Curn v. Perkins

• Decision Date: 05 March 1910
• Citation: 107 P. 901,40 Mont. 588
• Parties: CURN v. PERKINS.
• Court: Montana Supreme Court

107 P. 901

40 Mont. 588

CURN v. PERKINS.

Supreme Court of Montana

March 5, 1910

Appeal from District Court, Powell County; Geo. B. Winston, Judge.

Action by Amelia Curn against John Perkins. Judgment for defendant and plaintiff appeals. Affirmed.

John R Boarman, for appellant.

J. H Duffy and S. P. Wilson, for respondent.

SMITH J.

The plaintiff began this action in the district court of Powell county for the purpose of foreclosing a real estate mortgage securing the payment of a note for $1,000. The cause came on regularly for trial before the court sitting with a jury, on the 11th day of February, 1909. The jury returned a verdict in favor of the defendants. Upon this verdict a judgment was rendered on the 18th day of February, 1909. The record contains what purports to be a notice of intention to move for a new trial, with affidavit of service dated February 23 1909, thereto attached. This affidavit of service reads as follows: "S. P. Wilson, being duly sworn upon oath, deposes and says that he is now and was at all the times hereinafter mentioned, over the age of 21 years; that he is one of the attorneys for and of the plaintiff in the above-entitled action; that on the 23d day of February, 1909, your affiant deposited in the United States post office situated in the city of Deer Lodge, county of Powell, state of Montana, a true copy of the notice of intention to move for a new trial in the above-entitled action, in an envelope, with the postage thereon prepaid, and that said envelope containing the said copy of said notice of intention aforesaid was addressed to John R. Boarman, the attorney of record for the above-named defendants to and at his post office address situated in the Silver Bow Block on West Granite street, in the city of Butte, county of Silver Bow, state of Montana; that there is a daily communication by mail between the city of Deer Lodge, county and state aforesaid, and the city of Butte, county and state aforesaid. S. P. Wilson." The record also contains the following minute entry: "Friday, this 28th day of May, A. D. 1909. [Title of Court and Cause.] The motion of plaintiff, Amelia Curn, for a new trial, heretofore argued to the court and by the court taken under advisement, is this day by the court granted. The defendant not being present in court or by attorney, an exception is hereby allowed to this order granting plaintiff a new trial herein. [Signed.] Geo. B. Winston, Judge." The defendant has appealed from the order granting a new trial.

It is contended by the appellant that the affidavit of Mr. Wilson fails to show facts sufficient to warrant the district court in finding that the notice of intention to move for a new trial was served in accordance with the directions laid down in sections 7147, 7148, Rev. Codes, which read as follows:

"Sec. 7147. Service by mail may be made, where the person making the service, and the person on whom it is to be made, reside or have their offices in different places, between which there is a regular communication by mail.

"Sec. 7148. In case of service by mail, the notice or other paper must be deposited in the post office, addressed to the person on whom it is to be served, at his office or place of residence, and postage paid. The service is complete at the time of the deposit, but if within a given number of days after such service, a right may be exercised, or an act is to be done by the adverse party, the time within which such right may be exercised or act be done, is extended one day for every twenty-five miles distance between the place of deposit and the place of address. The service in any case is deemed complete at the end of forty days from the date of its deposit in the post office."

The specific objection to the affidavit is that it nowhere appears therefrom that the person making the service, and the person upon whom it was to be made, resided at or had their offices in different places. We do not find it necessary to decide whether the affidavit of service is fatally defective the members of this court are divided in opinion on the...