No. 80-251
IN THE SUPREME COURT OF THE STATE OF MONTANA
STATE OF MONTANA, ex rel.,
DANIEL MORSE,
Petitioner and Appellant,
JUSTICE COURT OF DEER LODGE COUNTY,
Patrick Laughlin, Justice of Peace,
et al.,
Respondents.
Appeal from: District Court of the Third Judicial District,
In and for the County of Deer Lodge.
Honorable Robert Boyd, Judge presiding.
Counsel of Record:
For Appellant:
Edward D. Yelsa, Anaconda, Montana
For Respondents:
Hon. Mike Greely, Attorney General, Helena, Montana
John Radonich, County Attorney, Anaconda, Montana
William A. Brolin, Anaconda, Montana
Submitted on briefs: February 25, 1981
Decided : APR 9 - 1981
Filed: #$kit -
Y 'Clerk
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.
Plaintiff Daniel Morse appeals from the judgment of the
Third Judicial District Court, Deer Lodge County, quashing a
writ of prohibition issued to stay Justice Court proceedings
pending against plaintiff. We affirm.
During the afternoon of December 26, 1979, plaintiff
was issued a notice to appear and complaint for operating a
motor vehicle while intoxicated on Highway 10-A near Anaconda,
Montana. On December 27, 1979, plaintiff's attorney, Edward
Yelsa, appeared in plaintiff's behalf before the Deer Lodge
County Justice Court and entered a not guilty plea to this
complaint. Plaintiff's attorney further demanded a jury
trial on the charge and the court fixed January 31, 1980, as
the date for the Justice Court trial.
One week before trial, plaintiff's attorney moved the
Justice Court to continue the trial because plaintiff was
hospitalized in the Galen State Hospital Alcohol Treatment
Unit and would be unavailable to appear in court on January
31, 1980. This motion was granted by the court and the
trial date was rescheduled to February 26, 1980.
On February 25, 1980, the day before trial, Deer Lodge
Deputy County Attorney William Brolin moved the court to
continue again the time of trial. This motion was granted.
Plaintiff's attorney was personally notified of the time
for plaintiff's trial by the clerk of Justice Court. Plaintiff's
attorney was in the Justice Court clerk's office on the
afternoon of February 25 and the clerk told counsel of the
change in the date of trial. On the morning of February 26,
1980, however, plaintiff, along with his attorney and witnesses,
appeared in Justice Court for the trial. No trial was held
and plaintiff claims that this failure to hold the trial on
February 26, 1980, amounts to a violation of his constitutional
right to a speedy jury trial. Plaintiff brought action in
District Court seeking a writ of prohibition to stop the
Justice Court from proceeding further in the prosecution of
the drunken driving complaint. In his petition for writ of
prohibition, plaintiff claimed the Justice Court lacked
jurisdiction to proceed further against him. The District
Court initially issued a writ of prohibition arresting the
Justice Court proceedings. Following a show cause hearing
on the petition, however, the District Court quashed the
writ, concluding that a writ of prohibition was legally
inappropriate given the facts of the case. The District
Court found that plaintiff had other appropriate remedies
available.
Plaintiff presents one issue for our review:
Was the judgment entered by the District Court on
behalf of defendant Justice Court denying relief to plaintiff
and granting the motion to quash the writ of prohibition
justified under the state of the record?
Plaintiff contends the failure of the county attorney
to appear and prosecute the alleged drunk driving violation
on February 26, 1980, caused the Justice Court to lose
jurisdiction over this action. This loss of jurisdiction in
the Justice Court, plaintiff contends, eliminates any
possible appeal of an adverse decision to the District
Court. Plaintiff believes, a writ of prohibition is the only
available and appropriate remedy. For support in this
argument, plaintiff relies upon State v. Williams (1915),
50 Mont. 582, 148 P. 333.
We disagree. A writ of prohibition is not the appro-
priate remedy given the state of this record. A writ of
prohibition is available to a litigant only where there is
not a plain, speedy and adequate remedy in the ordinary
course of law. See, State v. District Court (1955), 128
Mont. 538, 279 P.2d 691; section 27-27-102, MCA. In State
v. Booher (1911), 43 Mont. 569, 118 P. 271, we quoted the
New York Court of Appeals and explained that a writ of
prohibition is a unique legal tool:
"The writ of prohibition is not favored by
the courts. Necessity alone justifies it.
Although authorized by statute, it is not
issued as a matter of right, but only in
the exercise of sound judicial discretion
when there - no other remedy .
is - ..
"It is justified only by extreme necessity,
when the grievance cannot be redressed by
ordinary proceedings at law, or in equity,
or by appeal . . . We think the relator had a
remedy which, even if indirect and incon-
venient, deprived him of the right of
prohibition." (Emphasis added.)
In this case, plaintiff has not shown why he could not
assert his jurisdictional defense in the Justice Court
directly or by writ of certiorari in the District Court.
See, section 27-25-102, MCA.
The plaintiff is not entitled to use the extraordinary
remedy of a writ of prohibition in this case. The District
Court here was correct to quash the writ of prohibition.
The judgment of the District Court is affirmed.
We Concur:
Chief Justice