14 Mont. 520 | Mont. | 1894
Lead Opinion
This case is in fact an action ex relatione, in which the relators are A. P. Johnson and another, and the respondent is J. F. Case, a justice of the peace, although the papers in the court below were entitled Johnson et al. v. Case. (Territory v. Potts, 3 Mont. 364.)
Section 794 of the Code of Civil Procedure provides, in reference to justice courts: “Upon a verdict by a jury the justice shall immediately render judgment accordingly.” In the case at bar the justice followed this statute; and, in accordance with the verdict of 'the jury, and on the same day, to wit, February 16th, he entered judgment for the claim and interest against defendants, and judgment for costs against the plaintiff. On motion of plaintiff, on February 24th, the justice undertook to partially set aside the judgment above described, and thereupon enter another judgment. This attempted judgment of February 24th varied from the judgment of February 16th, in that it added to the judgment against defendants an attorney’s fee for the plaintiff, and also taxed the costs against the defendants, which was contrary to the verdict of the jury, and contrary to the judgment of February 16th. This was not doné upon a new trial. A new trial was not applied for, nor granted, nor had. The action of the justice was simply a setting aside of the verdict of the jury as to costs, and the judgment in accordance therewith, and the entering of another and different judgment as to the costs, with the attorney’s fee added to the judgment for plaintiff, without any further or other trial. For convenience in referring to the action of the justice, we will call the judgment of February 16th the first judgment, and the action of the court of February 24th the second judgment. As we understand this case,
The statute provides that “upon a verdict by a jury, the justice shall immediately render judgment accordingly.” (Code Civ. Proc., § 794.). “When the prevailing party is entitled to costs .... the justice shall add their amount to the verdict.” (Code Civ. Proc., § 799.) As the case was tried to the justice the “prevailing party” was, in effect, the defendants, i. e., the defendants prevailed in the contention. The only contention was as to the costs. In this defendants prevailed, i. e., the verdict was in their favor. The justice rendered judgment in accordance with the verdict, and in favor of defendants for costs. The word “ immediately,” as used in the statute above, has often been construed by courts. It has sometimes been construed as liberally as to mean twenty-four hours. But we have not observed that it has ever been construed as eight days. Now, if the justice is to immediately render judgment upon the verdict of the jury (§ 794), and if he is to add the costs to the verdict (§ 799), it would seem to be in contemplation that the question of who was to pay costs was something determinable upon the return of the verdict, and the immediate rendering of judgment; that is, we say that the question of, against whom the judgment for costs is to be, seems to be determinable with the general verdict. We do not think that we can be understood as holding that a justice has no jurisdiction or power after judgment to add an omitted item of costs, or cut out an item wrongly and inadvertently
On February 16th there was a judgment in favor of defendants for their costs. Plaintiff did not attempt an appeal from this judgment. It was rendered by the justice upon the verdict of a jury. (Code Civ. Proc., § 794.) We are of opinion that we should not hold, under the circumstances of this case, that the costs were simply an incident of the judgment in the justice court, and, therefore, that the justice could add them eight days after the trial. Such view was not presented by counsel for the justice, who appeared and argued the case in this court. Whatever may be suggested about costs being incidental to the judgment occurs to us as scarcely applicable to this case, where the costs, instead of being an incident, were in fact the only contention which was tried—improperly tried, perhaps; the issue badly pleaded, probably. But still it was the only contention tried, and therefore seems not quite properly called, in this case, “incidental.” The verdict and judgment for costs in favor of defendants was separate and independent, and was not attached to any other judgment. It does not, therefore, seem to be appropriately called “ incidental.” We are of opinion that the proceeding of the justice in rendering the judgment of February 24th was clearly beyond his jurisdiction. (Code Civ. Proc., § 794; Winter v. Fitzpatrick, 35 Cal. 269; Weimmer v. Sutherland, 74 Cal. 343; Fox v. Meacham, 6 Neb. 530; Foist v. Coppin, 35 Ind. 471; Foster v. Alden, 21 Mich. 507; Stephens v. Santee, 49 N. Y. 35; Hamill v. Bosworth, 12 R. I. 124; People v. Delaware Common Pleas, 18 Wend. 558; Corthell v. Mead, 19 Col. 386.) In the Colorado case last cited it is held that, when a justice enters judgment on a verdict of a jury, his act is simply ministerial, and not judicial. That case further remarks: “ The judgment
