
    THE STATE OF MONTANA on Relation of the STATE BOARD OF EQUALIZATION, and DAN FULTON, JOHN C. ALLEY and J. MORLEY COOPER, as Members of and Constituting the State Board of Equalization, Relators, v. the DISTRICT COURT OF THE FOURTH JUDICIAL DISTRICT of the State of Montana, in and for the County of Mineral, and the HONORABLE E. GARDNER BROWNLEE, one of the Judges Thereof, Respondents.
    
      No. 10807
    Submitted June 9, 1964.
    Decided June 17, 1964.
    398 P.2d 457.
    William Douglas (argued), Helena, for relators.
   PER CURIAM.

Original proceeding.

Petition for writ of certiorari, or other appropriate writ, filed by relators, wherein it appears that the respondent district court, following an ex parte hearing, caused to be made and entered on June 3, 1964, an order in cause No. 1695, filed in the district court of the Fourth Judicial District of the State of Montana, in and for the County of Mineral, entitled “THE STATE OF MONTANA on relation of the STATE BOARD OF EQUALIZATION, and DAN FULTON, JOHN C. ALLEY and J. MORLEY COOPER, as members of and constituting the STATE BOARD OF EQUALIZATION, Plaintiffs, vs. T. H. WARNKEN, as County' Assessor of the County of Mineral, the BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY, and CHARLES H. M. JENSEN, WM. J. DAIGLE, and O. J. PIKE, as members of and constituting the BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY,, Defendants,” which said order assumed to dismiss the action..

It further appears from the petition herein that no notice of any kind was given the plaintiffs in said action, being the relators herein, of any contemplated hearing to be held by the district court, nor were said plaintiffs represented in court at the time of the ex parte hearing, nor had any type of pleading been served by any defendants therein; that by reason thereof relators contend they have been deprived of their day in court and that the district court in making and entering-its order acted in excess of its jurisdiction. It is further alleged that the relators have no speedy or adequate remedy at law, and that the acts of the defendants sought to be restrained by the injunction sought in said district court action will continue unless the order of the district court is vacated, and set aside and the action reinstated.

It has been further made to appear that the Honorable E.. Gardner Brownlee, the district judge, is on vacation on the-east coast, as is the court reporter of the district court who; took the record at the time of the ex parte hearing, if any record there be.

By reason of the allegations of the petition, the exhibits thereto annexed, and the showing made to this court upon the ex parte hearing herein, it appears that the respondent court and the respondent county officers should be required to appear before this court and show cause, if any they have, why the order entered by said district court should not be set aside and held for naught and the cause reinstated, and that in the interim the order should be stayed until the further order of this court;

NOW THEREFORE, IT IS HEREBY ORDERED that the respondents herein, together with T. H. WARNKEN, as County Assessor of the County of Mineral, the BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY, and CHARLES H. M. JENSEN, WM. J. DAIGLE, and O. J. PIKE, as members of and constituting the. BOARD OF COUNTY COMMISSIONERS OF MINERAL COUNTY, the defendants in said cause No.. 1695, through their counsel Walter T. Murphy, Esq., be and appear before this court at the hour of 2:00 o’clock P.M. on the 17th day of June, 1964, to then and there show cause, if any they have, why the district court order of June 3, 1964, hereinbefore referred to, should not be vacated, set aside and held for naught and the cause reinstated in the district court, unless the respondent district court in the interim shall of its own motion cause such action to be taken.

IT IS FURTHER ORDERED that until the further order of this court, the district court order of June 3, 1964, herein before referred to, is stayed, as are any actions or proceedings being taken or considered by any defendants in said district court action based thereon.

IT IS FURTHER ORDERED that by reason of the absence of the district judge who made and entered the order aforesaid, that this order be served upon the Honorable Emmet Glore, a district judge of the Fourth Judicial District, and if he be not the district judge who has assumed jurisdiction in Mineral County during the absence of Honorable E. Gardner Brownlee, that he transmit the same to the Honorable Jack L. Green, the other district judge in said district.

IT IS FURTHER ORDERED that all services be made with immediate dispatch and at least four days prior to the time of hearing as hereinbefore fixed.

PER CURIAM:

Original proceeding.

In this cause an order to show cause, returnable June 17, 1964, was issued. Upon the return day respondents moved for dismissal of the petition of relators. This motion is denied.

IT IS ORDERED that the District Court order of June 3, 1964, as described in the order to show cause, and copy annexed to relators’ petition be, and it hereby is, vacated, set aside and held for naught, and the cause is hereby ordered reinstated in the District Court.  