The Helena independent. [volume] (Helena, Mont.) 1875-1943, 1893-11-03
his REMEDY IS APPEAL.
The Supreme Court Disnaisses Fink
e~lstein's Habsas Corpus and
Certiorari.
Tiukelstein Is Rsmanded to tho
Custody Of the Sheriff Once
More.
From This Prsdicament His Friends Ne
lieve Him by Giving Bonds Until
an Appeal Is Hoard.

In an opinion wilton BY Justice Har.
wood and conourred In by Justice DEWITT
the supreme court yesterday decided ths'
the proper wav for Marcus OF Max Finksl'
stein 10 test the right Of the district cour'
TO order him to pay alimony to his hrs'
Wits. Eva Finkslstsin. pending her suit fol
divorce. was by appealing and not by hab-
cas- corpus OF osrtioraHi proceedings. Fin
k~elstein. who was In contempt of court fol
not obsying the order of Judge Hunt TO pay
slimony, was al once taken TO the county
jail and held there until his friends gave
bond for his appearance, n his oounss
gave notice Of an appeal. The decision Of
the supreme eourt on the habeas co 'pus and
sertiorsri proceedings was 40 follows:
In this proceeding. which comprises {
writ of habeas corpus addressed to the she
IL OF Lewis and Clarke county, together
with a writ Of oezsiorari addressed 10 Vi
district court within and for said county
~Relator seeks a review of certain proceed
ings, and discharge from imprisonment
imposed upon him. BY order Of said court.
It appears that In sn actien for divorce and
alimony. instituted against rslator by Eva
Jinkelstein, his alleged wife, such proceed
iags were had as resulted in IN order OF
she district court requiring rslator TO pay
nfty dollars fer employment Of sounsel on
behalf Of plaistiR In said action for divorce.
together with the sun Of thirty dollars per
month, temporary allmony, payable
10 plaintiff until other wise ordered;
and that on default of payment
Of said $50. a. ordered. such further
p o%ceedinRs were had in the dis
11ict ooarS in the matter a. resulted in
an order committing defendant to imp,is-
onmsnt in the county jail for contempt Of
sourt in disobeyinR the order for payment
Of temporary alimony. Thersupon he
sued out Of this court . writ Of habehs COR
pus. accompanied by . writ Of oertiorari to
Seviev said proceedings OF the district
90: :Ss, a;a sh %: IN s eI;so1n seek; !. to :. ' s9... ss Of
the jurisdistion of the district COAT, N
certain grounds urged; and upon such
showing TO obtain An order dissharRina re-
lator from imprisonment through shs writ
Of habeas corpus.
"R~espondsnts counsel answers all these
pointing out that an appeal lies from .
judgment or order of the district court for
payment of temporary alimony in the p,o-
cssaings for divorcs, and that. therefore,
the same cannot be reviewed by csrtio ari.
- that writ can only be invoked where
there i: NO appeal. - provided BY section
b65. code civil procedure. a. we'll Is tho gen.
ssal doctrine defining sad designating she
functions and use Of the wit Of os1tiorafi.
And respondents counsel further insists
that inasmueh A. an appeal lies from said
order. through saoh appeal with the stay
bead provided Il such eases. 70.
and oompis,. remedy saains, tho
enforcement Of the order for
Temporary sIimony. BY imprisonment or
otherwise; and that therefore he must DO
RENTED to that proceeding for review Of
the action Of the district court, by an order
of this court refusing TO review said pro-
lato1 to custody.
"Thn an appeal lies from the order for
payment Of temporary alimony In an action
Tor divorce has been determined upon su eh
sound principles Of reason and authority,
reviewed in the case Of Sharon VI. Sharon,
siIty-ssventh California, under like p.o-
visions Of tho statute cove ming appeal as
prevails hors. We hin II unnecessary TO
do moro than to cite that case <or an expo
sition of the authorities and reasons upon
which wo bold that appeal lies from the
order or judgment Of the district court for
paymsn Of ~alinoRy in the proceedings In
question.
."Relatof's counsel urges that notwith-
standing suoh right OF appeal this court
should review the proceedings of the dis
ttiot court resulting In the commitment Of
relator for contem pt. because the constitu-
ton provides that each of the justices of
the supreme court may also issue and hear
n determine writs of certiorsri in pro.
oesdings fer oontemp pit in the district court
Under this proceeding he argues that the
scope OF the wit 10 enlarged 70 that al
though relator has an appeal from said
order or inter!ocutory Judgment, and there
by relief from this effect thereof; the 81 me
should also be reviewed ON csctiorari where
tmpHiSon mens for contempt Is involved.
We cannot sustain this position. In our
opinion tho trainers OF the oonstitution, in
referring to the WIZ Of eertioreri, oontem-
plated that proceeding as defined in our
j~urlsprudence, as to its Office. and the con-
ditions under which it may be invoked.
In the matter Of MasKnight. Eleventh
Eontans.)
1T follows. therefore. that relator has a
remedy In the matter in question. by ap-
peal. II his contention 10 we'll founded,
through which he may obtain relief, beth
from the imprisonment and from other
methods OF enforcing the order complained
Of. For these reasons an order will be en-
tered REMINDING him TO custody"
In Aims Against the New York store.
1t seems that the New York DRY Goods
Store has gathered a storm about their
huaineaa Tbia ia urouo-. r,s<euI -.II:-