The attempted judgment of February 24th was therefore void. Then, the question remaining for our consideration is, Can that judgment be reached and overturned upon a writ of certiorari? The respondent contends that an appeal lies to the district court from the justice court, from such judgment, and cites Ducheneau v. House, 4 Utah, 363; Saunders v. Seed Co., 6 Utah, 431; Trustees v. Shepherd, 139 Ill. 114; Sioux Falls Nat. Bank v. McKee (S. D., Jan. 26, 1892), 50 N. W. Rep. 1057; Livermore v. Campbell, 52 Cal. 75; Fox v. Nachtsheim, 3 Wash. 684.) He therefore contends that if an appeal lay from the judgment of the justice of February 24th the certiorari was properly dismissed by the district court. (Hayes v. District Court, 11 Mont. 225.) But let us examine whether, in fact and in substance, there is an appeal which reaches the attempted judgment of February 24th. Anderson’s Law Dictionary defines an “appeal” as, “To remove a cause to, a higher court for review and retrial.” In general terms, an appeal is a resort to an upper court, to review the action of a lower court.
In the justice court in this case there were two records, each of which is called in the argument a “judgment.” One was the first judgment, of February 16th; the other was the second or attempted judgment, of February 24th. Of the former, the defendants had no complaint. The latter was their grievance, which they wished to have righted. If the defendants could have appealed from the second judgment, and if they could have had that action of the justice reviewed, and if they could have had the district court decide whether the justice of the peace was right or wrong in his action of February 24th, and if, it appearing he was wrong in that
If it be suggested that an appeal by defendants from the judgment of February 24th would obtain for them a review' of the determination of the question of who should pay the costs of the action in the justice’s court, it may be replied that defendants had obtained a judgment in their favor once (February 16th) upon that subject (a judgment which had been set aside by the justice without jurisdiction), and, if there were appealing to do, defendants had the right to look to plaintiff to assume that burden. It is said in the Colorado case, cited above: “Did petitioners have a plain, speedy, and adequate remedy, by the ordinary course of law, for the action of the justice in refusing to enter judgment upon their verdict? It is urged that their remedy was by appeal, but this view is not sustained by sound reason, nor by the weight of authority.
It is said by the supreme court of California, as to another matter, but of kindred nature: “A mandate that’ the superior court proceed to a .hearing of the appeal on the merits, or to a retrial of the issues, would not annul, but simply ignore, the order dismissing the appeal. The order must first be annulled by a direct proceeding; that is, by certiorari. Such is the remedy when the court has entered a judgment or made an order in excess of jurisdiction.” (Levy v. Superior Court, 66 Cal. 292.) So, in the case at bar, by an appeal the defendants in the justice court would attack and destroy that which was not to them a grievance, but rather a benefit; that is, the judgment of February 16th. And they would never be able to attack or have reviewed the grievance which they sought to appeal from, and which, in name and in shadow, they would appeal from; that is, the attempted judgment of February 24th. We are satisfied that such an appeal would be wholly unsubstantial. It would not be a review or retrial of the matter complained of. (Seedefinitions of “appeal,” supra.) Its only characteristic of an appeal would be its name.
It is said in Sioux Falls Nat. Bank v. McKee (S. Dak., Jan. 26, 1892), 50 N. W. Rep. 1057: “To justify the issuance of the
We are of opinion that the case at bar is just such an one as is suggested in the closing words of that South Dakota case. The certiorari before us in this case is necessary “to save rights which would otherwise be lost.” It is necessary to save to the defendants in the justice court the right to have the illegal action of the justice on February 24th obliterated and destroyed, and, moreover, to have it destroyed without carrying down in such destruction the judgment of February 16th. Such right of defendants to demolish the illegal judgment of February 24th, and preserve the judgment of February 16th, could not be saved by an appeal on the part of the defendants, and such right could be saved by this writ of certiorari. (Fox v. Nachtsheim, S Wash. 684; Paul v. Armstrong, 1 Nev. 95.)
