State, Helena Adjustment Company v. Dist. Ct. of Lewis

Montana Supreme Court

State, Helena Adjustment Company v. Dist. Ct. of Lewis

19 P.2d 226, 92 Mont. 587, 1932 Mont. LEXIS 126

Montana Supreme Court·Decided May 7, 1932·No. No. 6,994.·Published·Cited by 7 cases

Opinion

PEE CUBIAM.

The application for an alternative writ •of prohibition is denied. The notice of appeal, while not ■commended as a model, is not so defective as to fail to give the district court jurisdiction. It directed the attention of the adverse party to the fact that the judgment will be the subject of review in the appellate court. (State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 Pac. 580. And see In re Day, 18 Wash. 359, 51 Pac. 474.)

The weight of authority is that a statute providing that an attorney shall not become surety for his client is merely directory, and that the obligation, when once entered into, is not void, although the violation of the ruling statute may subject the attorney to punishment for contempt. In other words, the obligation is simply defective. (Note to State v. Babin, 18 Ann. Cas., p. 838; DeJarnett v. Marquez, 127 Cal. 558, 78 Am. St. Rep. 90, 60 Pac. 45.)

Statutes must be liberally construed to maintain the right of appeal. (Morin v. Wells, 30 Mont. 76, 75 Pac. 688; Krause v. Insurance Co. of North America, 73 Mont. 169, 235 Pac. 406; State ex rel. Stevens v. Keaster, 82 Mont. 126, 266 Pac. 387.)

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PEE CUBIAM.

The application for an alternative writ •of prohibition is denied. The notice of appeal, while not ■commended as a model, is not so defective as to fail to give the district court jurisdiction. It directed the attention of the adverse party to the fact that the judgment will be the subject of review in the appellate court. (State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 Pac. 580. And see In re Day, 18 Wash. 359, 51 Pac. 474.)

The weight of authority is that a statute providing that an attorney shall not become surety for his client is merely directory, and that the obligation, when once entered into, is not void, although the violation of the ruling statute may subject the attorney to punishment for contempt. In other words, the obligation is simply defective. (Note to State v. Babin, 18 Ann. Cas., p. 838; DeJarnett v. Marquez, 127 Cal. 558, 78 Am. St. Rep. 90, 60 Pac. 45.)

Statutes must be liberally construed to maintain the right of appeal. (Morin v. Wells, 30 Mont. 76, 75 Pac. 688; Krause v. Insurance Co. of North America, 73 Mont. 169, 235 Pac. 406; State ex rel. Stevens v. Keaster, 82 Mont. 126, 266 Pac. 387.)

State, Helena Adjustment Company v. Dist. Ct. of Lewis, 19 P.2d 226, 92 Mont. 587, 1932 Mont. LEXIS 126 (Mo. 1932).

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Opinion

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