State ex rel. Caldwell v. District Court

| Mont. | Dec 16, 1895

Per Curiam.

Our inquiry, under the record and briefs in this case, is limited to the sole question whether the district judge exceeded his jurisdiction in proceeding to try the case of Bohart v. Caldwell. (State ex rel. Murphy v. Judge of Second Judicial District Court, 10 Mont. 401" court="Mont." date_filed="1891-01-15" href="https://app.midpage.ai/document/state-ex-rel-murphy-v-judge-of-second-judicial-district-court-6638018?utm_source=webapp" opinion_id="6638018">10 Mont. 401.) We are clearly of opinion that he did not. We doubt whether it is necessary to go beyond the minute entries of the clerk to gather therefrom that, after a new trial was granted, leave to amend the answer in Bohart v. Caldwell was presumably asked by defendant before it was granted by the court. We think it is also a fair presumption that when a new trial of a case is granted, and when the minutes show, that the case is set for trial by the court, and no objection appears of record thereto, the parties have waived their right of appeal from the order granting a new trial. But, if we go too far in.these views, it certainly is proper for the district judge to make the minutes more certain by setting forth in his return to an application for a writ of certiorari that the defendant’s attorney of record asked leave to amend his answer, consented to the setting of the cause for trial, and demanded a jury, all after the motion for a new trial had been granted. Defendant’s counsel of record haying knowingly abided by the order granting a new trial, and proceeded thereunder, the subsequent attempt by him or his co-counsel to appeal from that order could not deprive the district court of its jurisdiction to proceed with this case as it did.

The writ is dismissed.

Writ dismissed.