State v. Great Northern Utilities Co. , 86 Mont. 442 ( 1930 )

I concur in the result reached in the foregoing opinion, but not with all that is stated in it.

In my opinion the ruling of Judge Poorman was justified for the reason that the relief sought by mandamus could have been obtained in the suit pending in department No. 2 of the district court, wherein the validity of the order in question was attacked by injunction.

The general rule is that, "where a proceeding in equity is pending between the same parties at the time of the application for mandamus, in which suit the relief sought by mandamus could be fully considered, it is proper for the court to decline to issue the writ." (38 C.J. 563.) "The court, having once taken rightful cognizance of a cause, is empowered and required to afford complete relief, even though it incidentally involves the granting of a remedy ordinarily administered by the court in a special proceeding." (21 C.J. 140.) This is but a statement, in another form, of the principle followed by this court that when equity once acquires jurisdiction over the subject matter and the parties, it will retain jurisdiction for the purpose of administering complete relief and doing entire justice. (Raistakka v. Fagerstrom,64 Mont. 173, 208 P. 949.)

The subject matter in the suit pending in department No. 2 is the identical order sought to be put into effect by the mandamus proceeding. Its validity is assailed in the action pending in department No. 2. I know of no reason why application for mandatory relief may not be made before Judge Horsky, who has assumed jurisdiction of the cause wherein the validity of the order is drawn in question. By analogy the case of Durfee v.Harper, 22 Mont. 354, 56 P. 582, supports this view.

This court in Lutey Bros. v. Jackson, 55 Mont. 556,179 P. 459, 460, said: "When the district courts became clothed with authority to grant both legal and equitable relief in the same action, the necessity of seeking relief elsewhere, and thus arraying one court against another, no longer existed. Judge Lynch having acquired jurisdiction of the cause in the first instance, application for appropriate relief, either legal or equitable, should have been made to him."

In my opinion, Judge Poorman, under the circumstances, properly declined to issue the writ, since the relief asked could have been applied for in the action pending in department No. 2 of the district court.