Opinion
No. 9250.
Decided April 22, 1953.
Messrs. W.G. Gilbert, Jr., and Leonard A. Schulz, Dillon, for relator.
Original proceeding. Application by the state of Montana on the relation of Edgar F. Ferris, as executor of the last will of Edgar Ferris, deceased, et al., relators, for a writ of supervisory control to be directed against the district court of Beaverhead county, Montana, and the Honorable John B. McClernan, presiding judge, respondents, to require respondents to show cause why a certain special order made after final judgment, denying relators' motion to strike from the memorandum of costs filed in the respondent district court in cause No. 5513, therein, entitled Henry M. Meine et al., plaintiffs, v. Edgar F. Ferris, as executor of the last will of Edgar Ferris, deceased, defendants, taxing plaintiffs' costs on appeal to this court in appeal No. 9070, Meine v. Ferris, 126 Mont. 210, 1952, 247 P.2d 195, should not be annulled and respondents ordered to sustain relators' cost bill on their appeal and allow relators' costs on such appeal.
An appeal may be taken from a special order made after judgment which modifies a judgment theretofore entered and adversely affects the rights of a party to the litigation. R.C.M. 1947, sec. 93-8003, subdiv. 2 and sec. 93-8004, subdiv. 3; In re Williams' Estate, 52 Mont. 366, 157 P. 963; First State Bank v. Larsen, 72 Mont. 400, 405, 407, 233 P. 960.
It appearing that the remedy of appeal is available to relators and that such remedy is adequate, it is ordered that the writ applied for be denied and the proceedings here be dismissed.