Franzman v. Davies

32 Mont. 251 | Mont. | 1905

MR. COMMISSIONER POORMAN

prepared tbe opinion for tbe court.

Tbis action was originally commenced in a justice’s court,, where a judgment was rendered for plaintiff on December 11, 1902. On December 16th defendants’ notice of appeal and undertaking on appeal to tbe district court were filed; also a, transcript fee of $2.50 and a filing fee of $5 were paid. On December 20th respondent excepted to tbe sufficiency of the-sureties on tbe undertaking. On December 26th (tbe 25th being a non judicial day) tbe appellant deposited a cash bond on appeal in double tbe amount of tbe judgment, and on December 29th a transcript on appeal was filed in tbe district, court. On March 1, 1903, respondent filed a motion to dismiss tbe appeal, for tbe reasons: “1. That said appeal was not. filed in tbe district court within tbe time allowed by tbe rules, of tbis court and tbe statutes of Montana. 2. Eor tbe reason, that tbe sureties on tbe undertaking on appeal did not justify as required by law, or at all, and that no notice of such justification was ever served on plaintiff or bis attorney.” Tbis motion was supported by an affidavit to tbe effect that no sureties, on tbe undertaking bad justified as required by law. On May 16, 1903, tbe court sustained tbe motion to dismiss tbe appeal,, its order being as follows: “This day, after argument by counsel, tbe motion to dismiss the appeal herein is by tbe court sustained.”

. On January 9, 1904, tbe appellant filed a motion to dismiss-the case, for tbe reason that “plaintiff has for more than six: months neglected to demand or have a judgment entered in -accordance with the rulings of this court sustaining said motion” to dismiss the appeal. This motion was denied. Afterward, on February 6, 1904, the court entered judgment of dismissal of the appeal, which, after the introductory part, is as follows: “Now, therefore, it is ordered, adjudged, and decreed that the said appeal be dismissed at defendant’s cost, and that said cause be remanded to the court from which said appeal was taken.” This appeal is from this judgment of dismissal, and was taken to this court on the 6th day of February, 1904.

1. It is contended that the appeal to this court should be dismissed, for the reason that the same was not taken within ninety days after the date of the order sustaining the motion to dismiss the appeal from the justice’s court. This order, however, is not appealable. (Code of Civil Proc., sec. 1722, as amended by Session Laws 1899, p. 146; Murphy v. King, 6 Mont. 30, 9 Pac. 585; Owen v. McCormick, 5 Mont. 255, 5 Pac. 280; Lisker v. O’Rourke, 28 Mont. 129, 72 Pac. 416; Butte & Boston C. M. Co. v. M. O. P. Co., 27 Mont. 152, 69 Pac. 714; Territory v. Morehouse, 8 Mont. 310, 21 Pac. 663; Beattie v. Hoyt, 3 Mont. 140.) The final judgment of dismissal was not entered until February 6, 1904, and no claim is made that the' appeal was not taken within ninety days thereafter.

2. The errors assigned on this appeal are that the district court erred in dismissing the appeal from the justice’s court, and, further, that the court erred in overruling defendant’s motion to dismiss the case. Under the provisions of sections 170 et seq., Code of Civil Procedure, the district court had jurisdiction of this case, and, if the court erred in making the intermediate order denying appellant’s motion to dismiss the case, the judgment dismissing the appeal must also be error. Subdivision 6 of section 1004, Code of Civil Procedure, relating to the dismissal of actions, provides that an action may be dismissed “by the court, when after verdict or final submission, the party entitled to judgment neglects to demand and have the same entered for more than six months.” In this case more than six months intervened between the order sustaining the motion to dismiss the appeal and the time when the appellant moved to dismiss the case, yet the court denied this latter motion, and afterward made and caused to be entered the judgment dismissing the appeal. The court erred in denying appellant’s motion to dismiss the case, and consequently erred in rendering the judgment of dismissal.

We think this judgment should be reversed, and the cause remanded with direction to the district court to sustain appellant’s motion to dismiss the case.

Per Curiam. — For the reasons stated in the foregoing opinion, the judgment is reversed, and the cause remanded with direction to the district court to sustain appellant’s motion to dismiss the case.

Reversed and remanded.