
    No. 10079.
    STATE OF MONTANA ex rel. ELLEN G. ANDERSON, Relatrix, v. DISTRICT COURT OF THE NINTH JUDICIAL DISTRICT of the State of Montana, In and For the COUNTY OF TETON, and the HONORABLE W. M. BLACK, Judge thereof, Respondents.
    Submitted September 1, 1959.
    Decided September 16, 1959.
    344 Pac. (2d) 144.
    
      Wellington D. Rankin and Arthur P. Acher, Helena, for relatrix.
    
      John W. Bonner, Helena, for respondents.
   PER CURIAM.

On September 1, 1959, relatrix filed herein a petition for an appropriate writ to be directed to' respondents from which it appeared that on August 21, 1959, an order tO’ show cause was issued by respondent court in a divorce action in which relatrix was defendant and said order provided, among other things, that the plaintiff in said divorce action should forthwith return certain children to the custody and control of relatrix, it being averred in the petition herein that said children had at all times been in the custody of relatrix until they were removed therefrom without her knowledge or consent by the defendant.

Following service of the order to show cause on the defendant, and on the 26th day of August, 1959, defendant filed an affidavit with respondent court requesting modification of the order of August 21st. Based upon said showing, and without notice to relates, the respondent court entered an order modifying its August 21st order by deleting therefrom the provision with regard to the custody and control of the children.

Deeming the petition meritorious this court on September 1st issued a writ directing the respondent judge to refrain from further proceedings until the further order of this court and to show cause why the order of August 26th should not be annulled. Respondent judge by answer to said writ admits that the order of August 26th was irregular and invalid and it appearing to this court that said order of August 26th was in excess of and without jurisdiction;

It is ordered that said order of the District Court dated August 26, 1959, in Cause No. 5962, Philip E. Anderson v. Ellen G. Anderson, pending in the District Court of the Ninth Judicial District, in and for the County of Teton, be annulled forthwith, and the Honorable W. M. Black, District Judge thereof, is directed to forthwith vacate and set aside said order.

Let the peremptory writ issue.

MR. JUSTICE BOTTOMLY.

I dissent to the issuing of the order and writ in the above-entitled appeal.  