Farleigh v. Kelly

• Decision Date: 17 October 1900
• Citation: 62 P. 495,24 Mont. 369
• Parties: FARLEIGH et al. v. KELLY. [1]
• Court: Montana Supreme Court

62 P. 495

24 Mont. 369

FARLEIGH et al. v. KELLY. ^[1]

Supreme Court of Montana

October 17, 1900

Appeal from district court, Jefferson county; Henry C. Smith, Judge.

Petition by Caroline Kelly for probate of the will of John D. Allport deceased, to which Lillie Sue Farleigh and others filed objections. Contestants moved to dismiss proponent's appeal from a judgment against her and an order denying a new trial. Denied.

T. J Walsh and Geo. F. Cowan, for appellant.

Walsh & Newman, Robt. B. Smith, and Chas. R. Leonard, for respondents.

WORD J.

Respondents move the court to strike from the record on appeal the statement of the case on motion for new trial, and to dismiss the appeal in said action, for the following reasons: (1) Because the said statement was not served on respondents' attorneys, or settled, allowed, or filed, within the time prescribed by the Code of Civil Procedure, the time for serving, settling, or filing such statement not having been extended by stipulation of parties, or by an order of the court in which the case was tried, or by the judge thereof (2) because no brief has been served on respondents' attorneys or filed within 60 days of the filing of the transcript on appeal.

The facts, as disclosed by the record, are as follows: The proponent filed for probate in court an instrument purporting to be the last will and testament of John D. Allport deceased. The contestants duly filed objections to admitting said will to probate, alleging, among other things, that it was a forgery. To these objections a replication was filed, and thereafter an amended answer was filed. Hon. M. H. Parker, judge of the court, was disqualified, and Hon. Henry C. Smith, judge of the First judicial district, was requested to hold court for Judge Parker during the trial of the case. The case was tried before a jury. The jury returned their verdict November 19, 1899, whereby it was found that the will was forged. Thereafter the proponent served notice of intention to move for a new trial, stating that it would be based upon a statement of the case and upon affidavits. The district court of Jefferson county adjourned on the 19th day of November, 1899, and no other term of court was held between that time and December 4, 1899. On December 4, 1899, Judge Smith, at Helena, Mont., made an order extending the time within which proponent might serve her statement. The contestants, at all stages of the proceedings relating to the settlement of the said statement, objected to the settlement or allowance thereof, upon the ground that the same was not served in time, and that Judge Smith did not have authority to extend the time within which it might be served. These objections were embodied in the statement, and the statement was settled by Judge Smith, over the objections. Judgment was entered in the case, February 5, 1900. The motion for a new trial was overruled May 12, 1900. On May 24, 1900, notice of appeal was served, whereby an appeal was taken from the order overruling the motion for a new trial, but not from the judgment.

The question presented is, did the Honorable Henry C. Smith, the judge who tried said cause, have the power to make the order of December 4, 1899, extending the time within which proponent might prepare and serve her statement? Counsel for respondents take this position: Admitting that, under the constitution and Code of this state, a judge of one district, called into hold court for a judge of another district, for some reason disqualified, has the same power, either in court or chambers, as the judge thereof, and that while in the Fifth judicial district his honor, Judge Smith, had the power to make the order of December 4th, yet respondents contend that when his honor, Judge Smith, returned to his own district he did not and could not take with him, and there exercise, any of the powers of the judge for whom he was holding court. In the discussion of the questions involved in this motion, both the counsel for respondents and for appellant seem to have overlooked section 1821 of the Code of Civil Procedure, which is as follows:

"Sec. 1821. Motions must be made in the county in which the action is brought, or in any adjoining county in the same district. In case of the absence of the judge of the district from his district, such motion may be made before the judge of any adjoining district. Orders made out of court may be made by the judge of the court in any part of the state."

Under section 12 of article 8 of the constitution, Judge Smith had the power to hold court in the Fifth judicial district, and to try said cause. While holding said court, Judge Smith had the same power, either in court or chambers, as the judge thereof. Code Civ. Proc. § 36. Under section 1173 of the...