10 Mont. 134 | Mont. | 1890
The respondent recovered a judgment for damages for personal injuries which he sustained by reason of an excavation in a street within the city of Helena. The motion of the appellant for a new trial was overruled, and this action of the court below must be examined.
A question of practice will be considered before we inquire into the merits of the case. The appellant filed May 21, 1890,
The statutes of the States of California and New York, which are similar to the Code of Civil Procedure of this State, supra, have been construed by their courts to prohibit the extension of this period of time, or the allowance of amendments to the motion or notice after its expiration. (Bear River & A. W. & M. Co. v. Boles, 24 Cal. 354; Ellsassar v. Hunter, 26 Cal. 279; Cooney v. Furlong, 66 Cal. 520; Lavalle v. Skelly, 90 N. Y. 546.) These authorities conform to the intention of the legislature, and require us to uphold the ruling of the court below in this respect.
The merits of the controversy depend upon one proposition.'
The following ordinances were in force at the times when the respondent received the injuries which are described in the pleadings: “Sec. 1. That said city of Helena hereby assumes for itself the care and responsibility of streets, avenues, and alleys only of that portion within the corporate limits which was originally entered by the probate judge of Lewis and Clarke County, Montana, as trustee for the occupants, as the Helena townsite, and exclusive of all portions thereof deeded by said probate judge in block to private claimants, and by them platted as additions to Helena.” (Ordinance No. 21.) “Sec. 5. No
It appears that the ordinances of the city of Helena have been complied with, and that the party who caused the excavation complained of to be made, obtained from the committee on building permits the authority to do the work.
It is contended on behalf of the appellant that there is no law which allows the respondent to maintain this action. The authorities relating to the matter are numerous and conflicting, and cannot be critically examined and compared in this opinion. This question has not been passed upon by the Supreme Court of the Territory or State, and we are called upon to lay down the rule which shall control similar controversies in the absence of legislative enactment. We will state in a general way the views of the courts in order that the points of difference may
We have already intimated that we do not intend to enter upon the difficult task of pursuing an independent investigation and ascertaining the true principle of law, and determining the effect of statutes upon decisions. Our opinion is controlled by an important consideration of another nature. At the December term, 1862, and prior to the organization of the Territory of Montana, the Supreme Court of the United States in Nebraska City v. Campbell, 2 Black, 590, heard a case which arose in the Territory of Nebraska. Mr. Justice Nelson in the opinion said: “The law is well settled in respect to public municipal corporations, upon which the duty is imposed to construct and repair, or to keep in repair streets or bridges, and upon which is also conferred the means of accomplishing such duty, that they are liable for any special damage arising out of neglect in keeping the same in proper condition. The principle
The city of Helena was incorporated by an act of the legislative assembly of the Territory of Montana, which was approved February 22, 1881. The respondent was injured August 29, 1888, and filed December 22,1888, his complaint in this action. During these times, the decisions of Nebraska City v. Campbell, supra, and Barnes v. District of Columbia, supra, were binding upon the courts of the Territory. With full knowledge of the legal consequences of the proceedings, it was duly ordained that “said city of Helena hereby assumes for itself the care and responsibility of streets, avenues, and alleys.” The liability, which had been accurately defined, has not been restricted by the legislative department, and we can presume that the rule stated by the Supreme Court of the United States was satisfac
The judgment is affirmed with costs.