The result of these views is that we are of opinion that, conceding that an appeal did lie from the justice court to the district court, yet that such an appeal was one in name only, and was not an appeal in substance or in fact, as reaching to the grievance. Certiorari was therefore an appropriate remedy against the justice. The judgment of the district court, dismissing the writ of certiorari and affirming the judgment of the justice, is reversed, and the case is remanded, with instructions to the district court to sustain the writ of certiorari, and, in pursuance thereto, to annul the judgment which the justice of the peace attempted to render and enter on February 24th.
Reversed.
Dissenting Opinion
Viewed in the light of the facts disclosed by the record, it seems to me the foregoing is a
The taxation of costs is the only thing involved in this case; and the important—the vital—point upon which this decision turns is whether defendants pleaded a tender in the justice’s court. Indeed, that is really the only fact stated in the majority statement, outside of the mere mention of the nature of the case and how it came to this court; and that important proposition as to defendants’ plea of tender is reiterated in the majority statement of the ease. Now, if the record on file in this case showed that defendants pleaded in the justice’s court a tender prior to the commencement of the action, and that they followed it up, when the action was brought, by depositing in court the amount due, as required by section 504 of the Code of Civil Procedure in such cases, it would thereby clearly appear that the ruling of the district court was wrong, and
Wherefore is it said in the majority statement that defendants “now” and “here” “contend” that they did something —that defendants pleaded a tender—in a particular wherein the record discloses just what defendants pleaded? That fashion of statement, it seems to me, would appear extraordinary in any statement of facts upon which depended the solemn determination of the rights of litigants, but especially so in respect to pleadings prepared by counselors at law, in writing, which are set forth in the record. Even if the pleadings in the justice’s court had been stated orally, the law requires the same to be noted by the justice in his docket (Code Civ. Proc., § 770), and the docket entries are set forth in the record. Herein is the vital point on which the decision ought to and does turn,—the point of contention, and the one in respect to which the record was carefully scrutinized and discussed. And an examination of the record discloses that it does not show either that defendants pleaded in the justice’s court a tender of payment prior to the action, or that they followed up any such “contended” tender by deposit in court oí the amount admitted to be due, as required by statute in case a tender had been made. (Code Civ. Proc., § 504.)
The majority statement of facts does not come into direct conflict with the record, because that statement, as we have seen, asserts only that defendants “here contend” that they pleaded a tender. Forbearing comment, it is sufficient to bring to view these conditions respecting the treatment of the ease in this court to show the point and cause of dissension. I therefore proceed to an examination of the case as shown by the record.
