Pincus v. Dowd

• Decision Date: 27 July 1891
• Parties: PINCUS v. DOWD.
• Court: Montana Supreme Court

27 P. 393

11 Mont. 88

PINCUS v. DOWD.

Supreme Court of Montana

July 27, 1891

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

Action of unlawful detainer by Adolph Pincus against John Dowd. Judgment for plaintiff. Defendant appeals. Affirmed.

W. I Lippincott, for appellant.

Francis T. McBride, for respondent.

DE WITT, J.

This is an action of unlawful detainer commenced in the justice's court, an action in which it is required that, even in the justice's court, the pleadings shall be in writing, and be verified. Section 769, Code Civil Proc. The action was commenced August 15, 1889, and summons was served on defendant, August 17th. On August 20th, by consent, defendant was given until August 28th to answer. August 28th, by consent, he was given until August 31st. August 31st, by consent, he was given until September 3d. Trial was set for September 5th at 10 A. M. September 5th, 10 A. M., continued until 2 P. M. September 5th continued until September 20th and defendant to have until September 17th to answer. September 17th, by consent, time to answer continued. October 19th, trial set for October 22d. Defendant had been given until October 15th to file answer. The justice further shows that at the time for answer on the part of John Dowd having expired, and no answer being filed, and said John Dowd having appeared in person, and stated to the court that he would not further contest said case in that court, the default of defendant was entered, and judgment rendered against him. Defendant then appealed to the district court. The case thus came into the district court without an answer being among the files, and, if the justice's record is correct without an answer having been filed. In the district court plaintiff moved for judgment on the pleadings, for the want of an answer, which motion was granted, and judgment entered in that court for plaintiff. Defendant moved the court to set aside the judgment, and give him leave to file an answer. But the theory upon which the motion was made and heard seems to be, judging from the affidavits and all the record, that an answer had been filed in the justice's court, and lost and no record made of it, and defendant desired to substitute an answer for that which he claimed had existed. The motion was denied. On the motion for judgment on the pleadings, and on the motion to set aside the judgment, there were a number of affidavits used. The tenor of the affidavits upon the part of the defendant was that an answer had been prepared, and filed in the justice's court, while plaintiff denied that allegation by affidavits on his part. It is impossible to reconcile the affidavits of the contending parties upon the theory that each stated the facts. The conflict is irreconcilable. The district court weighed them, and declined to open the default or allow defendant to file an answer. In reviewing this action of the district court, it is pertiment to observe that continuance after...