
    No. 9387.
    STATE ex rel. CITY OF FORSYTH, Relator, v. DISTRICT COURT OF ROSEBUD COUNTY et al., Respondents.
    Decided February 23, 1954.
    267 Pac. (2d) 985.
    
      Mr. Russell K. Fillner, Forsyth, for Relator.
   Per Curiam.

Original application by the State of Montana on the relation of the City of Forsyth, a municipal corporation, relator, against the district court of the sixteenth judicial district of the State of Montana, in and for the County of Rosebud, and the Honorable W. R. Flachsenhar, a judge presiding therein, respondents, seeking a writ of supervisory control to be directed against respondents, commanding them to vacate certain orders overruling demurrers in two certain tort actions Nos. 6116 and 6117, brought against the City of Forsyth and A. W. Devine, seeking to recover actual and exemplary damages for the alleged wilful, wrongful, wanton and malicious shooting of one Charles Kingfisher by A. W. Devine while on duty as a policeman of the said City of Forsyth and while acting in the scope of his employment in attempting to take said Kingfisher into custody.

The defendants in the district court may elect to answer the complaint or they may elect to stand on their demurrers and suffer judgment of dismissal to be entered against them, in which event they may take an appeal. On the other hand if they answer and the cause is tried, the defendants may prevail and in the event that they do not prevail they may take a timely appeal where all matters claimed to be error and prejudicial may be reviewed by this court.

In other words there is the adequate remedy of appeal available both to relator and to the other defendant in the event judgment should go against either.

Accordingly the writ is denied and this original proceeding ordered dismissed.  