State ex rel. Congdon v. Second Judicial District Court

De Witt, J.

We Lave recently (State ex ret. Murphy v. District Judge, ante, p. 401) so fully defined our views of the province of the writ of certiorari, that we will now do no more than inquire whether the District Court exceeded its jurisdiction in making the two orders complained of.

The greater portion of relators’ argument is made upon the alleged ground that they offered to proceed with the trial, but were not allowed to do so by the court. Indeed, the record does show that they offered to proceed with the trial. But the record also discloses that they moved for a continuance, and that the continuance had been granted at their costs. Delators argue that they rejected the terms imposed by the court, and that the trial upon their offer to go on should have proceeded, and the court had no authority to continue the case, and tax the costs against them. How they could reject an order of the court does not appear. Perhaps they could have declined to accept a continuance on the terms imposed, and have done this by withdrawing their motion for a continuance. They did not ask, or offer, that the order for the continuance should be vacated, which must necessarily have been done if the trial was to be had. They expressly stated that they would not withdraw their motion for a continuance. They placed themselves in the peculiar position of, at the same time, demanding a continuance, and offering to try the case. As to the motives of counsel in this action, nothing appears, nor does it seem to concern this court. But however proper the motives, the fact is plain upon the record, that their attitude toward the court was equivocal. How was the District Court to know of what mind the counsel were when they demanded two things, absolutely inconsistent, in the same breath? It is no answer to say, that counsel were endeavoring to preserve their rights. If the court had jurisdiction to impose costs, counsel must submit to the law. In that contingency, they could have paid the costs and had their continuance; or they could have asked to have the order for the continuance vacated, and if done, could have saved the payment of the costs. On the other hand, if the court had not jurisdiction to impose the costs, counsel had the remedy which they are now invoking. The District Court could not have done other than it did, that is, take the word of counsel as expressed by the solemnity of their motion of record, and disregard their utterances contradicting their motion.

This matter seems very plain to my mind, so much so that noticing it may seem superfluous. But counsel have pressed it upon our consideration, and it is perhaps fair to meet the argument contended for at the bar. Suffice it to say, that we know of no principle of law or rule of practice by which it may be demanded from a court, as was demanded from the District Court in this case, and even here insisted upon, that it do both of two things at once, the performance of one of which is the non-performance of the other, and then complain that the court has done the one demanded by a formal motion. (Hughes v. Dundee M. & T. I. Co. 11 Sawy. 561, and cases cited; Newell v. Meyendorff, 9 Mont. 263.)

I am of opinion that the granting of the continuance was proper and unavoidable, and will inquire whether the court had jurisdiction to impose the costs as it did. If section 253 stood alone, relators might have some reasons for their contention. The section first provides for a continuance on the ground of the absence of evidence, and says nothing about the imposition of terms on a continuance granted for this reason. Then the section goes on and says that the court may postpone the trial for grounds other than the absence of evidence, and may do so upon terms. The argument is left open by this section, that having provided terms on a continuance for causes other than the absence of evidence, that this, by implication, excludes the imposition of terms on a continuance granted by virtue of the absence of evidence. But the matter is made by section 503 part of the same Code, that when a trial is postponed for any cause, the costs occasioned by the postponement may be imposed in the discretion of the court. In section 253 we have a special provision covering one class of cases. In section 503 we find a general provision covering all classes, including that named in section 253. It is not a case of expressio unius, exelusio alterius, because, when we consider the two sections, it is not a fact that there is an expresdo unius, and, consequently, there can be no exclusio alterius. The facts are quite the contrary. Section 503 is an expression of all, and hence an including of all, and the maxim becomes expressio omnium, inclusio omnium. The District Court therefore had jurisdiction, under section 503, to impose costs as it did. No question of their amount or their re-taxation is presented. The order imposing costs being made, the statute, section 486, allows an execution therefor.

I advise that the writ be dismissed.