State ex rel. Akin v. Williams

148 P. 333, 50 Mont. 582, 1915 Mont. LEXIS 44

Opinion

MR. JUSTICE SANNER

delivered the opinion of the court.

On January 8, 1914, in the justice’s court of Chinook Township, before F. N. Williams, justice of the peace, the Empire Cattle Company commenced an action against J. N. Akin, to recover a sum of money alleged to be the unpaid price of a mare sold and delivered. Akin answered and by consent the cause was set down for trial on February 2, 1914, at 10 A. M. On January 31, 1914, one'Schuler, manager of the cattle company, orally, out of court and without the presence or assent of Akin, requested, the justice to postpone the trial to February 10; on February 2, 1914, Akin appeared, but the cattle company was not present nor represented; whereupon Akfn demanded that the cattle company’s default for nonappearance be entered and that the cause be dismissed; this was refused with the information that the cause had been continued to February 10, at 10 A. M. On February 10 the cattle company appeared, but Akin was not present nor represented; whereupon, after waiting one hour, the justice heard testimony in support of the complaint, and rendered judgment against Akin in accordance with the prayer thereof. Upon these facts, as made to appear by return to a writ of certiorari issued out of the district court of Blaine county, at the instance of Akin, that court annulled the judgment of the justice, and we are now asked by the present appeal to review the judgment of the district court.

The judgment appealed from was correct. The justice did not [1] continue the cause upon his own motion for any of the reasons recognized by section 7034, Revised Codes; nor by consent of the parties, as may be done under section 7035, but upon application of the plaintiff, without any showing such as required by section 7036. His action was therefore wholly unauthorized, and its effect, coupled with his refusal to dispose of the cause when defendant Akin appeared on February 2, was to lose jurisdiction (Morrissey v. Blasky, 22 N. D. 430, 134 N. W. 319). Thereafter the cause was coram non judice, the judgment entered was without jurisdictional basis, and was properly annulled by the district court.

The judgment appealed from is affirmed.

Affirmed.

MR. Chief Justice Brantly and Mr. Justice Holloway concur.

Motion for rehearing denied July 7, 1915.