No. 86-190 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1986 

STATE, ex rel., THOMAS ANC DONALD 

CHISHOLM, 

Relators, 

-VSTHE DISTRICT COURT OF THE SEVENTEENTH 

JUDICIAL DISTRICT OF THE STATE OF 

MONTANA, IN AND FOR THE COUNTY OF 

VALLEY, THE HON. R.C. McDONOUGH, 

THE DISTRICT JUDGE PRESIDING, 

Respondents. 

ORJGINAL PROCEEDING: 

COUNSEL OF RECORD: 

For Relators: 

Erik B. Thueson argued, Great Falls, Montana 

For Respondent : 

Habedank, Cumrning, Best, Maltese & Savage; Robert 

Savage argued, Sidney, Montana 

Hon. Russell McDonough, District Judge, Glendive, 

Montana 

Submitted: September 9, 1986 

Decided: December 30, 1986 

Filed: DEC 3 0 1986 
Mr. Justice John Conway Harrison delivered the Opinion of the 

Court. 

This case is before the Court on a petition for a writ 

of mandamus pursuant to § 27-26-101, MCA, Art. VII, § 2 of 

the Montana Constitution which allows a petition of 

supervisory control, and Rule 17, M.R.App.Civ.P., which 

allows the issuance of extraordinary writs when there is not 

a speedy and adequate remedy by appeal. We decline to issu-e 

the writ. 

The relators (Chisholms) filed a suit against Nelson 

Corscadden for conversion in the District Court of the 

Seventeenth Judicial District, in and for Valley County, 

Montana. Before the case came to trial, Corscadden filed for 

bankruptcy. Chisholms then filed a complaint against First 

National Bank of Glasgow, Montana, in the same court. Th.e 

complaint alleging the Rank secretly conspired to deprive 

them of their property rights in certain property which is 

the subject of the action against Corscadden. Subsequently, 

Chisholms petitioned the bankruptcy court to abstain from 

asserting jurisdiction to allow them to proceed against 

Corscadden, but the court refused. 

Shortly before the trial against the Bank was scheduled 

to begin, the Bank moved the District Court for partial 

summary judgment as to ownership of any disputed property. 

The District Court abstained from asserting jurisdiction over 

the issue of ownership, but refused to grant summary judgment 

unless Chisholms "diligently" refused to pursue an action in 

the bankruptcy court to determine ownership. 

It is from this order the petition for writ ensued, 

asking us to order the District Court to withdraw its order 
and reschedule the trial of Chisholm v. First National of 

Glasgow. 

A writ of mandamus "is an extraordinary remedy, not to 

he had merely for the asking, but to be obtained only j.n 

those rare cases wherein there is not any plain, speedy and 

adequate remedy in the ordinary course of law; . . ." State 

ex rel. Duggan v. District Court (1922), 65 Mont. 197, 199, 

210 P. 1062, 1063. "[A] writ will issue only when there has 

been a showing that a clear legal duty exists and there is no 

speedy or adequate remedy in the ordinary course of law." 

State ex rel. Intake Water Co. v. Board of Natural Resources 

and Conservation (1982) , 197 Mont. 482, 487, 645 P. 2d 383, 

386; Cain v. Department of Health (1978), 177 Mont. 448, 451, 

582 P.2d 332, 334; § 27-26-102(2), MCA. 

In determining whether action by a court 

or judge may be compelled by the writ of 

mandate, the essential questions to be 

decided are, whether the act sought to be 

compelled is one "which the law specially 

enjoins as a duty resulting from an 

office. trust or station," . . . and 

whether there is "a speedy and 

adequate remedy in the ordinary course of 

law." . . . A negative answer to the 

first question bars the issuance of the 

writ, and, irrespective of the answer to 

that question, an affirmative answer to 

the second, divests the court of 

authority to issue it. 

State ex rel. County of Musselshell v. District Court (1931.?, 

89 Mont. 531, 534, 300 P.2d 235, 236. Although an 

affirmative answer to the second question is dispositive, we 

note the District Court has a clear legal duty not to hear a 

case over which it has no jurisdiction. 

More importantly, however, Chisholms have not shown 

they do not have a plain, speedy and adequate remedy in the 

ordinary course of the law. They were directed by the 
bankruptcy court to file an adversary complaint in the 

bankruptcy court, which they have failed to do. 

They argue their remedy against Corscadden in 

bankruptcy court is limited, since he is bankrupt and there 

are several other creditors involved. A determination of 

ownership of the property by the bankruptcy court, however, 

does not preclude a remedy against the Bank. If it is 

determined the property belongs to Chisholms, they can 

proceed with their action against the Bank in state court. 

If it is determined the property belongs to Corscadden, 

Chisholms have the right of appeal from the bankruptcy 

court's order; and may proceed in state court on allegations 

of the complaint not based upon the title to the disputed 

property. 

