
    No. 9768.
    STATE OF MONTANA on the Relation of CLARENCE HANLEY, Relator, v. DISTRICT COURT of the FIRST JUDICIAL DISTRICT of the STATE OF MONTANA, in and for the COUNTY OF LEWIS AND CLARK, and HON. E. E. FENTON, as Judge Presiding Therein in the Cause of “In the Matter of the Application of Clarence Hanley for a Recount of Votes for the Office of Judge of the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark,” Respondents.
    304 Pac. (2d) 620.
    Decided Dec. 6, 1956.
    
      Clarence Hanley, pro se.
   ME. JUSTICES ANGSTMAN and DAVIS.

Eelator has applied for a writ of Supervisory Control or other-appropriate writ to review the action of the Respondent Court and the Hon. E. E. Fenton, the judge presiding therein, in denying his application for a recount of the votes cast in the general election held on November 6, 1956, for the respective candidates for District Judge. While this has been recognized by this court as an appropriate method of reviewing the order of the Respondent Court, yet the Writ of Supervisory Control is a discretionary Writ—does not issue as a matter of course—In re Weston, 28 Mont. 207, 72 Pac. 512—and will not be issued when the application shows on its face that the Trial Judge and Respondent Court were and are not in error on the ruling made.

Such is the proceeding here and accordingly the application is denied.

ME. CHIEF JUSTICE ADAIE:

Dissenting in part but concurring in the denial of the application and dismissal of the proceeding-.

I do not agree that an application addressed to this Court for a Writ of Supervisory Control is an appropriate method of reviewing the order of the District Court here complained of. Hence, while I do not agree with the statements set forth in the second sentence of the above order I concur in the denial of relator’s application and the dismissal of the instant proceeding as directed in the third and last sentence of the above order.

ME. JUSTICE BOTTOMLY:

(dissenting.)

I would grant relator’s application for an appropriate Writ. In my opinion relator’s record filed herein, demonstrates that he has complied with the applicable statutes and the decision of the Court in State ex rel. Thomas v. District Court, 116 Mont. 510, 154 Pac. (2d) 980.  