127 P. 88 | Mont. | 1912
delivered the opinion of the court.
This action was commenced in the justice’s court of Havre township, Chouteau county, on June 12, 1909, to recover damages for a trespass by defendant upon land belonging to plaintiff. In the justice’s court the plaintiff had judgment. The defendant having given notice of appeal to the district court and filed his undertaking with the justice, the record was filed in that court on July 28, 1909. The notice was properly em titled in the court and cause, and reads as follows: “You will please take notice that the defendant in the above-entitled action hereby appeals to the district court of the twelfth judicial district in and for the county of Chouteau from the judgment therein made and entered in the said justice’s court on the 8th day of July, 1909, in favor of said plaintiff and against said defendant, and from the whole thereof. This appeal is taken on questions of -both law and fact. ’ ’ On June 1, 1910, the attorneys for the respective parties filed a stipulation for a continuance of the cause for the current term because defendant was ill. On August 4, 1910, another stipulation was filed, by the terms of which the parties agreed to take the deposition of a witness to be used at the trial. On July 15, 1911, other counsel than the one who had theretofore represented the defendant filed with the clerk a notice that defendant desired to withdraw his appeal, and directed him to dismiss it. It does not appear that this notice was ever called to the attention of the court, or that the clerk attempted to act upon it. On July 17, neither defendant nor his counsel being present; the cause was tried without a jury, and submitted to the court for judgment. On July 21 the court rendered its decision dismissing the appeal, and ordering judgment in favor of defendant for his costs and disbursements on the appeal. The judgment was entered on October 5. ’ The ground upon which the court proceeded was that'the notice of appeal from the justice’s court was fatally defective, in that it “does not state the amount or characterize the judgment entered in the justice’s court,” and hence that
The first question submitted for decision is: Did the notice
In their brief counsel contend, also, that by joining in the stipulations for- the continuance of the cause and for the taking of the deposition, counsel for defendant waived any defect in the notice of appeal, and, having thus submitted the rights of defendant to the jurisdiction of the court, put it beyond its power to dismiss the appeal. In view of the conclusion already stated as to the sufficiency of the notice, we deem it unnecessary to notice the contention.
Counsel contend, further, that, when an appeal has once been taken and the record has been lodged with the clerk of the
The judgment is reversed and the cause is remanded for further proceedings.
Reversed and remanded.