27 Mont. 522 | Mont. | 1903
delivered tbe opinion of tbe court.
In November, 1896, tbe Oudaby Packing Company commenced an action in claim and delivery in tbe justice of tbe peace court for Silver Bow towinsbip against Samuel J. Reynolds, sheriff of Silver Bow county, Montana, to recover possession of certain personal property, or for tbe value thereof in ease possession could not be recovered, and for damages for its retention. After an amended complaint was filed, a summons was issued, returnable November 16 th at 2 o’clock p. m., and placed in tbe bands of Evan Herbert, a constable in said county, wbo made service by delivering a copy thereof to tbe defendant, Reynolds. On- November 16th, after waiting one hour after return time., and no appearance having been made by tbe defendant, bis default was entered, and, proof having been made sufficient to. satisfy tbe court, a judgment for tbe plaintiff as prayed for in tbe amended' complaint was entered. On November 28th tbe defendant, Reynolds^ appeared in tbe action by a motion to set aside tbe judgment and open tbe default, upon tbe ground that summons bad not been served in tbe proper manner, or by any proper person authorized to make service thereof. This motion was thereafter overruled. On April 23, 1898, a writ of certiorari was issued from tbe district court, directed to the justice of tbe peace, requiring him to certify up to tbe district court a transcript of tbe record and proceedings bad in tbe case of Cudahy Packing Company v. Reynolds, but no return thereto seems to have been made until December 8, 1898, when a transcript of tbe record was filed in
Numerous errors are assigned, but we will consider only two: (1) The court erred in issuing a writ of certiorari, for the reason that the sheriff had a plain, speedy, and adequate remedy at law by appeal; and (2) the district court erred in entering its judgment, for the reason that the judgment obtained in the justice of the peace court had been satisfied -long prior to the date of entry of the judgment in the district court.
1. It is contended that certiorari would not lie because the defendant, having appeared and moved the court to* set aside the judgment -and open the default, upon the court’s refusing to do so, could have appealed from the judgment i» the district court, and there have had, upon that appeal, every question reviewed and determined which he could have by the writ of certiorari. Section 1161 of the Code of Civil Procedure among other things provides: “* * * There is no appeal from a judgment by default rendered in a justice’s or police eoqrt, ■except on questions of law which appear on the face of the papers or proceedings, and except in cases when the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default or judgment. * * *” In State ex rel. Shanahan v. Lindsay, 22 Mont. 398, 56 Pac. 827, this portion of Section 1761 received careful consideration and construction by this court, with the conclusion reached that after the justice’s court has overruled a motion to vacate a default judgment an appeal will lie to the district court, and on that appeal the dis
2. It is further urged that after tbe writ of certiorari issued, but before tbe justice of the peace made bis return thereto, and long prior to tbe final bearing by tbe district court, which resulted in tbe judgment herein appealed from, tbe judgment in tbe case of Cudahy Packing Company v. Reynolds had been fully satisfied and discharged of record, and that this fact was before the district court in the transcript of tbe justice which be filed in return to tbe writ. An examination of that portion of the record containing tbe return, of tbe justice of tbe peace shows the satisfaction and discharge of tbe judgment, duly acknowledged of record by tbe attorney for tbe plaintiff in that action on July 15, 1898. With this entry before tbe district court, wa fail to see bow that court could malee and enter a judgment annulling and setting aside a judgment of tbe justice of tbe peace court which was not then, and bad not been for a year, in existence.
For tbe reasons herein set forth, tbe judgment appealed from is reversed, and tbe cause remanded, with directions to tbe lower court to set aside tbe judgment made and entered on tbe 28th day of July, 1899, and dismiss tbe certiorari proceedings.
Reversed and remanded.
