Davis v. Bell Boy Gold Mining Co.

• Decision Date: 15 February 1936
• Docket Number: 7481.
• Citation: 54 P.2d 563,101 Mont. 534
• Parties: DAVIS v. BELL BOY GOLD MINING CO.
• Court: Montana Supreme Court

54 P.2d 563

101 Mont. 534

DAVIS v. BELL BOY GOLD MINING CO.

No. 7481.

Supreme Court of Montana

February 15, 1936

Appeal from District Court, Lewis and Clark County; A. J. Horsky Judge.

Action by Sam Davis against the Bell Boy Gold Mining Company in the justice of the peace court. From a judgment of the justice of the peace refusing to set aside a judgment, the defendant appealed to the district court, and, from a judgment of the district court dismissing the appeal, defendant appeals.

Reversed and remanded, with direction.

Toomey & McFarland and John W. Chapman, all of Helena, for appellant.

T. H MacDonald, of Helena, for respondent.

MATTHEWS Justice.

On January 31, 1935, the plaintiff, Sam Davis, secured a default judgment against the defendant, Bell Boy Mining Company, in a justice of the peace court. On February 9 the defendant filed and, two days later, presented a motion to set aside the judgment, which motion was supported by affidavits. Owing to illness the justice did not rule on the motion until April 3 when he refused to set the judgment aside. On April 6 the defendant served and filed notice of appeal from the judgment. The appeal was perfected, and the record transmitted to the district court, but thereafter, on motion of plaintiff, the appeal was dismissed. The defendant has now appealed from the judgment of dismissal, which appeal presents the sole question as to whether or not the appeal to the district court was timely.

Our Constitution (section 23, art. 8) declares that "appeal shall be allowed from justices' courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law." Pursuant to this authority, the Legislature has prescribed that such an appeal may be taken "at any time within thirty days after the rendition of the judgment." Section 9754, Rev. Codes 1921. Such a provision is a statute of limitations, and, unless the appeal is taken within the time prescribed, the appellate court acquires no jurisdiction and the appeal must be dismissed. Welcome v. Howell, 20 Mont. 42, 49 P. 393; Hopkins v. Kitts, 37 Mont. 26, 94 P. 201; Wilson v. Norris, 43 Mont. 454, 117 P. 100. The Legislature has also declared that "there is no appeal from a judgment by default, *** except on questions of law which appear on the face of the papers or proceedings, and except in cases when the justice's *** court has abused its discretion in setting aside or refusing to set aside a default or judgment." Section 9755, Id.

Under fact conditions similar to those in the case at bar, this court has said: "There being no appeal allowed from the order refusing to set aside the default and judgment *** and the appeal from the judgment having been perfected after the lapse of 30 days from the rendition thereof, the district court was without jurisdiction to entertain it." State ex rel. Cobban v. District Court, 30 Mont. 93, 75 P. 862, 863. This declaration, based upon the strict letter of the statutes alone, is apparently correct, as "an appeal lies only when authorized by statute." City of Miles City v. Drum, 60 Mont. 451, 199 P. 719, 720. But are the declarations in the Cobban Case and the Drum Case strictly accurate in the face of the constitutional guaranty of the right of appeal from justices' courts "in all cases?"

On constitutional grounds it is held that, where a statute is so framed as to deny the right of appeal in certain instances, the statute is invalid as to an aggrieved litigant who is thereby denied an appeal. O'Bannon v. Ragan, 30 Ark. 181; Rankin v. Schofield, 70 Ark. 83, 66 S.W. 197. Here, however, the statute does not deny to this defendant the right to appeal, but, as interpreted in the Cobban Case, it reaches the same result by not providing against an exigency which might arise, and did arise in the instant case, barring appeal.

Counsel for the plaintiff asserts that the judgment should be affirmed for the reason that, as the trial on an appeal from a justice of the peace court is de novo, the defendant could have appealed from the judgment without waiting for a ruling on its motion, but with this assertion we cannot agree.

The statute expressly declares that there is no appeal from a default judgment except in the special instances enumerated, and, under the provisions of that portion of section 9755 quoted above, the district court is merely called upon to determine whether or not the justice of the peace court "abused its discretion" in ruling on a motion to set aside the judgment; it could neither affirm nor reverse the judgment, but, to the extent that the court is required to reconsider the action of the justice to determine whether the lower court abused the discretion vested in it, the action on appeal is a review rather than the familiar trial de novo on appeal from such a court.

While the statutes are not the same, on principle, the following cases are in point: Maxson v. Superior Court, 124 Cal. 468, 57 P. 379; Sherer v. Superior Court, 94 Cal. 354, 29 P. 716.

The district court can acquire no jurisdiction by appeal until the lower court has acted, and cannot try the case de novo unless it determines that the lower court abused its discretion in refusing to set aside the judgment on the showing made in support of the motion.

Had the defendant attempted to appeal from the default judgment without waiting for a ruling on his motion, the only possible effect such an appeal could have had would have been an affirmance of the default judgment. Gage v. Maryatt, 9 Mont. 265, 23 P. 337. Such an appeal would have been an abandonment of the motion, as the statute does not authorize the district court to try the motion anew, but merely to determine whether or not the lower court abused its discretion.

No appeal would lie until after the justice ruled on the motion, and the defendant appealed as soon as an appeal was possible; therefore, if the ruling in the Cobban Case is correct, it had no appeal. However, the motion to set aside a default judgment, authorized by section 9187, Revised Codes 1921, and recognized as applying to such a judgment as this by section 9755, above, is akin to, or in effect, a motion for a new trial.

While our attention has been called to, and we have found, no case ruling on a situation such as that here presented, the following rules with reference to the motion for a new trial are well established: The limitation of time within which an appeal may be taken is fixed by law so as to bring litigation to an end and define the limit of the trial court's jurisdiction (State Bank of New Salem v. Schultze, 63 Mont. 410, 209 P. 599), and, although a judgment is defined as the final determination of the rights...