Opinion
No. 9706.
Submitted July 17, 1956.
Decided December 19, 1956.
PROHIBITION, Allowance of Costs and Attorneys Fees. 1. Prohibition — Allowance of Costs and Attorneys Fees. Where alternative writ of prohibition had been issued by Supreme Court against District Court and judge pending disposition of appeal by Board of Administration of Public Employees' Retirement System from decision of District Court awarding disability benefits to certain person, and prohibition proceeding had been dismissed upon affirmance of judgment, District Court and judge would be allowed costs, together with attorney's fee, against board.
Mr. Ralph J. Anderson, Helena, for relator.
Messrs. Skedd, Harris Mufich, Helena, for respondents.
Mr. Anderson and Mr. LaVerne V. Harris argued orally.
Prohibition. This is an original proceeding by the Board of Administration of the Public Employees' Retirement System of the State of Montana, relator, against the District Court of the First Judicial District of the State of Montana, in and for the County of Lewis and Clark and the Honorable John B. McClernan, district judge therein presiding, respondents, for the issuance out of this court of a writ of prohibition to prohibit the respondent district court and judge from issuing a peremptory writ of mandate against said Board of Administration or from otherwise enforcing the judgment entered May 24, 1956, against said Board of Administration and in favor of Walter Ebel and awarding to Ebel disability retirement benefits of $101.83 per month from October 16, 1952 to December 1, 1955, and of $138.82 per month thereafter as long as said Ebel's qualifications for such benefits shall continue unchanged, from which judgment said Board appealed to this court, being appeal No. 9714.
On June 19, 1956, this court caused its alternative writ of prohibition to issue against and to be served upon the respondent district court and judge, since which time it has continued in full force and effect.
It now appearing that appeal No. 9714 was this day decided and that the judgment of the respondent district court and judge therein presiding has been and it is affirmed; and
It appearing to this court and this court so finds, holds and determines that the relator, Board of Administration of the Public Employees' Retirement System of the State of Montana and its members, appeared in this proceeding and prosecuted same and made defense therein in good faith;
Now Therefore It Is Ordered that the respondents' motion to [1, 2] quash said alternative writ of prohibition be, and it is, sustained; that said writ be, and it is, vacated and annulled; that this original proceeding be, and it is, dismissed; that the respondent district court and judge have and recover of and from the relator Board of Administration, respondents' costs together with the sum of $250 as a reasonable attorney's fee necessarily incurred in employing competent counsel to procure and sustain the writ of mandate issued and the judgment entered in the district court and to defend against this original proceeding and prosecuted against respondents in this court. It is so ordered.
MR. JUSTICES ANGSTMAN, ANDERSON, DAVIS and BOTTOMLY, concur.