(Download) "State Ex Rel. Johnston v. District Court" by Supreme Court of Montana # Book PDF Kindle ePub Free
eBook details
- Title: State Ex Rel. Johnston v. District Court
- Author : Supreme Court of Montana
- Release Date : January 14, 1933
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 64 KB
Description
Certiorari ? Affidavit ? Contents ? "Party Beneficially Interested" ? Premature Application ? Denial of Writ. Certiorari ? Affidavit must Contain Facts, not Conclusions. 1. One making application for writ of certiorari must in his affidavit state the facts from which the conclusion may be drawn that he is a party beneficially interested (in an estate matter), the bare statement that he is so interested being but a legal conclusion and insufficient. Same ? Issuance of Writ at Instance of "Party Beneficially Interested" ? Meaning of Term. 2. The provision of section 9838, Revised Codes 1921, that the writ of certiorari will only issue at the instance of a party beneficially interested, does not require that the applicant be a party to the action or proceeding in which the court is alleged to have acted without jurisdiction, but if he is able to show that he is interested because of some special or peculiar injury to himself in person or property, the court may in its discretion issue the writ. Same ? Applicant Held not Party Beneficially Interested Under Above Rule. 3. Under the last rule above, held that an executor was not entitled to a writ of certiorari to determine whether the district court had jurisdiction to appoint a guardian of an insane person who was a beneficiary under the will naming relator as executor, it not appearing that any special or peculiar injury could result to relator by reason of the appointment of the guardian, who thereafter instituted proceedings to revoke the probate of the will. Same ? Question Determinable Under Writ. 4. The only question determinable under writ of certiorari is whether or not the district court exceeded its jurisdiction in a proceeding in which the writ may be used. - Page 440 Same ? When Writ Available. 5. The writ of certiorari is not available unless the cause can be continued and completed in the appellate court, and generally not until the proceeding has terminated and the lower court has issued an illegal judgment or order. Same ? Indispensable Requisites to Granting of Writ. 6. The indispensable requisites to the granting of a writ of certiorari are: excess of jurisdiction in the court making the judgment or order complained of; absence of the right of appeal, and lack of any plain, speedy and adequate remedy other than certiorari. Same ? Case at Bar ? Denial of Writ. 7. Writ of certiorari denied, in a proceeding to revoke probate of a will, because no illegal judgment or final order had been made therein; for the further reasons that the proceeding was not one which could be completed in the appellate court but only in the district court, and because the remedy by appeal from an adverse ruling was available to relator. Same ? Premature Application ? Presumption That Trial Court will Rule Correctly. 8. On application for writ of certiorari, prematurely made, and therefore denied, it must be presumed that the district court will rule correctly in its decision.