence of an express stipulation waiving the
taking of the evidence, should inquire of the contending parties if a record is desired, and the records of the court should then be made to show the express waiver if in fact such waiver is made. In other words, the record of the proceeding should show why the record of the testimony was not made, i. e., whether by agreement or stipulation of the parties, or on account of the exercise of the court’s discretion.
Part of the procedure in guardianship matters is contained in the chapters with relation to guardians and wards (secs. 10401 et seq., Rev. Codes). One of the sections in this subdivision of the Codes (10463) provides that the provisions of the general Probate Practice Act (secs. 10018 to 10401) shall govern the practice in guardianship matters in so far as applicable. Sections 10365 and 10366 provide that appeals in probate matters are to be taken in the same manner as ordinary appeals, and the provisions of sections 9008 to 9832, relative to new trials and appeals, shall apply to probate sections 10018 to 10464. Section 10367 provides that probate appeals must be taken within sixty days after the order or judgment is entered. Section 9731 specifically provides for an appeal from an order appointing a guardian, or an order granting or refusing to grant, revoking or refusing to revoke, letters of guardianship. Section 9732 again fixes the time for appeal at sixty days. It is then plain that the alleged injustices of which relator complains could have been alleviated, and proper and adequate relief could have been afforded by protection of the record, or by a common-law bill of exceptions as the basis for an appeal in the regular mode.
We are then brought to the question whether this court by supervisory control, or other extraordinary writ, may accomplish the result which could have been accomplished by appeal. In other words, is the fact that there is now no appeal available by virtue of the lapse of time, an emergency which will warrant the use of the extraordinary powers of this court? We think not. Usually, resort to an extraordinary writ is not proper where there is an adequate appeal.
(State ex rel. Meyer
v.
District Court,
102 Mont. 222, 57 Pac. (2d) 778;
State ex
rel. Public Service Com.
v.
District Court,
103 Mont. 563, 63 Pac. (2d) 1032.) But there are exceptions to that rule. Where it is obvious that the right of appeal is not adequate and could not afford proper relief, although it did exist, the writ may-still issue.
(State ex rel. Gold Creek Min. Co. v. District Court,
99 Mont. 33, 43 Pac. (2d) 249, and cases therein cited.) The cases to this effect are based upon the peculiar facts existent in each case to the effect that the appeal would not have afforded adequate relief, and none of them is based upon the fact that the complaining party allowed the time for appeal to elapse without availing himself of the statutory right of appealing in the usual manner. Therefore, since there is no question of inadequacy of appeal here, we are not required to pass upon that point.
There is nothing to show that the appeal would have been inadequate if a proper record had been made upon which to base it. This brings us to the proposition that relator could have had complete and adequate remedy by appeal and, therefore, that he cannot now invoke the emergency power of this court (see
State ex rel. Meyer
v.
District Court,
supra), and to do so would allow him to take advantage of his own laches; all of which points to the necessity of our sustaining the motion to quash.
The allegation of relator that he has no other remedy is without merit. As we have indicated, the court heard all petitions and objections thereto, as was its duty. However, in sustaining the objections to the appointment of relator the court did so without specifically saying whether it based its action on the ground of relator’s unfitness, or on the basis of the right of the minor to nominate his own guardian. The objections were generally sustained, but the court recited in the order that the minor had filed his nomination of Geraldine Cullinan to be his guardian, and it is therefore argued here that the action was based solely upon the statutory right of the minor, without relation to the fitness of relator, and that because no evidence was taken as to the fitness of relator, he is now entitled to a construction of all the statutes with relation to the matter. In other words, it
is argued that the court followed section 10402, and disregarded section 10405, Revised Codes; and we are, and by reason thereof, asked to invoke the provisions of the latter section as against those of the former, and this in a case wherein there is no testimony before the court.
The important thing is that, after all, the major authority is vested in the court to appoint a proper guardian. Of course, the discretion of the court must be substantially controlled by our Code provisions already adverted to. Its discretion is in a sense restricted. From the record here it is apparent that, possibly, the court did not fully appreciate and apply the restrictions. If the charge be true that it merely followed the provisions of section 10402, without regard to the question of fitness of relator, then it follows that the qualifications of relator were not actually passed upon by the court, and the order refusing to appoint him did not render that issue
res judicata.
It is apparent, therefore, that relator still has a plain, speedy, and adequate remedy at law by virtue of sections 10083 et seq. of the Probate Practice Act by petitioning for the ousting of the guardian without being met by a plea of
res judicata.
Without a record the court below is in no better position than this court to determine the basis of the appointment. It is obvious that if the appointment were based solely upon the statutory right of the minor to appoint his oto guardian, the Probate Practice Act still gives relator the right to assert his statutory preference at any time. (Secs. 10083 et seq., Rev. Codes.) These sections remove the matter from the rule that the action of the trial court must be sustained by this court if any ground exists therefor in the record, and likewise they will prevent the application of the rule of
res judicata.
In that event it will be the duty of the court to interpret and reconcile the pertinent statutes (secs. 10402 to 10405). The application of these statutes, when construed, may develop the necessity to hear evidence on the question of the father’s fitness.
Finally, it is obvious that relief cannot be afforded to relator by an extraordinary writ of this court, but there is available to him a proper procedure in the district court which will afford
him a plain, speedy, and adequate remedy for all his wrongs, which may be followed by a proper appeal to this court in the ordinary manner.
The motion to quash is sustained, and the application for the writ is denied.
Mr. Chief Justice Sands and Associate Justices Anderson and Morris concur.