54 P.2d 563 | Mont. | 1936
Section 23, Article VIII, of the Constitution of Montana, provides: "Appeal shall be allowed from justice's courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law." It is elementary that a right of appeal given by the Constitution cannot be denied *536
a person. (Maxey v. Cooper,
Since the legislature may not abridge the right of appeal but may only regulate the procedure of appeals (State ex rel.Cobban v. District Court,
If section 9754, Revised Codes 1921, is so construed as to demand that in all cases appeal must be taken from a justice court judgment within thirty days of its rendition, rather than within thirty days of the date when the right to appeal accrued, the section is unconstitutional as denying defendant its constitutional right to appeal.
It is generally held that where some essential step in the perfecting of an appeal has been unavoidably delayed or rendered impossible of timely performance by some neglect or inability of some court official, the appeal should not be dismissed. (In reWilmering's Estate,
Our Constitution (sec. 23, Art. VIII) declares that "appeal[1-3] shall be allowed from justices' courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law." Pursuant to this authority, the legislature has prescribed that such an appeal may be taken "at any time within thirty days after the rendition of the judgment." (Sec. 9754, Rev. Codes 1921.) Such a provision is a statute of limitations, and, unless the appeal is taken within the time prescribed, the appellate court acquires no jurisdiction and the appeal must be dismissed. (Welcome v. Howell,
Under fact conditions similar to those in the case at bar, this court has said: "There being no appeal allowed from the order refusing to set aside the default and judgment * * * and the appeal from the judgment having been perfected after the lapse of 30 days from the rendition thereof, the district court was without jurisdiction to entertain it." (State ex rel.Cobban v. District Court,
On constitutional grounds it is held that, where a statute is so framed as to deny the right of appeal in certain instances, the statute is invalid as to an aggrieved litigant who is thereby denied an appeal. (O'Bannon v. Ragan,
Counsel for the plaintiff asserts that the judgment should be affirmed for the reason that, as the trial on an appeal from a justice of the peace court is de novo, the defendant could have appealed from the judgment without waiting for a ruling on its motion, but with this assertion we cannot agree.
The statute expressly declares that there is no appeal from a default judgment except in the special instances enumerated, and, under the provisions of that portion of section 9755 quoted above, the district court is merely called upon to determine whether or not the justice of the peace court "abused its discretion" in ruling on a motion to set aside the judgment; it could neither affirm nor reverse the judgment, but, to the extent that the court is required to reconsider the action of the justice to determine whether the lower court abused the discretion vested in it, the action on appeal is a review rather than the familiar trial de novo on appeal from such a court.
While the statutes are not the same, on principle, the following cases are in point: Maxson v. Superior Court,
The district court can acquire no jurisdiction by appeal until *540 the lower court has acted, and cannot try the case de novo unless it determines that the lower court abused its discretion in refusing to set aside the judgment on the showing made in support of the motion.
Had the defendant attempted to appeal from the default judgment without waiting for a ruling on his motion, the only possible effect such an appeal could have had would have been an affirmance of the default judgment. (Gage v. Maryatt,
No appeal would lie until after the justice ruled on the motion, and the defendant appealed as soon as an appeal was possible; therefore, if the ruling in the Cobban Case is[4] correct, it had no appeal. However, the motion to set aside a default judgment, authorized by section 9187, Revised Codes 1921, and recognized as applying to such a judgment as this by section 9755, above, is akin to, or in effect, a motion for a new trial.
While our attention has been called to, and we have found, no case ruling on a situation such as that here presented, the following rules with reference to the motion for a new trial are well established: The limitation of time within which an appeal may be taken is fixed by law so as to bring litigation to an end and define the limit of the trial court's jurisdiction (StateBank of New Salem v. Schultze,
In line with our decisions above (State Bank v. Schultze
and Noe v. Matlock), it is said: "Under our procedure, there is no inhibition against entering a judgment immediately after the verdict, and, in the event a motion for new trial is not filed within the statutory time, said judgment becomes final. If within said period of time a motion for new trial is filed, it thereupon becomes the duty of the trial court to review its action; * * * it is only after the trial court has * * * arrived at the conclusion that no error has been committed and has overruled a motion for new trial that the litigation in the trial court is actually terminated." (Price v. Sanditen,
Where, therefore, a motion for a new trial, authorized by law,[7] is made within time, the judgment entered, and on which otherwise an execution might issue, is not final until the motion is disposed of (Everett v. Jones,
Where the right to grant new trials is conferred upon justices[8, 9] of the peace, the same principles govern the extent and exercise of the jurisdiction as govern courts of record, and, when timely motion for a new trial in a justice court is made, the motion suspends the judgment until the motion is disposed of *542
(State ex rel. Porter v. Ritchie,
Commenting upon a statute such as our provision granting the right of appeal in cases in justices' courts, the supreme court of Alabama said: "This enactment is perfectly plain and intelligible in its requirements, both as to the time within which the appeal may be prayed for and a bond executed; yet we apprehend that the time will not begin to be computed, until the judgment has received the final action and approbation of the justice. * * * For then, and not sooner, does the officer rendering the judgment consider it final." (Moore v. Jones,
The rule, governing both in courts of record and justices' courts, seems to be that, in the absence of statutory regulation respecting a motion for a new trial, the motion, when authorized by statute, suspends the judgment as a final determination of the action, until the motion is passed upon. This rule is sound in the absence of specific statutes on the subject, and, without intimating its applicability under our new trial statutes, as we have no specific statute on the subject before us, other than those considered above, in order to bring section 9755, above, into harmony with the mandate of the Constitution, it must be held that, on timely motion to set aside a default judgment in the justice court, the judgment is "suspended as a roll" and the time for taking an appeal therefrom begins to run from the time the motion is sustained or overruled. The decision in State exrel. Cobban v. District Court, above, is expressly overruled.
The judgment of dismissal of the appeal is reversed and the cause remanded, with direction to overrule the motion to dismiss and entertain the appeal.
MR. CHIEF JUSTICE SANDS and ASSOCIATE JUSTICES STEWART, ANDERSON and MORRIS concur. *543