10 Mont. 456 | Mont. | 1891
Lead Opinion
We Lave recently (State ex ret. Murphy v. District Judge, ante, p. 401) so fully defined our views of the province of the writ of certiorari, that we will now do no more than inquire whether the District Court exceeded its jurisdiction in making the two orders complained of.
The greater portion of relators’ argument is made upon the alleged ground that they offered to proceed with the trial, but were not allowed to do so by the court. Indeed, the record does show that they offered to proceed with the trial. But the record also discloses that they moved for a continuance, and that the continuance had been granted at their costs. Delators argue that they rejected the terms imposed by the court, and that the trial upon their offer to go on should have proceeded, and the court had no authority to continue the case, and tax the costs against them. How they could reject an order of the court does not appear. Perhaps they could have declined to accept a continuance on the terms imposed, and have done this by withdrawing their motion for a continuance. They did not ask, or offer, that the order for the continuance should be vacated, which must necessarily have been done if the trial was to be had. They expressly stated that they would not withdraw their motion for a continuance. They placed themselves in the peculiar position of, at the same time, demanding a continuance, and offering to try the case. As to the motives of counsel in this action, nothing appears, nor does it seem to concern this court. But however proper the motives, the fact is plain upon the record, that their attitude toward the court was equivocal. How was the District Court to know of what mind the counsel were when they demanded two things, absolutely inconsistent, in the same breath? It is no answer to say, that counsel were endeavoring to preserve their rights. If the court had jurisdiction to impose costs, counsel must submit to the law. In that contingency, they could have paid the costs and had their continuance; or they could have asked to have the order for the continuance vacated, and if done, could have saved the payment of the costs. On the other hand, if the court
This matter seems very plain to my mind, so much so that noticing it may seem superfluous. But counsel have pressed it upon our consideration, and it is perhaps fair to meet the argument contended for at the bar. Suffice it to say, that we know of no principle of law or rule of practice by which it may be demanded from a court, as was demanded from the District Court in this case, and even here insisted upon, that it do both of two things at once, the performance of one of which is the non-performance of the other, and then complain that the court has done the one demanded by a formal motion. (Hughes v. Dundee M. & T. I. Co. 11 Sawy. 561, and cases cited; Newell v. Meyendorff, 9 Mont. 263.)
I am of opinion that the granting of the continuance was proper and unavoidable, and will inquire whether the court had jurisdiction to impose the costs as it did. If section 253 stood alone, relators might have some reasons for their contention. The section first provides for a continuance on the ground of the absence of evidence, and says nothing about the imposition of terms on a continuance granted for this reason. Then the section goes on and says that the court may postpone the trial for grounds other than the absence of evidence, and may do so upon terms. The argument is left open by this section, that having provided terms on a continuance for causes other than the absence of evidence, that this, by implication, excludes the imposition of terms on a continuance granted by virtue of the absence of evidence. But the matter is made by section 503 part of the same Code, that when a trial is postponed for any cause, the costs occasioned by the postponement may be imposed in the discretion of the court. In section 253 we have a special provision covering one class of cases. In section 503 we find a general provision covering all classes, including that named in section 253. It is not a case of expressio unius, exelusio alterius, because, when we consider the two sections, it is not a fact that there is an expresdo unius, and, consequently, there can be no
I advise that the writ be dismissed.
Concurrence Opinion
(concurring). — The sole question to be considered in this case is, whether the court exceeded its jurisdiction in assessing the costs involved by the continuance, upon the party applying therefor. Counsel for relator admits that under the statute quoted supra the court has jurisdiction to impose such costs as a condition of granting continuance, exceoi where the moving party is entitled, on his showing, to a continuance on the ground of absence of evidence. His reasoning would apply with much force if section 253 was the only statute on the subject. But section 503 seems to apply to all cases of postponement, and especially provides that costs occasioned thereby may in the discretion of the court be imposed as a condition of granting the same. This section is general, and makes no distinction as to the grounds upon which continuance is granted. Delator contends that section 503 should be interpreted to relate only to the latter part of section 253, authorizing a continuance to be granted on “ other grounds than .the absence of evidence.” If that be done, section 503 becomes meaningless and vain legislation, because section 253 provides that terms may be imposed upon granting a continuance on “grounds other than the absence of evidence.” Such interpre
I think the statute gives the court jurisdiction in its discretion to impose the costs involved by the continuance upon the party applying therefor, without reference to the ground for which continuance is granted. Such discretion might be exercised so as to work hardship or injustice upon a party who had endeavored with due diligence to prepare for trial, and had been prevented from maturing his preparation by circumstances beyond his control. In such cases if abuse of the discretion appeared it would undoubtedly be corrected. But in the case at bar we are to pass upon the question of jurisdiction only, and not whether it has been properly exercised. The application of said provisions of the statute being the only question involved in the case, and the only one presented by relator’s brief, with these observations I concur in the order dismissing the writ.
Concurrence Opinion
(concurring). — Sections 253 and 503, supra, are parts of the same act, the Code of Civil Procedure, and should be construed together. When they are thus read there is no repugnancy, and the court below had the power in the exercise of its discretion to impose costs upon the relators as a condition of granting the motion to postpone the trial of the action. And I concur in the judgment that the writ should be dismissed.
