144 P. 564 | Mont. | 1914
delivered the opinion of the court.
Mandamus to compel the district court of Yalley county and Frank N. Utter, as judge thereof, to vacate an order staying the entry of judgment upon a verdict and to order the entry of such judgment. The uncontroverted facts are as follows: Ruth Jones commenced her action in the above court against W. F. Shannon
In his return to the alternative writ, the respondent Judge Utter sets forth that the order complained of is not and was not intended as a final order denying judgment in any event, but was an order authorized by section 6800, Revised Codes, staying the entry of judgment pending reservation of, the cause for argument and further consideration; that, upon making the order, the court requested counsel to argue the question whether the court could, on its own motion, set aside the verdict .and grant a new trial, which question was argued by counsel on July 20; that at the conclusion of the argument the court requested counsel to present briefs or citations of authority upon said question, but no such briefs or citations have been furnished by either party.
Prom this return it is perfectly clear that the district court,
That the court may, under some circumstances, reserve a case for argument or grant a stay of proceedings is not to he denied; but in view of the fact that the prevailing party is prima facie entitled to have judgment entered as directed in the above section (Consolidated G. & S. Min. Co. v. Struthers, 41 Mont. 565, 111 Pac. 152), and that a positive duty is thereby imposed upon the clerk from which he is absolved, without recourse by the prevailing party, pending reservation or stay, it must be that neither reservation nor stay can be allowed ex gratia or without adequate reason. Generally speaking, this is certainly true of a stay after judgment, for this court so declared in State ex rel. Robinson v. Clements, 37 Mont. 96, 127 Am. St. Rep. 701, 94 Pac. 837. A stay before judgment is in reality a more serious matter than a stay after judgment. In this connection a great authority has said: “If there is no doubt as to what judgment is proper, the better practice is to enter it at once. The judgment may as well be set aside as the verdict. Therefore such proceedings as may be appropriate to securing a new trial, or any other right of the losing party, can be prosecuted as advantageously upon granting a stay of proceedings upon the judgment as upon the verdict. The immediate entering of judgment authorizes the making up of the judgment-roll, and thus secures a lien on the judgment debtor’s real estate. To this security he is at once justly entitled. If the court delays in granting' it to him, he may, during the stay of proceedings, be deprived of the fruits of his litigation.” (1 Freeman on Judgments, sec. 42; Hutchinson v. Bours, 13 Cal. 50.) To this we may add: The stay complained of was confessedly in aid of a new trial
Nor, in any proper sense, can it be said that the “case” was reserved for argument or further consideration. The “case” was held up pending the argument of a collateral matter (1 Spelling, New Trial & Appellate Procedure, sec. 14), upon a proposition no more open to question in this state than if it were written in unmistakable language in the Code itself. We
It is argued by counsel for respondents that the jury returned three verdicts; hence it cannot be told what the verdict is, and no judgment can be entered in conformity with it. As indicated
It is also contended by counsel for respondents that, assuming the verdict to be good, the court had the right to reserve the case for argument, and its action in so doing, even if erroneous, cannot be questioned in this proceeding. The rule that
The relator was entitled to have judgment in conformity with