It appears from the proceedings disclosed by the record in
This is the answer of defendants, as shown by the record. There is no denial that the note provided for recovery of reasonable fees for services of plaintiff’s attorney in prosecuting an action to enforce payment thereof, or that $25 was a reasonable fee for such services. It appears that the justice, on motion of plaintiff, struck out of said answer the allegations therein
The facts alleged as to tender show no legal tender whatever. Defendants’ counsel plainly recognize this, for having alleged the facts about Johnson’s claim against plaintiff for $22.16 “ damages,” and tender of payment of the amount due on the note, less that claim for damages, and recovery of judgment against plaintiff by Johnson in the justice’s court for that amount of damages—having interpolated all those facts into the case—defendants manifestly do not rely upon them as a legal tender, because they close their answer with an offer to allow judgment for the whole amount of the promissory note, “with interest to the present date.” Interest would have stopped at the date of tender, had a legal, tender been made. A tender less an amount of damages demanded by the debtor from the creditor would not ordinarily be a good legal tender at all, because the creditor would not be bound to accede to the opinion of the other as to the amount of damages. Even after the demand for damages had been fixed by judgment in the justice’s court it is not relied on as an offset; for it is expressly shown in the answer that defendants offered to have judgment entered against them for the full amount of the note, with interest to date of judgment, and the alleged facts as to judgment for damages were stricken out of the answer. Therefore, it left the answer of defendants with the allegation as to tendering payment, less said damages, followed by an offer to allow judgment to be entered against defendants for the full amount of plaintiff’s claim, with interest to date, but “without costs.” Now, while the answer failed entirely to pleád a legal tender, and the majority of this court do not affirm that the facts alleged in the answer constituted a legal tender, but cover the point by setting down in the statement of the case that, defendants “here contend” that
Turning to another view of the law, as applied to the facts disclosed by the record, it should be noted that the statute provides that “If the defendant, at any time before trial, offer in writing to allow judgment to be taken against him for a specified sum, the plaintiff may immediately have judgment.therefor, with the costs there accrued, but if he do not accept such offer before the trial, and fail to recover in the action a
In this attitude defendants stood in court, and demanded a jury trial, as disclosed by the record in this case; and a jury was impaneled, and the constable sent for witnesses, and some sort of a trial ensued, upon the demand of these defendants, whereby costs exceeding $100 accrued, as shown by the record, when in fact there was no issue whatever to try. It certainly did not require a jury to find that plaintiff should recover the amount of his note, “ with interest to present date,” when that was confessed by the written answer of defendants, nor to try the validity of an alleged offset which, although alleged, was not relied on, and was stricken out and abandoned. Nor was there need of a jury to try the question of a tender which had not been alleged, nor made good by a compliance with the statute if it had been alleged. There was absolutely nothing presented in the case to try. And, observe, the majority of this court do not venture, in the face of the record, to affirm the contrary. Nevertheless, defendants demanded a jury trial; and the upshot of the wrangle before the jury was that a verdict was returned to the effect that plaintiff have judgmeut for the amount of said note and interest, already confessed, but
When the real point for consideration is brought into view, as disclosed by the record, it is found to relate merely to the taxation of costs, which is a subject generally held to be incidental to the main recovery, and the costs provided by law are to be taxed as the law directs. The statute regulating practice in justices’ courts provides that “costs shall be allowed the prevailing party in the justice’s court.” (Code Civ. Proc., § 828.) But this provision, of course, is to be construed in harmony with section 797, which provides that the defendant may, at any time before the trial, offer, in writing, to allow judgment to be taken against him for a specified sum; and, if no greater sum is recovered in the action, he shall not be liable for the costs accruing after such offer is made. Section 799 provides that, “when the prevailing party is entitled to costs by this chapter, the justice shall add their amount to the verdict.” These provisions of statute gave the justice jurisdiction to tax the costs against defendants, when applied to the facts in the case as admitted. The plaintiff prevailed completely in this case, without the necessity of trial or verdict, as the pleadings stood.
I observe with astonishment that in the majority opinion it is asserted that “defendants prevailed.” If courts are instituted merely as a place for the propagation of costs on the “ contention” of a litigant in some matter outside of the record (without foundation, too, because in this case it was confessed that plaintiff ought to have judgment for all he asked) —if courts are instituted as a place for that purpose defendants prevailed, as the majority opinion is pleased to assert. But if the court is instituted for the purpose, among others, of enforcing delinquent obligations, to give judgment therefor, especially where defendants confess, by solemn pleading in writing, that plaintiff is entitled to all he asks, and to see that the provisions of statute are enforced and observed in such matters, then plaintiff prevailed. But I do not propose to dwell upon such a proposition. If, where a plaintiff brings an action in court, asking for a judgment for the amount of an obligation due, and the defendants, by written answer, confess that plain
