115 P. 681 | Mont. | 1911
delivered the opinion of the court.
The district court of Lewis and Clark county, on February 17, 1909, in the case of Dolenty v. Rocky Mountain Bell Telephone Company, entered a judgment for the defendant; on appeal to this court, the judgment was reversed, and the following order entered: “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 the plaintiff for $1,821.93 and costs.” (Dolenty v. Rocky Mountain Bell Tel. Co., 41 Mont. 105, 108 Pac. 921.) This order was made on April 18, 1910. On May 18, 1910, respondent’s motion for a rehearing was denied. No motion was made in this court by the appellant for a correction of the order, or for a nunc pro tunc order providing for interest on the judgment. On May 23, 1910, a remittitur was filed with the respondent, clerk of the district court; on January 5, 1911, counsel for Dolenty presented to the respondent a judgment in the sum of $1,821.93, with costs, and demanded, in effect, that it be entered as of February 17, 1909, so that it would draw interest from that date. The clerk refused to enter the- judgment, whereupon this proceeding in mandamus was instituted to compel him to do so. The matter has been submitted on the pleadings.
When the remittitur was issued, this court lost jurisdiction
While it is true that this court in the original case instructed the court below to set aside its former judgment and enter one
As the respondent was without authority to enter the judgment tendered him, the proceedings are dismissed.
Dismissed.