129 P. 550 | Mont. | 1913
delivered the opinion of the court.
This action was commenced in a justice’s court in Silver Bow county on July 15, 1911. At the conclusion of a trial had on August 3 the justice reserved a decision until August 7, when he found the issues in favor of the plaintiff: and rendered judgment accordingly. On September 6 counsel for defendant served upon counsel for the plaintiff and filed with the justice his notice of appeal to the district court. At the same time he filed with the justice the undertaking required by the statute. On September 9 Mr. Botering, one of counsel for plaintiff, served upon John T. Baldwin, a member of the firm of Baldwin & Baldwin who were representing the defendant, a notice that plaintiff excepted to the sufficiency of the sureties on the undertaking. At- that time James H. Baldwin, the other member of
Under the rules of the court the clerk is required to prepare and publish on the last Saturdays in February and August of each year a calendar of cases in which notes of issue have been filed before the first days of these months. No other cases can be placed thereon except by order of the court on good cause shown. The note of issue in any case may be filed by either party. The cases are then placed upon the calendar in the order in which the notes of issue have been filed. The rules contain these provisions:
“No agreement or consent between the parties or their attorneys, in respect to the proceedings in the cause, will be regarded by the court, unless the same shall have been made in open court, and at the time entered in the minutes, or unless the same shall be in writing, subscribed by the party against whom the same may be alleged or his attorney. And it shall be the duty of the party relying upon any minute entry to see that the same is duly made.
“Whenever an appeal from a justice’s court has been perfected, and the appellant therein fails to file a transcript and the papers in the case in the district court within ten days from the time of perfecting such appeal, the respondent in such ease may obtain the certificate of the justice, certifying the amount or character of the judgment, the date of its rendition, the fact and date of the filing of the notice of appeal and the fact and date of service thereof and character of evidence by which service appears, the fact and date of filing the undertaking on appeal and the.amount thereof, and also that appellant has requested and received a duly certified transcript, or that he has not received the same; or if he has made such*544 request, that he has not paid the fees therefor if the same have been demanded; and, on filing such certificate with the clerk of the district court and giving five days’ notice to appellant, may have such appeal dismissed on the first motion day thereafter, and such dismissal shall be a bar to another appeal in the same action. An appeal dismissed under this rule may be restored on notice to the opposite party, on good cause shown.’*
The provision of the statute authorizing the adverse party to require the sureties on an undertaking on appeal from a justice’s court to justify is the following: “The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or a judge of the district court of the county in which such action has been tried within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given.” (Rev. Codes, see. 7124.)
It is contended by counsel for defendant that the sureties in this case justified in time, because the exception to their sufficiency was not filed with the justice until September 16, and that therefore the defendant was not obliged to have them justify before that time. He also contends that the right to require justification is personal to the exceptant and that by her conduct the plaintiff waived her right to object that the justification was not had in strict conformity with the statute. We shall not stop to determine the merit of the first contention. We are inclined to the view that to be effectual for any purpose, the exception should be filed with the justice, if the papers have not already been transmitted to the district court (sec. 7123), or, if such is the case, with the clerk of the district court. The statute is not more explicit with reference to the exception than it is with reference to the giving of notice. The office of an exception is to reserve a question arising upon
The right to require justification is personal to the exceptant,
That the admitted facts here show a waiver by plaintiff cannot be questioned. To hold otherwise would be to say that a party may profit by his own wrong. But counsel for plaintiff
The last requirement of the rule is not in any sense jurisdictional. (Stevenson v. Cadwell, 14 Mont. 311, 36 Pac. 185.) There
The statute declares: “For a failure to prosecute an appeal, or unnecessary delay in bringing it to a hearing, the district
Now, what are the circumstances which may be treated as excusatory of the defendant’s laches in this ease? It must be borne in mind that by the stipulation of counsel, John T.
Counsel for plaintiff cite and rely on the case of Meyers v. Gregans, 20 Mont. 450, 52 Pac. 83, In that case, however, the
We think the facts of this ease bring it within the principle of the decision in Stevenson v. Cadwell, supra, and that the district court abused its discretion in holding otherwise.
The judgment is reversed and the cause is remanded, with direction to set aside the judgment and to try the issues on the merits.
Reversed and remanded.