I dissent. A brief review of the decisions of this court relative to the issuance of the writ of supervisory control will amaze *Page 106 the student of our jurisprudence when the exacting precision characterizing the exercise of the function by the court in earlier days is compared with the ultraliberal practice pursued at the present time. I have no objection to some modification of the strict exercise of the power as compared with early procedure, but am of the opinion that more cogent reasons should exist than confront us in the present instance before the writ should issue.
The first instance in which the writ was issued, so far as I am able to determine, was in the case of State ex rel.Whiteside v. First Judicial District Court, 24 Mont. 539,63 P. 395. The opinion of the court was by Chief Justice Brantly. The matter is approached with that judicial temperament and deliberate consideration characteristic of that great justice. At page 559, after citing a number of cases, he says: "It is hardly necessary to add that the `superintending control' given by the constitutional provision now under consideration refers primarily to courts, not to parties or cases. Its purpose is to keep the courts themselves `within bounds,' and to insure the harmonious working of our judicial system. It was not designed to secure the review of judgments in connection with ordinary appellate pro-jurisdiction; * * *."
Again, in State ex rel. City of Helena v. Helena WaterworksCo., 43 Mont. 169, 115 P. 200, 201, Chief Justice Brantly, speaking for the court, said: "The supervisory power — which is also appellate in its nature — was designed to control summarily the course of litigation in the inferior courts and prevent an injustice being done through a mistake of law or a willful disregard of it when there is no appeal from the erroneous order, or the relief obtained through the appeal would be inadequate."
After the Whiteside Case in 24 Montana was before the court, a number of important instances arose where the writ was either issued, or it was under consideration, up to and including 62 Montana Reports. The more important cases are referred to and portions thereof recited in substance as follows: *Page 107
"The writ of supervisory control can be employed only in cases to remedy manifest wrongs which cannot be otherwise righted; hence a writ of supervisory control will not be granted to correct alleged errors in the decisions of a trial court that a complaint does not state a cause of action, discharging the jury, and entering judgment for defendant, the same being reviewable on motion for new trial or on appeal." (State ex rel. Harris v.District Court, 27 Mont. 280, 70 P. 981.)
"The writ of supervisory control is issued where the lower court is acting within its jurisdiction, but erroneously, and doing a party a gross injustice from which there is no appeal, or where an appeal would not grant a person adequate relief." (Inre Weston, 28 Mont. 207, 72 P. 512.)
"The writ of supervisory control should be seldom used, and then only in the greatest emergency where palpable injustice has been done and there is no other remedy provided by the law." (State ex rel. Morse v. Seventh Judicial District Court,29 Mont. 230, 74 P. 412.)
"The writ of supervisory control is seldom issued, and only when other writs and remedies are not adequate and when the threatened acts of the lower court are so arbitrary and unlawful as to be tyrannical." (State ex rel. Heinze v. DistrictCourt, 32 Mont. 579, 81 P. 345.)
"The writ of supervisory control issues to prevent a failure of justice, by supplying a means for the correction of manifest error committed by the trial court within jurisdiction, where there is no other adequate remedy and gross injustice is threatened." (State ex rel. Hubbert v. District Court,54 Mont. 472, 171 P. 784.)
"The writ of supervisory control issues only to correct rulings made by the district court acting within jurisdiction, where there is not an appeal or the remedy by appeal cannot afford adequate relief, and gross injustice is threatened as the result of such rulings." (State ex rel. Carroll v. DistrictCourt, 50 Mont. 428, 147 P. 612.)
"The writ of supervisory control issues to review an action of the district court of a character so arbitrary and unlawful *Page 108 as to be tyrannical." (State ex rel. Coleman v. DistrictCourt, 51 Mont. 195, 149 P. 973.)
"The writ of supervisory control is in the nature of a summary appeal, and will issue only when there is no plain, speedy or adequate remedy at law by appeal or other constitutional writ." (State ex rel. Rubin v. District Court, 62 Mont. 60,203 P. 860.) (The above quotations are taken from the 1925 edition of the Montana Digest under the heading "Supervisory Control.")
Whenever a petition is presented for the writ, it should not be considered by this court if any question of fact is involved. This court is an appellate court and not a fact-finding body. So far as I am able to determine from the petition in the proceeding before us, there is no remedy that our laws provide for such rights as are involved which cannot be determined in the district court subject to appeal, and any delay that may arise will not, in my opinion, deprive the plaintiffs of any right to which they can show they are entitled.