25 P. 1032 (Mont. 1891), State v. Eddy

Citation:25 P. 1032, 10 Mont. 311
Opinion Judge:BLAKE, C.J.
Party Name:STATE ex rel. MATHEWS et al. v. EDDY.
Attorney:Chas. O'Donnell, for appellants. F. T. McBride, for respondent.
Judge Panel:HARWOOD and DE WITT, JJ., concur.
Case Date:January 26, 1891
Court:Supreme Court of Montana

Page 1032

25 P. 1032 (Mont. 1891)

10 Mont. 311

STATE ex rel. MATHEWS et al.



Supreme Court of Montana

January 26, 1891

Appeal from district court, Silver Bow county; JOHN J. McHATTON, Judge.

Page 1033

Chas. O'Donnell, for appellants.

F. T. McBride, for respondent.


This is an appeal from the judgment of the court below in refusing to issue a peremptory writ of mandate upon the application of the appellants. The affidavit of the parties, who are beneficially interested, contains the following statements, which are relevant and material to this inquiry. That said John Eddy is a lawful justice of the peace of the township of Silver Bow, county of Silver Bow, and state of Montana. That said William H. Mathews and C. F. Curtis were doing business in Walkerville, county of Silver Bow, aforesaid, under the firm name of Mathews & Curits, and commenced an action September 12, 1889, against Sarah Borlace, in the justice's court of said township, to recover the sum of $299 for goods sold and delivered to her by said Mathews & Curits. That said Borlace left the territory of Montana, September 12, 1889. That on said 12th day of September, 1889, said Mathews & Curtis filed their complaint and affidavit for and bond on attachment in said action in said justice's court, and caused a summons to be issued thereon. That a summons and writ of attachment were then issued in said action, and placed in the hands of O. B. Benson, a constable of said county; and that said summons was returned by said constable with his return, showing that by diligent search he was unable to find said Borlace; and that said writ of attachment was returned by said constable, showing that he levied upon and attached, September 12, 1889, the following described property, to-wit: Money due said Borlace from Ben Clark, $27; D. Cunningham, $42; Frank Sands, $15; Al Abbot, $160; and that said parties acknowledged such indebtedness, and promised to pay said moneys into court. That said Curtis, as one of said plaintiffs, filed September 20, 1889, his affidavit with said justice's court, and obtained an order that service of said summons be made by publication in the Butte Mining Journal; that said summons was then issued, and published in said newspaper for the period of 30 consecutive days, to-wit, from the 22d day of September, 1889, to the 22d day of October, 1889. That the foregoing proceedings were had in said court when J. J. Hopkins was a justice thereof; and that said John Eddy succeeded, December 10, 1889, the said Hopkins. That the said Eddy, as the justice of said court, signed and entered, December 12, 1889, a judgment in favor of said Mathews & Curtis, and against said Borlace, for the sum of $299. That an execution was issued August 11, 1890, by the said Eddy, as such justice, and placed in the hands of the sheriff of said county. That said sheriff, by his deputy, one Richards, and said Abbot, went into the office of W. C. Shippen, who was acting as the agent for said Borlace, and said Abbot placed the sum of $155, the amount he claimed he owned the said Borlace, and the money which was garnished in his hands, upon the table of said Shippen; and that, while said money was on said table, the said Richards, as said deputy-sheriff, served said Shippen with a copy of the execution issued by said Eddy, and also a garnishee notice. That the said Shippen made, August 15, 1890, a return to the said sheriff, showing that he held in his hands as the property of said Borlace the sum of $29.90, and that he paid, August 14, 1890, to F. T. McBride, the sum of $100, and retained for himself the sum of $25. That Charles O'Donnell, as the attorney of said Mathews & Curtis, made, August 20, 1890, the affidavit required by section 803 of the Code of Civil Procedure, and obtained an order from said Eddy, as said justice of said court, commanding the said Shippen to appear before him at his office on said day at 7 o'clock, P. M., and be examined on oath concerning any money that he may have in his possession or under his control, and as to any debts, money, effects, credits, and other property owing to or belonging to said Borlace; and that said order was then served upon said Shippen. That said Shippen appeared at said time and place, in pursuance of said order, before said Eddy, as said justice, and was sworn according to law in such cases. That said Shippen was there with his counsel, F. T. McBride. That the said examination of said Shippen was postponed by said justice until August 21, 1890, at 9 A. M. That it was then postponed until August 22, 1890, at 10 A. M. That said Shippen appeared at said time before said Eddy, as said justice, and objected to any examination by the counsel for said Mathews & Curtis. That said counsel, Charles O'Donnell, demanded of said Eddy, as such justice, the privilege of examining the said Shippen, which was then refused. That said Mathews & Curtis, by said counsel, requested said court to make an order placing said Shippen in the custody of the sheriff aforesaid, for refusing to testify in this proceeding; and

Page 1034

that said Eddy, as such justice, refused to grant said order, or compel said Shippen to testify; and that the hearing was then continued until August 22, 1890, at 7 P. M. That said Shippen, in pursuance of said order, appeared before said Eddy, as such justice. That counsel for said Mathews & Curtis then asked said Shippen several questions, which the said Shippen refused to answer; and that said Eddy, as such justice, refused to allow said counsel to put any questions to said Shippen, but ordered said Shippen to be discharged from further attendance at said court, and dismissed the said proceedings. And that this...

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