33 Mont. 212 | Mont. | 1905
delivered the opinion of the court. Q
Prohibition. This proceeding was brought in- the district court of Silver Bow county to restrain the defendant, a justice of the peace, from proceeding to try and determine a certain cause pending before him as such justice, entitled Samuel Hastie, Plaintiff, v. William F. Matthews, Defendant, for that the said justice has no jurisdiction of the subject matter thereof. Upon the hearing in the district court on the day fixed for the defendant to show cause under the alternative writ, the court dismissed the proceeding and entered judgment for defendant. This appeal is from the judgment.
The question submitted to the court is, whether the justice’s court has jurisdiction of the subject matter of the action. The complaint filed in that court is voluminous, and vague and indefinite in its allegations; but if it states a cause of action at all, upon any theory, it states one for deceit of which the defendant was guilty in connection with the sale by him to plaintiff of an interest in a concentrator and machinery used therein
The civil jurisdiction of justices’ courts, as was pointed out in Oppenheimer v. Regan, 32 Mont. 110, 79 Pac. 695, is limited by the Constitution (sections 21, 22, Article VIII) and by the provisions of the Code of Civil Procedure (section 66) enacted in pursuance thereof. In that case it was said: “Within the limitations prescribed by the Constitution, the legislature has power to confer jurisdiction upon justices’ courts in any class of cases; but these courts, being thus constituted courts of special and limited jurisdiction, are without power to hear and determine any case when such power is not, specifically or by clear implication, conferred by the statute defining their powers. ’ ’
We do not find in section 66, supra, any express or implied grant of jurisdiction to try and determine an action for deceit. While, so far as the provisions of the Constitution are concerned, the legislature might have granted the jurisdiction in question, it has failed to do so. Whether this omission was intentional or through oversight, it is not necessary for this court to inquire. It is sufficient for present purposes to say that it has not done so.
The wrong complained of by the plaintiff in the justice’s court was done in connection with the contract of sale of the property, but the subject matter of the action is not the contract or the breach of it, but the wrong wrought by the deceit by reason of which the plaintiff suffered damage. The action is not one ex contractu, but ex delicto, and is not enumerated among the actions ex delicto of which the justice’s court has jurisdiction. That court was, therefore, without power to proceed.
No question is made in this court as to whether the defend- ' ant has pursued the proper remedy. This feature of the case we have not considered.
The district court was in error in dismissing the application. The judgment is therefore reversed. Reversed.