207 P. 1004 | Mont. | 1922
delivered the opinion of the court.
In this case a writ of review was issued by this court. It appears that,the Stone-Ordean-Wells Company brought an action on January 7, 1921, against the relator, Rupon Deck, in the district court of Cascade county, to collect $206.34 claimed to be due it on open account. A summons and writ of attachment were thereupon on that date regularly issued, and the summons was served on January 13, 1921. On February 1, 1921, the plaintiff’s attorney filed a praecipe, directed to the clerk of the court, requesting the entry of defendant’s default
The decisive question is whether a writ of review is the proper remedy. The writ will not issue when a remedy by appeal exists. This is the mandatory language of the statute (see. 9837, Rev. Codes 1921), and the settled rule in this court. (State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820; State ex rel. Prescott v. District Court, 27 Mont. 179, 70 Pac. 516; State ex rel. Reynolds v. Laurendeau, 27 Mont. 522, 71 Pac. 754; State ex rel. Davis v. District Court, 29 Mont. 153, 74 Pac. 200; State ex rel. Grissom v. Justice Court, 31 Mont. 258, 78 Pac. 498; State ex rel. Gattan v. District Court, 39 Mont. 134, 101 Pac. 961; State ex rel. Beadle v. Smith, 42 Mont. 492, 113 Pac. 294.)
“Where there is an appeal or other plain, speedy and adequate remedy, a writ of review is not proper, and where an appeal is authorized, the fact that it is not speedy or adequate is of no consequence. (State ex rel. King v. District Court, supra; State ex rel. Davis v. District Court, supra;
In this case the error committed was within jurisdiction, and the defendant had an adequate remedy by appeal. As stated by this court, speaking through Mr. Justice Reynolds, in the case of Batehoff v. Butte Pac. Cop. Co., on rehearing, 60 Mont. 189, 198 Pac. 132: “While under the facts stated in the opinion it was error to prematurely enter the judgment, yet such entry was not without jurisdiction, but was error within jurisdiction. It was voidable but not void. (23 Cyc. 745; 12 Cyc. 755; 2 Freeman on Judgments, pars. 532, 542; Cook v. Mix, 10 Conn. 565; Drew v. Claypool, 61 Mich. 233, 28 N. W. 78; Anheuser-Busch Brewing Assn. v. McGowan, 49 La. Ann. 630, 21 South. 766; Mitchell v. Aten, 37 Kan. 33, 1 Am. St. Rep. 231, 14 Pac. 497; People v. Dodge, 104 Cal. 487, 38 Pac. 203; O ’Rear v. Lazarus, 8 Colo. 608, 9 Pac. 621; Remnant v. Hoffman (Cal.), 11 Pac. 319; Gwillim v. First Nat. Bank of Colorado Springs, 13 Colo. 278, 22 Pac. 458; Ross v. Wellman, 102 Cal. 1, 36 Pac. 402; Hole v. Page, 20 Wash. 208, 54 Pac. 1123).”
The statute plainly authorizes an appeal “from any special order made after final judgment.” (Sec. 9732, Rev. Codes 1921.) An order setting aside or refusing to vacate a default judgment is a special order made after final judgment within the meaning of the -statute (Canning v. Fried, 48 Mont. 560, 139 Pac. 448; Foster v. Coyle, 59 Mont. 444, 197 Pac. 747); and the same is true of an order made vacating an order setting aside a default judgment, as was done in this ease. Defendant’s remedy in each instance was by appeal.
The writ is dismissed.
Dismissed.