
    The STATE OF MONTANA, on the relation of B. C. KINMAN and MARY ANN KINMAN, Relators, v. The DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT of the State of Montana, in and for the COUNTY OF SILVER BOW, and the HONORABLE JOHN B. McCLERNAN, Judge of Department No. 1 of said Court, Respondents.
    No. 10992
    Decided July 19, 1965.
    Rehearing denied August 17, 1965.
    404 P.2d 517
    Joseph P. Monaghan, Butte, for petitioners.
   PER CURIAM.

Original proceeding. Petition seeking the issuance of a writ of review to be directed to the Honorable John B. McClernan, District Judge of the District Court of Silver Bow County, Montana, in a condemnation action commenced on October 9, 1963. Petitioners allege that the named district judge has abused his discretion.

The possibility of the filing of an original proceeding in this matter was first brought to the attention of the Chief Justice of this Court on Thursday, July 8, 1965, by counsel for petitioners and counsel at that time advised the Chief Justice that the case was set for trial before a jury in the district court to commence on July 19th, and counsel was informed by the Chief Justice that if an original proceeding were to be filed it would have to be filed by Friday, July 9, 1965, because during the following week, due to previous commitments, there would not be present a quorum of the court to hear any matters. The petition herein was not filed until Monday, July 12th, and at that time counsel for the petitioners discussed the matter with Mr. Justice Castles of this court and was by him informed that the matter could not be heard until Monday, July 19th, due to the absence of a quorum; counsel was further advised that no stay order could or would be issued by the court with respect to the trial and that counsel should be prepared to proceed with the trial as set.

At 10:00 o’clock this morning counsel appeared before this court and was heard ex parte and during the course of his presentation it appeared that a pre-trial hearing had been set and held last week, but that neither counsel nor his clients had attended the same; it further appeared that neither counsel nor his clients were being represented at the trial of the action in the Silver Bow County District Court, presumably now proceeding in their absence. It further appears that one of petitioners is a licensed attorney of this court.

As this court understands counsel, it is his position generally that petitioners are being denied the due process of law. By Ms own allegations he is being granted every process of law including a jury trial, but neglects and refuses to appear.

Although we have been furnished with no record of proceedings, we understand that the jury trial setting has remained fixed by Court order for some time. Considering this, and considering the long period of time the proceeding has been pending, since October 9, 1963, it is clear that failure to prepare for trial is inexcusable.

On July 6, 1965, counsel for petitioners was notified that the Honorable Sid Stewart, District Judge of the Third Judicial District, had been called in to preside in the action following the disqualification of the Honorable Nat Allen, District Judge of the Fourteenth Judicial District, on July 2,1965, by the petitioners. Since counsel for petitioners received personal notice of the calling in of Judge Stewart, who has not been disqualified in accordance with the provisions of section 93-901, R.C.M.1947, as amended, he is the district judge presiding in this cause in the district court.

No cause appearing for the issuance of a writ of review, the same is denied and this proceeding ordered dismissed.

ORDER

PER CURIAM.

Relators on July 29, 1965, filed a petition for rehearing. The court has been informed that the matters raised therein were again before the district court and disposed of to the satisfaction of relators.

The petition is therefore denied.  