113 P. 294 | Mont. | 1911
delivered the opinion of the court.
On December 9, 1909, Daniel Marshall brought his action before W. Y. Smith, a justice of the peace for Township 1 in Gallatin county, against J. W. Beadle and J. K. Bailey, to recover the sum of $299.50, alleged to be due as a balance on account. Summons was issued at once, but the defendants could not be found. An attachment was also issued and levied upon property belonging to defendant Beadle. An alias summons was afterward, on March 7,, 1910, served on Beadle, returnable on March 17 at 10 o’clock A. M. Bailey was not served. At the time fixed for appearance on March 17, the justice postponed the time for defendants to answer to 3 o’clock in the afternoon, because he was engaged in the trial of another case. Immediately following the order of postponement the
The order of postponement by the justice purports to have been made for the benefit of the defendants. The question whether the justice acquired jurisdiction over the person of Bailey, by his appearance at the time this action was taken, is unimportant. By joining with Beadle in the motion to dismiss the action, he waived service of summons and appeared for all purposes. (Revised Codes, sec. 6995; State ex rel. Mackey v. District Court, 40 Mont. 359, 135 Am. St. Rep. 622, 106 Pac. 1098.)
It cannot be ascertained definitely from the recitals of the justice’s docket whether the motion to dismiss was made and decided at 3 o’clock in the afternoon of the 17th, or at some hour prior to that time. And as the postponement of the time to answer was made to 3 o’clock, we are at liberty to presume
Reversed.