I concur in the result reached in the foregoing opinion, but do not agree with the reasons given for the result.
Some of the cases relied on differ from this on the facts. Thus State ex rel. Allen v. Hawkins, 33 Mont. 177, 82 Pac. 952, *589was one wherein an attempt was made to appeal- from an order sustaining a motion to quash an alternative writ of prohibition and sustaining a demurrer to the petition.
Pentz v. Corscadden, 49 Mont. 581, 144 Pac. 157, was an attempted appeal from an order sustaining a demurrer.
State ex rel. Bole v. Lay, 89 Mont. 541, 300 Pac. 238, was an attempted appeal from an order denying an alternative writ of mandamus which was issued ex parte and without having the defendants in court.
The appeal here is from the order or judgment denying a peremptory, not alternative writ and after full hearing by all parties. The attempted appeal in State ex rel. Adamson v. District Court, 128 Mont. 538, 279 Pac. (2d) 691, was from an order issuing a citation. There had been no hearing. The case is not comparable to this.
The case of State ex rel. Lalonde v. Lemkie, 62 Mont. 51, 202 Pac. 1109, contains language supporting the opinion of Mr. Justice ADAIR. In that case the peremptory writ was issued rather than denied as here, but the opinion by way of dictum held that no appeal lies from an order denying a peremptory writ. Whether that case has been impliedly overruled by the holding in Kline v. Murray, 79 Mont. 530, 257 Pac. 465, I express no opinion. I subscribe to the conclusion reached in the majority opinion because I think the trial court ruled properly on the merits. It should be noted that in this case there was no motion made to dismiss the appeal and the point is not urged by counsel in the case. I think we should decide the case on its merits.
Likewise I see no reason for issuing the remittitur forthwith.