                                 No 12594
          I N THE SUPREME COURT OF THE STATE OF M N A A
                                                 OTN
                                   1973




I n t h e Matter of t h e A p p l i c a t i o n of JAN S STEWART
f o r a W r i t of Supervisory Control o r Other Appropriate
Writ.




ORIGINAL PROCEEDING:
Counsel o f Record:
     For P e t i t i o n e r :
             M K D a n i e l s a r g u e d , Deer Lodge, Montana
     For Respondent:
             Small, C u m i n s and Hatch, Helena, Montana
             Floyd 0. Small a r g u e d , Helena, Montana



                                          Submitted:    October 3 , 1973
Mr. Justice Wesley Castles delivered the Opinion of the Court.

        This is an original proceeding seeking a writ of super-
visory control or other appropriate writ to be directed to the
district court of the third judicial district in Powell County,
the Hon. E. Gardner Brownlee, presiding.
        The guardian of the person and estate of Gavin Stewart,
his son Jan S. Stewart, petitioned this Court for a writ.      On
January 13, 1972, the guardian was appointed and assumed the
guardianship.   On March 12, 1973, Gavin Stewart filed a petition
for restoration to capacity.   The matter was heard on March 29,
1973,by Hon. Robert J. Boyd, and on April 19, 1973, the petition
was denied.   A motion for a new trial was filed, based upon
affidavits.   The motion was heard and on May 25, 1973, the motion
was denied.   No appeal was taken.
        On June 19, 1973, some three weeks later, an affidavit of
disqualification was filed to disqualify Judge Boyd, and at the
same time a new petition for restoration to capacity was filed
by one Robert Burdett, a friend of Gavin Stewart, represented
by the same counsel.
        On July 12, 1973, the respondent here, Hon. E. Gardner
Brownlee, assumed jurisdiction.   A motion to quash was filed by
the guardian and the motion was set for hearing at the same time
as the petition for restoration on August 13, 1973.   At said
hearing oral argument was heard on the motion to quash, the matter
was taken under advisement by the court; and the court proceeded
to hear the petition for restoration to capacity.
        On August 20, 1973, Judge Brownlee ordered Gavin Stewart
restored to capacity; and, while no order denying the motion to
quash was entered, obviously the motion was denied.
        Thus, while one judge, Hon. Robert J. Boyd, denied the

petition for restoration to capacity, another judge on the identical
petition except as to party, and for all intents and purposes
 the same evidence, granted it after assuming jurisdiction be-
cause of disqualification of Judge Boyd.     The application for
writ of supervisory control alleges that this was a flagrant
abuse of the disqualification statute.     We agree.
        Section 93-1101, R.C.M. 1947 provides:
        "If an application for an order, made to a judge
        of a court in which the action or proceeding is
        pending, is refused in whole or in part, or is
        granted conditionally, no subsequent application
        for the same order shall be made to any other
        judge, except of a higher court; but nothing in
        this section refers to motions refused for in-
        formality in the papers or proceedings necessary
        to obtain the order, or to motions refused with
        liberty to renew the same.''
        In State ex rel. Carroll v. District Court, 50 Mont. 428,
431, 433, 147 P. 612, it is said:
        "When the application for restoration was denied
        in department No. 2, Mrs. Nett was forbidden by
        statute (section 6324, Rev. Codes) fnow 93-1101,
        R.C.M. 19471 the right to renew it before the
        other department, and yet, if this order now
        under review be permitted to stand, she will have
        accomplished by indirection the very thing she is
        forbidden to do directly. * * * The statutes are
        intended to be obeyed in spirit as well as in
        letter. The evidence taken in department No. 1
        was not so different from that considered in
        department No. 2 as to warrant a different con-
        clusion." (Emphasis supplied)
        The evidence, including that set forth in the affidavits
for a motion for new trial was not so different as to "warrant
a different conclusion".    No change in circumstances was alleged
 in the petition for restoration to capacity filed by Mr. ~urdett
nor was there alleged to be any difference in the mental state
or capacity of the ward.
        The same case provides authority for this Court to enter-
taln supervisory control.   At page 430 the following appears:
        " * * * The writ of supervisory control is issued
        only to correct rulings made by the lower court
        acting within jurisdiction, but erroneously, where
        there is not an appeal, or the remedy by appeal
           cannot afford adequate relief, and gross in-
           justice is threatened as the result of such
           rulings. (In re Weston, 28 Mont. 207, 72 P.
           512. ) I'
           The answer and return attempts to set up an exceptional
situation in that counsel for Gavin Stewart (being the same
counsel for Robert Burdett) claimed to have been taken by sur-
prise on the first hearing before Judge Boyd; in that he alleges
that counsel for the guardian led him to believe that his pe-
tition for restoration would not be opposed.      Accordingly, at
that hearing he only presented affidavits of Dr. Burgess and
one other, whereas on the second effort he presented testimony.
           Then the answer and return goes on to assert other
matters in the administration of the guardianship and account-
ing thereof.     Counsel then would have us believe that "capacity"
is a continuing thing or situation in a guardianship and there-
fore new applications for restoration can be made as the situation
may change; and thus the judgment or order of incompetency is
never final and conclusive in the sense that a tort or contract
action, for example, would be.     (See 44 C.J.S. Insane Persons

s   55.)
           This would be true in some situations that we need not
develop here.    Counsel on the argument both orally and by brief
asserted that there was a "vast difference between the evidence
produced at the first hearing before Judge Boyd, and the evi-
dence that was submitted at the hearing before Judge Brownlee".
This Court by order dated October 11, 1973, ordered transcripts
prepared of both hearings and has examined the court files.     We
find that, to the contrary, there are no essential differences
in the evidence.     It is virtually the same.   No change of circum-
stances is alleged in the second petition--nothing more than
the disqualification of Judge Boyd, a change of one party from
Gavin Stewart to Robert Burdett, a friend.      It is a classic
case of use of the disqualification statute to effect an
"appeal" and as such is improper.
         Much is said in testimony, by affidavit, and in oral
argument about the mental state of Gavin Stewart, now aged 80
years.   In Carroll, p. 433, this Court described incompetency
in these words:
         "'The phrases "imcompetent," "mentally incompetent,"
         and "incapable," as used in this title, shall be
         construed to mean any person who, though not insane,
         is, by reason of old age, disease, weakness of mind,
         or from any other cause, unable, unassisted, to
         properly manage and take care of himself or his
         property, and by reason thereof would be likely
         to be deceived or imposed upon by artful or de-
         signing persons.'"
         The ward here is in a nursing home.    He admits he cannot
manage his own property and would have a third person do it.
His only son came from California, took his father from the
hospital in Missoula to Deer Lodge and then put him in a rest
home in Helena.   Under the circumstances, this Court should not
interfere.
         By what has been said heretofore, the motion to quash
the second petition for restoration should have been granted;
appeal from that order   (none having been issued) or appeal
from the order granting restoration to capacity would not have
been an adequate remedy at law.   Accordingly, a writ of super-
visory control will issue directing the respondent judge to
grant the motion to quash.   The costs of transcripts heretofore
alluded to are chargeable to the guardianship.



                                    ,;Justice
                                     /




 'khief Justice
