State ex rel. Chicago, Milwaukee & St. Paul Ry. Co. v. Gibb

Montana Supreme Court

State ex rel. Chicago, Milwaukee & St. Paul Ry. Co. v. Gibb

193 P. 1114, 58 Mont. 518, 1920 Mont. LEXIS 149

CourtMontana Supreme Court

DecidedNovember 19, 1920

DocketNo. 4,468

StatusPublished

Cited by1 cases

This text of 193 P. 1114 (State ex rel. Chicago, Milwaukee & St. Paul Ry. Co. v. Gibb) is published on Counsel Stack Legal Research, covering Montana Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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State ex rel. Chicago, Milwaukee & St. Paul Ry. Co. v. Gibb, 193 P. 1114, 58 Mont. 518, 1920 Mont. LEXIS 149 (Mo. 1920).

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Opinion

MR. JUSTICE MATTHEWS

delivered the opinion of the court.

Certiorari. In March, 1918, issue was joined in a civil action in the justice court at Miles City; nothing further was done in the case until April 1, 1919, when the justice of the peace set the cause for April 5, but on that date made an entry continuing the ease “for the present.” Later June 2, 1919, was fixed as the day of trial, but on that day the justice of the peace was absent from the city. The cause was then set for trial on June 16, 1919, and counsel given written notice thereof. On June 16, the defendant not appearing within one hour, judgment was entered for the plaintiff. Thereupon a writ of certiorari was issued out of the district court of Custer county, return thereto made, and a hearing had, resulting in a judgment vacating and setting aside the judgment of the justice court. This appeal is from the judgment.

1. Appellant contends that “The court erred in assuming jurisdiction of this cause by certiorari proceedings, as the relator had adequate remedy by appeal.” If an appeal lies, [1,2] certiorari does not lie, and it is immaterial, under our statute, whether appeal affords an “adequate remedy” or not. (State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820, overruling former decisions to the contrary.) However, the right of appeal presupposes jurisdiction in the lower court to enter a judgment or order from which an appeal may be taken. If the lower court is without jurisdiction, none is acquired by the appellate court on an attempted appeal. (Chadwick v. Chadwick, 6 Mont. 566, 13 Pac. 385; In re Searles, 46 [3] Mont. 322, 127 Pac. 902.) All appeals from a justice court to the district court are tried anew (Rev. Codes, sec. 7122); the district court then “sits as a justice of the peace in that case, and with no greater jurisdiction” (State ex rel. Grissom v. Justice Court, 31 Mont. 258, 78 Pac. 498).

2. The remaining assignments challenge the correctness of [4] the judgment. The district court found that the justice court lost jurisdiction by failing to comply with the provisions of Chapter 6, Title 11, Part 2, of the Revised Code, and in this [520]*520was clearly correct. This question was settled in State ex rel. Akin v. Williams, 50 Mont. 582, 148 Pac. 333, and requires no further discussion.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.

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MR. JUSTICE MATTHEWS

delivered the opinion of the court.

Certiorari. In March, 1918, issue was joined in a civil action in the justice court at Miles City; nothing further was done in the case until April 1, 1919, when the justice of the peace set the cause for April 5, but on that date made an entry continuing the ease “for the present.” Later June 2, 1919, was fixed as the day of trial, but on that day the justice of the peace was absent from the city. The cause was then set for trial on June 16, 1919, and counsel given written notice thereof. On June 16, the defendant not appearing within one hour, judgment was entered for the plaintiff. Thereupon a writ of certiorari was issued out of the district court of Custer county, return thereto made, and a hearing had, resulting in a judgment vacating and setting aside the judgment of the justice court. This appeal is from the judgment.

1. Appellant contends that “The court erred in assuming jurisdiction of this cause by certiorari proceedings, as the relator had adequate remedy by appeal.” If an appeal lies, [1,2] certiorari does not lie, and it is immaterial, under our statute, whether appeal affords an “adequate remedy” or not. (State ex rel. King v. District Court, 24 Mont. 494, 62 Pac. 820, overruling former decisions to the contrary.) However, the right of appeal presupposes jurisdiction in the lower court to enter a judgment or order from which an appeal may be taken. If the lower court is without jurisdiction, none is acquired by the appellate court on an attempted appeal. (Chadwick v. Chadwick, 6 Mont. 566, 13 Pac. 385; In re Searles, 46 [3] Mont. 322, 127 Pac. 902.) All appeals from a justice court to the district court are tried anew (Rev. Codes, sec. 7122); the district court then “sits as a justice of the peace in that case, and with no greater jurisdiction” (State ex rel. Grissom v. Justice Court, 31 Mont. 258, 78 Pac. 498).

2. The remaining assignments challenge the correctness of [4] the judgment. The district court found that the justice court lost jurisdiction by failing to comply with the provisions of Chapter 6, Title 11, Part 2, of the Revised Code, and in this [520]*520was clearly correct. This question was settled in State ex rel. Akin v. Williams, 50 Mont. 582, 148 Pac. 333, and requires no further discussion.

The judgment is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Associate Justices Holloway, Hurly and Cooper concur.

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193 P. 1114, 58 Mont. 518, 1920 Mont. LEXIS 149, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-chicago-milwaukee-st-paul-ry-co-v-gibb-mont-1920.

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