Chisholms' argument they will not be afforded due 

process of law under the bankruptcy court's procedure is 

without merit. Provision for jury trials appears in the 

bankruptcy court's rules, Federal statutes, 28 U.S.C. 1480, 

and case law. The dispute between Chisholms and Corscadden 

arises from the alleged breach of a written contract. 

[I]n actions sounding in account and 

contract there is a right to a jury trial 

under the seventh amendment to the 

Constitution. Matter of Kakolewski, 29 

B.R. 572 (Bankr.D.Mo. 1983). Actions to 

establish liability on a debt require a 

jury trial. In re Lamb 29 B.R. 950, 

(Bankr.E.D. Tenn. 1983). In an action 

for breach of contract, a defendant has 

the right to have a jury determine 

whether the contract has been breached., 

and, if so, what are the damages. Dairy 

Queen, Inc. v. Wood, 369 U.S. 469, 82 

S.Ct. 894, 8 L.Ed.2d 44, (1961). In 

Dairy Queen the relief requested was 

purely equitable--an injunction and an 

accounting. However, because the basis 

of the action was a claim for breach of 

contract it was legal in nature, 

warranting trial. Id., at 479, 82 S.Ct. 

at 900. 

In R.e Energy Resources Co., Inc. (1985)~ 49 B.R. 278, 282. 

See also Beacon Theaters, Inc. v. Westover (1959), 359 U.S. 

500, 79 S.Ct. 948, 3 L.Ed.2d 988. In any event, Chisholms 
have not yet requested a jury trial in the bankruptcy court, 

nor has the court ruled they are not entitled to one. 

Moreover, nothing in the record indicates that once an 

adversarial action is filed in bankruptcy court it will not 

be handled expeditiously. 

The property in question is subject to the jurisdiction 

of the bankruptcy court by virtue of Corscadden's filing a 

voluntary petition under Chapter 11 of the Bankruptcy Code. 

After the bankruptcy court determines whether the property is 

part of the bankrupt's estate, further appropriate action may 

be brought. 

We find there is a plain, speedy and adequate remedy 

available to Chisholms and therefore the petition for writ of 

mandamus is denied. 

We concur: 
Mr. Justice Frank B. Morrison, Jr. dissents as follows: 

The majority opinion mistakenly assumes that title to 

certain Corscadden property is at issue in the state district 

court case. This is not true and the whole premise of the 

majority opinion is fallacious. 

It is true that Chisholm sued Corscadden in state district court for conversion. In a separate action the plaintiff sued the bank for bad faith alleging that the bank 

conspired with Corscadden to take Chisholm's property. Tn 

neither event is title to the property being litigated because a conversion action recognizes title in the other 

person but seeks damages for the wrongful taking of that 

property. Our review here is only of the action against the 

bank which is not a party to the bankruptcy action. 

The bankruptcy court is charged with the responsibility 

of marshal-ling assets belonging to Corscadden and should do 

so. The issues to be litigated in state district court have 

nothing to do with the issues in the bankruptcy court. 

The case in state district court with which we are here 

confronted, involves alleged actions by the bank unlawfully 

interfering with Chisholm's property interests. If the 

allegations are true the bank was guilty of bad faith and is 

liable for punitive damages. It must be emphasized once more 

that title to the property is not an issue. Recognizing 

title to be in Corscadden, Chisholm alleges that the bank 

wrongfully took those interests from him and is liable for 

the reasonable value of the interests together with other 

damages. 
The bankruptcy court itself has recognized that the 

issues in state district court are entirely different. By 

order dated April 3, 1986, the bankruptcy court stated: 

Corscadden is not a party to the state court action 

[between the bank and the plaintiffs] but is merely 

a potential witness . . . while the automatic state 

provisions of the bankruptcy code are intended to 

provide the debtor certain safeguards, the protection debtor seeks here is not within the statute. 

While some parallels may attach between the pending 

state court action and the debtor's bankruptcy 

petition, debtor's concerns of res judicata is 

unfounded due to the difference in party and prayer 

for relief. 

We are confronted with a situation where the bankruptcy 

court itself has said the issues are different and results of 

litigation between the bank and Chisholm will not affect 

proceedings in the bankruptcy court. Yet the state district 

court has refused jurisdiction to Chisholm so that Chisholn 

can proceed on his bad faith claim against the bank. 

Amazingly this Court approves. 

I must express my extreme frustration with the treatment 

accorded these issues. The majority opinion does not address 

the issues in the case. Essential facts are not mentioned in 

the opinion. The casual reader of advance sheets would 

glance through the majority opinion without realizing how far 

off the mark the decision is. I have tried, without success, 

to intelligently debate the case in the Court conference. I 

am now ].eft with being a voice in the wilderness on a case 

where the majority fails to even discuss the dispositive 

issues. 

I dissent to the decision. I dissent to the decision 

making process.