No. 80-251 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex rel., 

DANIEL MORSE, 

Petitioner and Appellant, 

JUSTICE COURT OF DEER LODGE COUNTY, 

Patrick Laughlin, Justice of Peace, 

et al., 

Respondents. 

Appeal from: District Court of the Third Judicial District, 

In and for the County of Deer Lodge. 

Honorable Robert Boyd, Judge presiding. 

Counsel of Record: 

For Appellant: 

Edward D. Yelsa, Anaconda, Montana 

For Respondents: 

Hon. Mike Greely, Attorney General, Helena, Montana 

John Radonich, County Attorney, Anaconda, Montana 

William A. Brolin, Anaconda, Montana 

Submitted on briefs: February 25, 1981 

Decided : APR 9 - 1981 

Filed: #$kit - 

Y 'Clerk 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Plaintiff Daniel Morse appeals from the judgment of the 

Third Judicial District Court, Deer Lodge County, quashing a 

writ of prohibition issued to stay Justice Court proceedings 

pending against plaintiff. We affirm. 

During the afternoon of December 26, 1979, plaintiff 

was issued a notice to appear and complaint for operating a 

motor vehicle while intoxicated on Highway 10-A near Anaconda, 

Montana. On December 27, 1979, plaintiff's attorney, Edward 

Yelsa, appeared in plaintiff's behalf before the Deer Lodge 

County Justice Court and entered a not guilty plea to this 

complaint. Plaintiff's attorney further demanded a jury 

trial on the charge and the court fixed January 31, 1980, as 

the date for the Justice Court trial. 

One week before trial, plaintiff's attorney moved the 

Justice Court to continue the trial because plaintiff was 

hospitalized in the Galen State Hospital Alcohol Treatment 

Unit and would be unavailable to appear in court on January 

31, 1980. This motion was granted by the court and the 

trial date was rescheduled to February 26, 1980. 

On February 25, 1980, the day before trial, Deer Lodge 

Deputy County Attorney William Brolin moved the court to 

continue again the time of trial. This motion was granted. 

Plaintiff's attorney was personally notified of the time 

for plaintiff's trial by the clerk of Justice Court. Plaintiff's 

attorney was in the Justice Court clerk's office on the 

afternoon of February 25 and the clerk told counsel of the 

change in the date of trial. On the morning of February 26, 

1980, however, plaintiff, along with his attorney and witnesses, 

appeared in Justice Court for the trial. No trial was held 
and plaintiff claims that this failure to hold the trial on 

February 26, 1980, amounts to a violation of his constitutional 

right to a speedy jury trial. Plaintiff brought action in 

District Court seeking a writ of prohibition to stop the 

Justice Court from proceeding further in the prosecution of 

the drunken driving complaint. In his petition for writ of 

prohibition, plaintiff claimed the Justice Court lacked 

jurisdiction to proceed further against him. The District 

Court initially issued a writ of prohibition arresting the 

Justice Court proceedings. Following a show cause hearing 

on the petition, however, the District Court quashed the 

writ, concluding that a writ of prohibition was legally 

inappropriate given the facts of the case. The District 

Court found that plaintiff had other appropriate remedies 

available. 

Plaintiff presents one issue for our review: 

Was the judgment entered by the District Court on 

behalf of defendant Justice Court denying relief to plaintiff 

and granting the motion to quash the writ of prohibition 

justified under the state of the record? 

Plaintiff contends the failure of the county attorney 

to appear and prosecute the alleged drunk driving violation 

on February 26, 1980, caused the Justice Court to lose 

jurisdiction over this action. This loss of jurisdiction in 

the Justice Court, plaintiff contends, eliminates any 

possible appeal of an adverse decision to the District 

Court. Plaintiff believes, a writ of prohibition is the only 

available and appropriate remedy. For support in this 

argument, plaintiff relies upon State v. Williams (1915), 

50 Mont. 582, 148 P. 333. 
We disagree. A writ of prohibition is not the appropriate remedy given the state of this record. A writ of 

prohibition is available to a litigant only where there is 

not a plain, speedy and adequate remedy in the ordinary 

course of law. See, State v. District Court (1955), 128 

Mont. 538, 279 P.2d 691; section 27-27-102, MCA. In State 

v. Booher (1911), 43 Mont. 569, 118 P. 271, we quoted the 

New York Court of Appeals and explained that a writ of 

prohibition is a unique legal tool: 

"The writ of prohibition is not favored by 

the courts. Necessity alone justifies it. 

Although authorized by statute, it is not 

issued as a matter of right, but only in 

the exercise of sound judicial discretion 

when there -- is no other remedy . . . 

"It is justified only by extreme necessity, 

when the grievance cannot be redressed by 

ordinary proceedings at law, or in equity, 

or by appeal . . . We think the relator had a 

remedy which, even if indirect and inconvenient, deprived him of the right of 

prohibition." (Emphasis added.) 

In this case, plaintiff has not shown why he could not 

assert his jurisdictional defense in the Justice Court 

directly or by writ of certiorari in the District Court. 

See, section 27-25-102, MCA. 

The plaintiff is not entitled to use the extraordinary 

remedy of a writ of prohibition in this case. The District 

Court here was correct to quash the writ of prohibition. 

The judgment of the District Court is affirmed. 
We Concur: 

Chief Justice