I dissent. By this proceeding it is sought to prohibit the district court of Deer Lodge county from trying the relators for an alleged contempt of court. The meat of the controversy is the disobedience of an order made by that court in a case in which it had appointed a receiver to take charge of real and personal property in a county (Beaverhead) outside the district over which the court has jurisdiction.
The alleged contempt was not committed in the presence of the court. The affidavit reciting the facts upon which the contempt is based alleges a re-entry by these relators after the receiver had assumed possession under the ex parte appointment by such district court and order thereunder. No adjudication of the right of possession is alleged or claimed. A mere order of the district court under such circumstances could not constitute a foundation for contempt, unless bad faith in the possession by relators is made to appear in the affidavit charging the contempt. It would be the taking of property without trial of a disputed right. *Page 289
In the case of Baker v. Butte Water Co., 40 Mont. 583,107 P. 819, 135 Am. St. Rep. 642, the syllabus succinctly states the law laid down in that case: "Neither contempt proceedings nor a writ of possession were proper remedies to restore plaintiff in an ejectment suit, to the possession of premises adjudged to belong to him and from which he alleged he was ousted by the successor in interest of the defendant in the preceding action, under the assertion of a right not adjudicated theretofore; since proceedings in contempt could not be resorted to to determine a claim not affected by the previous decree, and the writ of possession could only restore him to the rights adjudged to him by it."
Another important observation, not appearing in this case nor found in the Baker-Butte Water suit, raises another very important issue. The real property concerning which the controversy arose is in a different county from that in which the contempt proceeding arose. The Constitution, section 11, Article VIII, under the title "District Courts," provides that their process shall extend to all parts of the state, provided that all actions for the recovery of, the possession of, or quieting title to real property shall be commenced in the county in which it, or any part thereof, affected by such action, is situated.
If the district court of Deer Lodge county has no jurisdiction to try title and has not, in fact, attempted to do so, how can it find anyone guilty of contempt for disobeying its order pertaining to possession? To ask the question is to answer it.
If the allegations of the receivers are true, a delay of justice is in the offing, but to accept such ex parte statements and act upon them as true would be premature. It appears that an action to determine the right of possession to the real property in controversy is now pending in the county of Beaverhead, and a temporary order has been issued by that court awarding possession to the relators herein. It would appear to me, therefore, to be eminently proper to await the finding of the court where the jurisdiction resides, before proceeding further with this contempt proceeding. A finding of contempt by the Deer Lodge county court would permit two directly opposite orders which would present a serious conflict of authority. This conflict we *Page 290 should avoid by all means. Therefore I dissent from the opinion of my associates.