111 P. 731 | Mont. | 1910
delivered the opinion of the court.
On April 18th of this year we rendered our decision in Dolenty v. Rocky Mountain Bell Telephone Co., 41 Mont. 105, 108 Pac. 921. The result of the trial in the district court was a judgment for the defendant telephone company. Our conclusion was that instead of a judgment for defendant, plaintiff should have prevailed. In concluding our opinion we said: “Since there is not any dispute as to the facts of this case, a new trial is not necessary, but the cause is remanded to the district court with directions to set aside its findings and judgment and enter judgment in- favor of plaintiff for $1,821.93 and costs.” When the remittitur from this court was filed in the court below, and plaintiff requested that the necessary steps be taken therein to make the decision of this court effective, a controversy arose as to whether the judgment in favor of plaintiff should be entered- as of the date of the original judgment or as of the date of the filing of the remittitur in the district court. The trial court having refused to have this judgment entered-as of the date of the original judgment, proceedings in mandamus were instituted in this court to compel the trial court to have the judgment in favor of plaintiff entered as of date Feb
It is urged that the entry of judgment in the court below after the determination of an appeal is not a matter with which the trial court is concerned; that it involves a mere ministerial duty on the part of the clerk, and therefore mandamus will not lie to compel the district court to perform an act which it is. not its duty, to perform, and section 7120, Revised Codes, is cited as follows:' “ "When a judgment is rendered upon the appeal, it must be certified by the clerk of the supreme court to the clerk with whom the judgment-roll is filed, or the order appealed from is entered. In cases of appeal from the judgment, the clerk with whom the roll is filed must attach the certificate to the judgment-roll, and enter a minute of the judgment of the supreme court on the docket against the original entry. * * * ” This section defines the duty of the clerk. It is the judgment of the supreme court which is to be entered, and the clerk of the district court must make the entry. This seems very plain, but if authority to support our conclusion is needed, a reference to the construction given the statute many years before we adopted it, as well as the former decisions of this court, confirm our view.
Our Code of Civil Procedure was taken from California. Section 7120, above, is a literal copy of section 358 of the Cain fornia Civil Practice Act, approved April 29, 1851, and carried forward without change in that state and now appearing as section 958, California Code of Civil Procedure of 1897. In 1853 the supreme court of California was called upon to construe section 358 above, and in doing so said: ‘ ‘ By statute, Practice Act, section 358; the remmihir [remittitur?] from this court is transmitted to the clerk of the court below. By him it is attached to the judgment-roll, and a minute of the judgment of this court is entered on the docket against the,, original entry. The judgment of the court then stands as the judgment of the district court. If the judgment of this court orders a new trial,
The judgment which is to be entered in Dolenty v. Rocky Mountain Bell Telephone Company is the judgment rendered by this court. (See. 7120, Revised Codes.) Upon filing the remittitur with the clerk of the district court, there was then nothing remaining to be done but the entry of that judgment,
The demurrer and motion are sustained and the proceeding is dismissed.
Dismissed.