No. 80-40
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
STATE OF MONTANA ex rel.,
HUGH V. ANDERSON,
Relators,
THE DISTRICT COURT OF THE
EIGHTH JUDICIAL DISTRICT OF
THE STATE OF MONTANA et al.,
Respondents.
ORIGINAL PROCEEDING:
Counsel of Record:
For Relator:
Jardine, Stephenson, Blewett and Weaver, Great Falls,
Montana
For Respondents:
J. Fred Bourdeau, County Attorney, Great Falls,
Montana
Submitted: April 24, 1980
~ecided
:
MAY I2 ?g@
- - .-
Mr. Chief Justice Frank I. Haswell delivered the Opinion of
the Court.
Relator Hugh V. Anderson was found in contempt of court
in the Cascade County District Court and fined $50.00. He now
applies for a writ of certiorari or supervisory control to re-
view the judgment of contempt.
Relator, a urological surgeon, while on "substitute duty"
in the emergency room of Columbus Hospital in Great Falls, Montana,
had treated one Robert L. Renville, who was at the time under
arrest. Thereafter, relator was served with a subpoena to attend
a trial regarding Renville. Subsequently, during a telephone con-
versation relator told a deputy county attorney that he had little
independent recollection of the incident, but would be willing to
testify to what recollection he had and the hospital records. The
deputy county attorney said he would contact relator later. Some-
time after that, relator received a message that the trial would
not be held as scheduled.
On or about December 4, 1979, a deputy sheriff delivered
a subpoena and a letter concerning Renville's January 14, 1980,
trial to relator's secretary. In an affidavit the deputy sheriff
stated that he believed the secretary to be more than 18 years
of age. On about December 5, the secretary showed the subpoena
and letter to the relator. The letter was from the deputy county
attorney stating that relator would be contacted regarding his
testimony ". . . at a time closer to the trial."
The deputy county attorney was not able to contact relator
despite three attempts. On January 14, 1980, trial was commenced
in the case of State v. Robert Renville. When relator was called
the bailiff informed the judge that the relator was not present.
The judge ordered the prosecuting attorney to file an affidavit
and have relator brought before the District Court.
On January 15, 1980, the District Court judge held the
hearing on the contempt charge concerning relator. Following a
hearing, the relator was found in contempt for not being present
at the January 14 trial. He was fined $50.00.
This case presents three issues:
(1) Whether this Court may consider this matter on either
a writ of certiorari or a writ of supervisory control?
(2) Whether the finding of contempt by the District Court
was in excess of jurisdiction because the subpoena was improperly
served?
(3) Whether there was substantial evidence to support the
finding of contempt?
Section 3-1-523, MCA, provides that there is no appeal
from a judgment and order of contempt, however, such actions may
be reviewed on a writ of certiorari.
Section 27-25-202, MCA, states:
"The writ of review must command the party to whom
it is directed to certify fully to the court issuing
the writ, at a specified time and place, a transcript
of the record and proceedings (describing or referring
to them with convenient certainty), that the same may
be reviewed by the court, and require the party, in
the meantime, to desist from further proceedings in
the matter to be reviewed."
In the present case we do not have a fully certified tran-
script of the record and proceedings. Consequently, the writ of
certiorari is not a proper remedy. Our inquiry into the case,
however, does not stop at this point. Art. VII, 52 (2), 1972 Mon-
tana Constitution, provides that this Court has general super-
visory control over all other courts. In previous cases we have
said that this Court's supervisory power may be granted in contempt
cases when the relator is barred from using a writ of certiorari.
See State ex rel. Porter v. District Court (1950), 123 Mont. 447,
215 P.2d 279; State ex rel. Sutton v. District Court (1902), 27
Mont. 128, 69 P. 988. In the present case we grant the writ of
suprevisory control.
The relator contends that the District Court lacked
jurisdiction to find relator in contempt because the subpoena
was not properly served. Section 46-15-102, MCA, provides that
a subpoena ". . . may be served . . . by any person who is not
a party and who is not less than 18 years of age." In addition,
"Service of a subpoena shall be made by delivering a copy there-
of to the person named .. ." In the present case the subpoena
was delivered by the deputy sheriff to the relator's secretary.
The relator admitted that the secretary showed him a copy of the
subpoena and the letter from the deputy county attorney. There
is no dispute that the secretary was over 18 years of age and was
not a party to the action. This amounts to a fulfillment of the
requirements set out in section 46-15-102, MCA. Additionally,
the relator knew of the trial and was aware of the subpoena. Dur-
ing the contempt hearing the relator testified that he ". . .
totally forgot about it." This amounts to disobedience of a sub-
poena duly served and the District Court judge was well within his
jurisdiction when he found the relator in contempt. Section 3-1-
(r 1
5 0 MCA.
The relator next contends that the letter attached to the
subpoena modified and qualified the effect of the subpoena. The
letter accompanying the subpoena stated that a deputy county
attorney would contact the relator ". . . at a time closer to
trial." The subpoena commanded relator to appear in court on
January 14, 1980, at 9:30 a.m. The letter in no way modifies or
qualifies the express command of the subpoena. The letter does
not make the relator's appearance in court contingent upon being
contacted by the deputy county attorney.
Finally, relator contends that there is no evidence to sup-
port the finding that he was aware of the fact that he was to appear
in court at the time set for trial. The relator admitted at the
hearing that he had seen a copy of the subpoena and the letter
from the deputy county attorney. Both of these state the time
and place of the trial. This constitutes sufficient evidence
to support the finding of contempt.
Af f irmed.
Chief Justice
We concur: