(dissenting):
We dissent.
The Facts. The essential facts in this case stated in their chronological order are as follows:
On January 6, 1958, James A. Cumming, Esq., as counsel for the plaintiffs, commenced this action in the district court for Flathead County, Montana, by filing in the office of the clerk of that court the plaintiff’s complaint herein. At this time plaintiffs also filed in said court and cause the separate affidavits of the plaintiff Frank N. Shaw, of plaintiffs ’ counsel James A. Cumming, and of one John H. Dewell.
The complaint is entitled “Frank N. Shaw, Frederick F. Metcalf, Bernard Horstman, Schuyler C. Rhone, Thomas Storie and Myron L. Gohn, on behalf of themselves and all others similarly situated, Plaintiffs, vs. The City of Kalispell, Montana, a municipal corporation, Claude Walter, as Mayor thereof, W. L. Carlisle, Walter S. Young, Frank B. Hillis, James Gustin, Harry Fisher, Dr. Harrison D. Huggins, T. C. Harmon, and Richard Vick, as Aldermen and City Council thereof, and H. J. Hunt, as City Clerk thereof, Defendants.” The action was assigned district court No. 14437.
The plaintiffs are all taxpayers in the defendant City of Kalispell and in their suit they sought an order to show cause, —a temporary restraining order, — an injunction pendente lite, — -a permanent injunction, — and finally a decree adjudging to be null and void Special Improvement District No. 294 of the City of Kalispell and Resolutions No. 2336 and 2337 of the city council of Kalispell pertaining to such Special Improvement District.
*297The . complaint contains ten separately numbered paragraphs and the prayer for relief. Attached to the complaint and made a part thereof as documentary exhibits are complete copies of the.city council’s Resolutions No. 2336 and 2337.
On January 5, 1958, upon the filing of the plaintiff’s complaint and the above-mentioned three affidavits, the Honprable Dean King, district judge presiding in said district court, issued ex parte, an order restraining the defendants from any and all further acts or proceedings based- upon the purported creation of such Special Improvement District No. 294 of said City of Kalispell, including, but not limited to the sale of the bonds of such Special Improvement District until such time as a hearing should be had and notice be given to the defendants.
Further, and on the same day, January 6, 1958, Judge King also made, issued and caused to be served upon the defendants, an order requiring that defendants show cause before such district court at 10:00 a. m. on January 14, 1958, why defendants should not be restrained and enjoined during the pendency of the action from any and all further acts and proceedings based upon the purported creation of said Special Improvement District No. 294, and also why defendants should not thereafter be permanently restrained and enjoined from any and all further acts and proceedings based on the defendant city’s above Resolutions No. 2336 and 2337.
On January 14, 1958, the hearing on said temporary restraining order and order to show cause so set for that day was continued to January 16, 1958.
On January 16, 1958, the defendants appeared in the action by filing therein a general demurrer to plaintiffs’ complaint, which demurrer by stipulation of counsel for the respective parties litigant, was that day heard, argued and submitted together with the order to show cause and temporary restraining order theretofore issued. All the matters so heard were then taken under advisement by the trial court.
Thereafter on January 28, 1958, Judge King made and caused to be entered an order overruling and disallowing the *298defendants’ demurrer to plaintiffs’ complaint. By such order and ruling Judge King in effect ruled and determined that plaintiffs’ complaint states a good and sufficient cause of action to entitle plaintiffs to be heard and to have the controversy determined.
Had the defendants deemed themselves aggrieved by Judge King’s ruling disallowing their demurrer to plaintiffs’ complaint, defendants were privileged to elect to stand on their demurrer and to suffer judgment to be entered for plaintiffs from which judgment defendants could then have taken an appeal to this court, but this they did not do.
After disallowing defendants.’ demurrer to plaintiff’s complaint, Judge King further considered and reserved his ruling on plaintiffs ’ motion for a temporary injunction until January 80, 1958, on which date he made an order denying the motion but nevertheless granting to plaintiffs, express permission to again present their said motion for a temporary injunction to any district judge who should later assume jurisdiction in the case.
Next, Judge King was disqualified in the action and the Honorable E. B. Foot, the other district judge of that particular judicial district was called in, but on February 3, 1958, Judge Foot, deeming himself disqualified, declined to assume jurisdiction in the cause.
On the following day, February 4, 1958, the defendants, electing not to stand upon their demurrer to plaintiffs’ complaint, filed their answer wherein they' denied all allegations of the complaint not specifically admitted or denied and then separately pleaded therein three alleged affirmative defenses.
To this answer of the defendants, the plaintiffs interposed a demurrer.
"When District Judge E. B. Foot declined to accept jurisdiction the Honorable Victor H. Fall, a district judge for the first judicial district of the State of Montana, was called and on February 13, 1958, he accepted and assumed jurisdiction in the cause.
*299On February 18, 1958, plaintiffs’ demurrer to defendants’ answer was orally argued before Judge Fall by counsel for the respective parties litigant, following which Judge Fall overruled and disallowed snch demurrer and then, with counsel for all parties to the suit present, announced that he would attempt to try this case sometime during the week of March 3, 1958, the exact date of the trial to be later set by the court. To this announcement by Judge Fall for the early trial of this cause, counsel for the respective parties1, in open court, agreed and assented. This demonstrates that on February 18, 1958, Judge Fall and all counsel for the parties litigant then considered that issues had been joined, and that the cause was then in a condition to be set for trial on a day certain, and to be then tried upon the merits and issues presented by the plaintiffs’ complaint and defendants.’ answer thereto.
Judge Fall was disqualified in the cause before a definite day for the trial had been set and the Honorable LeRoy L. McKinnon, the district judge for the tenth judicial district of the State of Montana, was called and, on March 17, 1958, he accepted and assumed jurisdiction in the action.
Thus, by March 17, 1958, when Judge McKinnon assumed jurisdiction the pleadings herein had been fully settled and the cause was, ready to be set for trial on the merits and on the issues joined and presented by the complaint herein and by defendants’ answer thereto.
On March 21, 1958, by order that day made and entered the trial of the action was “set for April 10, 1958, at 10:00 a. m. before Hon. LeRoy McKinnon.”
This order meant that counsel for all parties, together with the witnesses relied upon by them to prove the allegations of' their respective pleadings, were required to be present at theappoined day and hour at a trial to be had before Judge McKinnon.
On April 10, 1958, at the time set therefor, the parties appeared before the Honorable LeRoy L.. McKinnon, district judge presiding, the plaintiffs being represented by James A.. *300Camming, Esq., and the defendants by Merritt N. Warden, Esq., at which time both the parties plaintiffs and the parties defendants- announced that they were ready for trial.
Thereupon the plaintiffs called as their first witness, Thomas Storie, whereupon the following proceedings were had, and after first being duly sworn testified as follows:
“Q. What is your name? A. Thomas Storie.
“Q. You are one of the plaintiffs?
“Mr. Warden: To which, at this time, may it please the Court, the defendants object to the introduction of any evidence in this case on the ground that the complaint in this action completely fails to state facts sufficient to constitute a cause of action, and we would like to be heard on the matter. We think that it is serious enough to be entitled to be considered at this time by the Court. We realize it might take some little time, but we are very sincere in our contention and we would like to present our reasoning to the Court this morning.
“The Court: You wish to do that out of chambers?
“Mr. Warden: It doesn’t make any difference to me, but with that noise going on outside it might be well to have it in there.
“The Court: Very well, court will recess. Are you going to want any argument in the record?
“Mr. Warden: I don’t think so.
(“Counsel and Court retire to jury room, and return after conference.)
“The Court: Court will be in session again. The objection of counsel for the defendants is sustained.
“Mr. Cumming: And to that the plaintiffs object to those exceptions, and we would like leave of court to adjourn until 1:30, at which time we would like to have the court convene again and we make an offer of proof.
“The Court: Very well. Court will be in recess until 1:30.
“(Recess taken to 1:30 P.M.)
*301“The Court: Case 14,437, Frank N. Shaw, et al., versus the City of Kalispell, et al., regularly convened at 1:30.
“Mr. Warden: May it please the Court, I believe at this time defendants should enter an objection to any offer of proof is to what this particular witness would testify to. Normally an offer is made to a certain line of questioning of a particular witness — I don’t know — I am not familiar with any procedure where a general offer of proof on the part of counsel for one side or the other can be made wherein he merely relates what he intends to prove in his entire case.
‘ ‘ The Court: My purpose in suggesting this is to avoid the necessity of calling witness after witness, qualifying them and sustaining objections to the testimony that might be offered. I thought perhaps it would save some time to perfect the record for both sides. I am not sure on the procedure, on the question whether it ever has been done that way or not.
“Mr. Cumming: If the Court please, we would at this time like to make an offer of proof of what we would prove in this case by the testimony of these witnesses we intend to call, and also to show which documents, which other items of real evidence we intend to offer in evidence in this ease, and to show the state what we intend to prove with regard to each of the documents and items of evidence, real evidence, that would be offered.
“The Court: You propose to make that orally or do you have that written out there?
“Mr. Cumming:. I will make that orally.
“The Court: Very well. You are confining this more or less to the question raised in Paragraph VIII here, are you?
“Mr. Cumming: Largely, however, there will be two or three items we will offer concerning the other two questions that were raised.
“The Court: Very well.
“Mr. Warden: For the purpose of the record, defendants object to that method of making the offer of proof on the ground that it is not the proper method and does not go to the *302testimony of any particular witness that has been called to the stand.
“The Court: The objection will be overruled. You may proceed.
“Mr. Cumming': By way of documentary evidence in this case we would offer in evidence a plat of the City of Kalispell, with markings on this plat to show first the city limits, the north portion of the City of Kalispell; second, the boundaries of Special Improvement District 294 of the city of Kalispell. We would offer in evidence the plat of Northridge Heights to show first the city limits of the city of Kalispell; second, the limits and boundaries of Special Improvement District 294, of the city of Kalispell. We would offer in evidence an aerial photograph of the city of Kalispell to show the location of built up areas in the city of Kalispell, also vacant land in the City of Kalispell, the location and character of residential districts of the city of Kalispell, and the location and character of the business districts of the city of Kalispell. We would offer in evidence a certified copy of Resolution No. 2319 of intention of the City Council of the City of Kalispell to .create Special Improvement District No. 291, and to show by that Resolution No. 2314 that Special Improvement District 291 was to be financed exactly, the same as proposed SID 294; * * * By the testimony of witnesses to be called we would show as follows:
“By the testimony of Thomas Storie we would show that he is one of the plaintiffs, owns property in the proposed special improvement district; that he is a taxpayer on that property, that he has protested the creation of the Special Improvement District No. 294, and continues to do so; that his property is approximately a city block in extent, that the property is not benefitted by the proposed improvement. We would also- show by the witness by this lawsuit he is co-plaintiff .purporting to represent the persons who are described in the first and second paragraph of the Complaint.”
Plaintiffs further made an offer of proof as to what plain-. *303tiffs’ witnesses, L. B. McClintick, John Dewell, Frank I. Has-well, Henry Elwood, Myron Cohn and W. T. Lavin, would testify if permitted to take the witness stand. Mr. Warden, of counsel for defendants, objected to each of the above offers of proof. The defendants’ objections to the offers of proof were sustained, whereupon the trial judge, the Honorable LeRoy L. McKinnon, announced that he would take the matter under advisement on the basis of the facts pleaded on the question of the necessity under section 11-2204, R.C.M. 1947, of the defendant City of Kalispell to mail copies of the notice of the passage of a resolution of intention to create a special improvement district to persons purchasing real property within the intended district under an unrecorded contract for deed, when the city and city officials had no actual notice of such ownership interest.
Judge McKinnon announced that he would take under consideration the additional question of the right of the plaintiffs to attack, in this proceeding, the validity of the prior actions of the city council in annexing the area designated as North-ridge Heights to the City of Kalispell, and, if necessary, the validity of such proceedings.
Next the defendants through their counsel, Mr. Warden, made the following motion:
“At this time defendants move for a judgment of dismissal of this action on the merits, plaintiffs having rested and having produced no evidence in this case here material to the issues involved, and the Court having sustained the objection to the introduction of evidence, and objection to the offer of proof made by the plaintiffs. We understand the Court will take that motion under advisement, but thought we would like to make it while the Court is in session and we have formal judgment of dismissal to suggest to the Court.”
The trial judge thereupon granted both parties time in which to prepare, serve and mail to the presiding judge their briefs on the matters reserved by the Court. It was stipulated by counsel for both parties that the presiding judge could *304make his findings and all necessary orders and decrees, including judgment, in chambers at Lewistown.
It must be remembered that at this stage of the proceeding, none of plaintiffs’ witnesses had been’ permitted to take the witness stand or to testify, nor was any other evidence introduced in the cause other than the witness, Thomas Storie, who was permitted only to state his name.
In sustaining the defendants’ objection to the introduction of any evidence in the case on the ground that the complaint did not state facts sufficient to constitute a cause of action, and in rejecting the evidence, Judge McKinnon, in effect, overruled the order of Judge King holding that the plaintiffs’ complaint stated a good cause of action. Thus the plaintiffs were prevented from having their witnesses testify and from introducing any other evidence in the case, and have been prevented from having their day in court and a fair trial of their controversy.
