22 Mont. 398 | Mont. | 1899
In making this order the court said to relator in substance : “You are not to be heard in this court upon this appeal further than to enable this court to determine that your showing in the justice’s court was not and is not sufficient to warrant the setting aside of the default judgment. This determination has been reached. This court has no jurisdiction for any other purpose. Therefore you are not entitled to an appeal in this case. ’ ’ The question presented, therefore, is : has the district court refused to entertain the appeal for all purposes for which it should have been entertained? The Constitution, Article VIII, Section 23, grants the right of appeal “from justice’s courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law. ’ ’ The Code of Civil Procedure, Section 1760, provides : £ ‘Any party dissatisfied with a j udgment rendered in a civil action in a police or 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. ’ ’ This section also further provides how the appeal may be taken, but the right of appeal provided for is as broad as that granted by the Constitution, and extends to all cases without exception. Section 1761 provides : “All appeals from justices’ or police courts must be tried anew in the district court, on the papers filed in the justice’s or police court, unless the court, for good cause shown, and on such terms as may be just, allow other or amended pleadings to be filed in such action. The court may order new or amended pleadings to be filed. Each party has the benefit of all legal objections made in the justice’s or police court. When a judgment is reversed or set aside on a question of law arising in the justice’s or police court, the district court must either try the case anew or render a judgment. There is no appeal from a judgment by default rendered in a justice’s or police court, 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. If the judgment
We have remarked at length upon this section of the statute for the reason that there seems to be some misapprehension as to its scope and meaning, notwithstanding the construction given to it, as well as the similar provisions in the Compiled Statutes of 1887, in Gage v. Maryatt, 9 Mont. 265, 23 Pac. 337, and Maxey v. Cooper, 21 Mont. 11, 54 Pac. 562. The views here expressed are in conformity with those there laid down.
Under the construction given to this section by the district court, as shown by the order made in the case under consideration, the appeal did not lie for any purpose other than for the court to determine that it did not. Under this view, the district court could do nothing else but dismiss the appeal; and yet this could not be done for the reason that the court had already decided that there was no ground for dismissal. The district court should have entertained the appeal for a trial de novo as it was tried, or should have been tried, in the justice’s court. The court refused to entertain the appeal and enter the proper judgment. If no question of law appears on
Let tbe peremptory writ issue, accompanied by a copy of this opinion, with directions to tbe district court to proceed in accordance with tbe views herein expressed.