State Ex Rel. Walker v. Board of Com'rs

This proceeding found its way into the district court by application for a writ of certiorari to review the action of the board of county commissioners in ordering a certain road abandoned. In consequence the provisions of section 9836 et seq. relating to such writs must be resorted to in considering what the court must or may do.

Before considering the merits of the questions presented I desire first to point out that in my opinion the appeal does not present some of the questions considered by my associates.

My associates say, first, that the appeal is from a final judgment and, second, that the record consists of the judgment roll as defined in section 9409, Revised Codes. As to the first point the record is not clear. The notice of appeal recites that it is from a certain order made and entered on the 13th day of January 1947. It does not purport to be an appeal from a judgment. As to the second point, section 9846, which relates specifically to certiorari proceedings, specifies what the judgment roll must contain in such proceedings and the general statute, section 9409, has no application.

Cases are legion that a special statute rules a general one. This point becomes important because if section 9846 controls then respondents' motion to strike from the records everything not enumerated therein should be sustained. State ex rel. Duffy v. Justice of the Peace Court, 69 Mont. 450, 222 P. 1055. And see Miners National Bank of Butte v. Proulx, Mont.,176 P.2d 267.

I think we should confine our consideration to the questions presented by the judgment roll as defined in section 9846 and if we do the conclusion reached in the majority opinion is erroneous on the point considered by it. But if we consider section *Page 422 9409 as controlling and consider everything in the record as properly before us, I still think Judge Harwood's action should be upheld so far as it is considered in the majority opinion.

I concede that in an ordinary action it has been held that an order dismissing it is equivalent to a final judgment. State ex rel. Meyer v. District Court, 102 Mont. 222, 57 P.2d 778. But in a certiorari proceeding the only character of judgment authorized by statute after hearing is one "either affirming or annulling, or modifying the proceedings below." See section 9844, Revised Codes. The court has no authority to dismiss the proceedings. The order sustaining the motion to quash was not a final judgment even though, additionally, it purported to dismiss the proceedings. State ex rel. Allen v. Hawkins, 33 Mont. 177,82 P. 952; Pentz v. Corscadden, 49 Mont. 581, 144 P. 157; State ex rel. Lalonde v. Lemkie, 62 Mont. 51, 202 P. 1109; State v. Lay, 89 Mont. 541, 300 P. 238.

Hence until the entry of a final judgment Judge King had the right to allow the filing of an amended application. This he apparently did or he would not have issued the alternative writ on the amended application. The record, I think, reveals quite clearly that the reason Judge King sustained the first motion to quash was because he thought petitioners did not show that they were parties in interest. It was in no sense a judgment on the merits. It was the same as sustaining a demurrer to the application and unless the application showed on its face that it could not be amended to show a proper interest the amendment should be allowed as was done here.

Since the majority opinion does not consider other questions, no useful purpose will be subserved in considering them here.

Rehearing denied January 12, 1948. *Page 423