When Judge McKinnon sustained the defendants’ objection to the introduction of any evidence he stopped the trial for the simple reason that thereafter there was nothing whatever to try. If the complaint were so fatally defective that it stated no cause of action there was nothing before the court to warrant any judgment whatever other than a judgment of dismissal of the action.
After Judge McKinnon returned to Lewistown however, he apparently underwent a change of heart and became convinced that the plaintiffs’ complaint did state a good cause of action entitling them to the relief they sought so he about-faced and proceeded to make and cause to be entered findings of fact and conclusions of law wherein he stated:
“Now the briefs having been submitted and considered, and the Court being advised in the premises, the Court finds the facts as follows:
“1. That Frank N. Shaw, Lillian E. Shaw, John H. Dewell and Thelma A. Dewell, each are persons having property *305within, and residing within, the proposed Special Improvement District No. 294 of the City of Kalispell, Montana;
“2. That the Defendants herein failed to give notice of the passage of the resolution of intention, as required by paragraph (2), Section 11-2204, R.C.M. 1947, to any one of the above-named four persons;
“3. That Frank N. Shaw and Lillian E. Shaw each appeared and entered protest and thereby waived the defect of failure of required notice.
“As Conclusions of Law From the Foregoing Facts, The Court finds that the Plaintiffs are entitled to Judgment as prayed.”
Clearly, the above findings of fact are not based upon any evidence in the ease for the simple reason that the court had refused to permit any of plaintiffs’ witnesses to testify and had refused plaintiffs the right to submit any evidence in support of their complaint.
Next, Judge McKinnon made and caused to be entered a decree in accordance with the written findings of fact and conclusions of law as follows:
“It is Therefore Ordered, Adjudged and Decreed: That the proceedings of the Defendants purporting to create Special Improvement District No. 294 of the City of Kalispell, Montana, are invalid and of no effect, and the Defendants are hereby restrained and enjoined permanently from any and all further acts and proceedings therein.
“It is Further Ordered, That Plaintiffs herein recover their costs and disbursements taxed at $65.85.”
The ruling and order of the trial judge sustaining the defendants’ objections to the introduction of any evidence was never reconsidered, recalled or rescinded. Hence, there was no evidence before the court to sustain its findings of fact and conclusions of law or the decree that it assumed to enter.
If, as Judge McKinnon ruled, plaintiffs’ complaint was so defective as to state no cause of action, there was and is nothing upon which to base or sustain a decree in plaintiffs’ favor. *306Such findings, conclusions and decree were and are wholly null and void since Judge McKinnon, by his final actions in this cause has indicated that he was in error in ruling as he did on the defendants’ objections to the introduction of evidence, and in holding that the complaint failed to state a cause of action. In this particular we think he was correct.
However, to correct this obviously erroneous ruling on defendants’ objections to the introduction of evidence, it is first necessary to return to that stage of the proceeding where the error occurred and to set the cause for another trial after first reconsidering and annulling the ruling excluding the introduction of any other evidence. There has never been a trial. None of the plaintiffs’ witnesses were permitted to testify. The plaintiffs were not allowed to introduce any documentary evidence. The complaint in our judgment states a good cause of action and they were entitled, under the law, to have an opportunity to place their witnesses on the stand, to introduce such other evidence as they have and then, and not until then, is the trial judge warranted in making findings of fact, conclusions of law, and in making and entering decree and judgment herein.
Judge King correctly held that the complaint states a good cause of action; Judge Fall correctly held that the defendants answer states a good defense; the pleadings in the case thereupon became, were and are settled and the case was ready for trial.
Judge McKinnon was called in to preside at the trial at which all of the parties agreed that the case was ready for trial. Instead at the outset the defendants prevented the trial by challenging the sufficiency of the initial pleadings, namely that of plaintiffs’ complaint. After it had been determined to state a cause of action by Judge King, the then judge of the District Court of Flathead County, Judge McKinnon, who was invited to and did assume jurisdiction, took the lawsuit and pleadings as they had been ruled upon and determined.
Judge McKinnon erroneously ruled that the complaint was *307insufficient and each and all of his acts subsequent to such ruling were and are null and .void, for without a good complaint entitling the plaintiffs to relief, none can be lawfully granted to him.
Therefore, it is the duty of this court to order all purported rulings, orders, judgment and decree made and entered by Judge McKinnon in this case in the district court, be set aside as null and void and the case remanded for trial, and thereby provide the plaintiffs and defendants with their constitutional and statutory rights to their day in court and a fair trial.