Missoula Electric Light Co. v. Morgan

• Decision Date: 02 October 1893
• Citation: 34 P. 488,13 Mont. 394
• Parties: MISSOULA ELECTRIC LIGHT CO. v. MORGAN.
• Court: Montana Supreme Court

34 P. 488

13 Mont. 394

MISSOULA ELECTRIC LIGHT CO. v. MORGAN.

Supreme Court of Montana

October 2, 1893

Appeal from district court, Missoula county; Frank H. Woody, Judge.

Forcible entry and detainer by the Missoula Electric Light Company against James D. Morgan. Judgment for plaintiff. Defendant appeals. Affirmed.

H. D Moore, for appellant.

McConnell Clayberg & Gunn and

T. C Marshall, for appellee.

HARWOOD J.

This action was first prosecuted in the justice's court by plaintiff to obtain restitution of the possession of a certain piece of land in Missoula county, under the provisions of the statute forbidding forcible entry or unlawful detainer of lands in possession of another, (Code Civil Proc.

§§ 716-733,) and the trial in the justice's court resulted in findings and judgment in favor of plaintiff. The cause was then appealed to the district court of said county by defendant. In the district court another trial was had, before the court and a jury, which again resulted in findings and judgment in favor of plaintiff, from which latter judgment an appeal is prosecuted to this court by defendant.

The errors assigned and urged in this court by appellant relate (1) to the rulings of the district court in refusing to grant defendant's motion "for a perpetual stay of proceedings in said action, on the ground that the judgment appealed from was rendered more than four days after the cause was submitted to the justice;" and (2) the order of the district court overruling appellant's motion to dismiss said action on the same grounds; (3) that the court erred in refusing to give the jury certain instructions tendered by defendant; (4) that the evidence is insufficient to justify the verdict; and (5) that the judgment entered in said case is not authorized by the verdict, in that the verdict is for restitution of the premises, as well as the rental thereof, while the verdict of the jury was only for the rental value of the premises. The principal point relied on by appellant appears to be the assignment that the district court erred in overruling appellant's motion for "perpetual stay of proceedings," and his motion that the district court dismiss the action, on the ground that it appears from the justice's docket that the judgment by the justice of the peace was rendered on the fifth day after the submission of the cause, instead of within four days after such submission, as provided by statute. Section 794, Code Civil Proc. These motions were each predicated on the same grounds, and each practically sought the determination of the case by the district court because of an error or irregularity committed by the justice of the peace in the adjudication before him. We have no doubt that appellant, in the district court, had a right to dismiss his appeal from the justice's court at any time before commencement of trial in the district court. The motions here under consideration, however, were not for dismissal of the cause by the district court, and thereby an annulment of the judgment of the justice's court, because of certain irregular action of the justice during his adjudication of the case. Under our system, an appeal from the justice's court, after an adjudication and decision of the cause by the justice, raises the case into the district court, with all the original papers, for trial de novo on the merits. Code Civil Proc. §§ 730, 731, 822-826; State v. Evans, 13 Mont. --, 33 P. 1010. There is no provision for the district court, upon such an appeal, to review certain rulings or action of the justice of the peace in the course of his adjudication and decision of the case, and on the correctness or incorrectness thereof determine the case in the district court. It is true that, if the justice...