Moreover, the district court properly dismissed the writ m certiorari, whereby the proceedings of the justice of the peace were brought up for review, on the ground that relators had a remedy by appeal, if dissatisfied with the action of the justice in taxing the costs as part of the judgment against them in this court. If so, certiorari could not be invoked to review and correct, even if erroneous, said action of the justice in the adjudication in his court. The statute (Code Civ. Proe., § 822) provides that “ any.party dissatisfied with a judgment rendered in a justice’s court may appeal therefrom to the district court of the county at any time within thirty days after the rendition of the judgment.” The statute regulating the use of the writ of certiorari (Code Civ. Proc., § 555) provides that “ the writ shall be granted in all cases when an inferior tribunal, board, or officer exercising judicial functions has exceeded the jurisdiction of such tribunal, board, or officer, and there is no appeal, nor, in the judgment of the court, any plain, speedy, and adequate remedy.” Relators were evidently dissatisfied as to the costs taxed against them as part of the judgment in the justice’s court, resulting from the adjudication of the case therein. The taxation of costs allowed bylaw belonged to the adjudication, and depended upon the facts shown therein; and in no other way could it be determined by any court whether the justice was right or wrong in taxing the costs against the defendants. It is true, in this particular case, the facts are all shown and admitted by the pleadings, and thereby the propri
In the case of State v. Evans, 13 Mont. 239, it was held that the action of the justice there shown could not have been corrected on appeal; hence the jurisdictional question involved in the action of the justice was properly reviewable by a writ oí certiorari. "Why? Because on appeal the appellate court would adjudicate and determine the issues in the case by trial de novo; but such trial of the issues involved in the case would not include the review or correction of the irregularities or unwarranted action on the part of the justice as to forfeiting defendant’s bail money deposited to guarantee her appearance, which was in excess of the justice’s jurisdiction, and was not involved in the issues, either of fact or law, to be determined on appeal, if appeal had been taken. But here, in the present case, it is insisted that relators have an adequate remedy by appeal, because the action of the justice complained of was directly concerned with the adjudication of the case, and depended upon the adjudication and determination thereof, which would also come into adjudication and necessarily be determined by the appellate court on appeal. This seems to be true. The appellate court, on appeal, would determine every thing in dispute involved in the issue, and apply the law to the facts found or admitted. In thus passing judgment on the appeal and trial de novo, the appellate court must necessarily also assess costs against the parties subject thereto, according to the requirements of law and the facts shown, as part of the judgment; and by appeal the party dissatisfied with the action of the justice in taxing the costs would clothe the district court with power to determine the question as to who .should be subjected to the' costs of the case. It cannot be denied that defendants had the right of appeal, and that the action of the justice complained of would thereby have been placed directly within the adjudication of the district court for such determination as the law and the facts demanded. If that be true,
!The foregoing discussion relates entirely to the question o. taxation of the costs provided by law, as shown by the proceedings in the action, and to the jurisdiction of the justice to tax such costs as directed by statute in favor of the party prevailing in the principal recovery. If the justice of the peace should add to the judgment any sum, under the guise of costs, not authorized by law and the proceedings as legitimate costs in the case, such as taxation of an attorney’s fee, where the pleadings showed no foundation therefor, his excessive action in that respect would undoubtedly be subject to correction through the writ of certiorari, because such element added to the judgment would be found, on review of the proceedings, to be entirely foreign to the case, and hence in excess of the jurisdiction of the justice —as much so as though he should adjudge any other recovery in no way pertaining to the case presented. There appears in this case such an element, for the return of the justice to the writ of certiorari shows that on the 24th of February, when he considered the motion, and determined to assess the costs of the action to defendants, he also, on motion, inquired, by hearing of evidence, as to what would be a reasonable fee for services of plaintiff’s attorney in prosecuting the action to enforce collection of said note, and determined that $50 was a reasonable fee for such services, and included that sum in the costs taxed against defendants. As already shown, defendants did not deny the allegation of the complaint that the note provided for the recovery of a reasonable attorney fee in case the obligation was enforced by action at law, nor that $25, as alleged, was a reasonable fee for that service. No foundation appears for the assessment of any further sum in that respect; and such assessment, therefore, is entirely unwarranted, and in excess of the jurisdiction of the justice in the case. I think the district court should have modified the proceedings of the justice by eliminating from the assessment of costs the excessive sum of $25 taxed as attorney fee. This point, however, may not have been brought to the attention of the district court. The case may have been argued in the dis