Roush v. District Court of Eighth Judicial Dist. for Cascade County

• Court: Montana Supreme Court
• Writing for the Court: ANDERSON, Justice.
• Citation: Roush v. District Court of Eighth Judicial Dist. for Cascade County, 101 Mont. 166, 53 P.2d 96 (Mont. 1935)
• Decision Date: 30 December 1935
• Docket Number: 7517.
• Parties: ROUSH v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. FOR CASCADE COUNTY et al.

53 P.2d 96

101 Mont. 166

ROUSH v. DISTRICT COURT OF EIGHTH JUDICIAL DIST. FOR CASCADE COUNTY et al.

No. 7517.

Supreme Court of Montana

December 30, 1935

Original proceeding by Theresa Roush against the District Court of the Eighth Judicial District and for Cascade County, and H. H Ewing, Judge Presiding, for a writ of mandate to compel the district court to set a certain cause for trial.

Writ denied and proceeding dismissed.

O'Leary & Stromnes, of Great Falls, for petitioner.

Speer & Hoffman, of Great Falls, for respondents.

ANDERSON Justice.

This is an original proceeding brought by petitioner to secure a writ of mandate to compel the district court to set the cause of Roush v. Chester for trial in department No. 2 of the district court of Cascade county. The respondent court filed answer, admitting many allegations of the petition and denying others. At the time the alternative writ was issued it was understood by this court that none of the facts were in dispute. In accordance with the established practice of this court in like circumstances, we will consider the cause on the facts which are admitted and disregard the allegations of the petition which are denied in the answer. Rider v Cooney, 94 Mont. 295, 23 P.2d 261.

The petitioner here, who was the plaintiff in the court below filed her complaint in the district court of Cascade county where she and the defendant therein, Roy Chester, resided, setting forth a cause of action in tort for personal injuries arising out of a highway accident which occurred on December 4, 1934, and alleged to have been proximately caused by the negligence of Chester. On September 18, 1935, by leave of court the plaintiff filed her first amended complaint which was served on counsel for defendant. Thereafter, on October 24, 1935, defendant filed his answer to the amended complaint, denying many of the allegations and affirmatively pleading three defenses. By order of the district court a calling of the calendar for cases at issue was set for Friday, November 1, 1935, and on that date this cause was set for trial to commence on December 2, 1935. It appears that counsel for the respective parties were in court on the day of the calling of the calendar and the setting of the cause for trial. According to the petition of plaintiff filed here, counsel for the defendant was there present and consented or acquiesced to the setting of the cause for trial. The answer of the court admits the presence of counsel for the defendant, but denies either agreement or acquiescence in the setting of the cause for trial. Thereafter, on November 8, 1935, respective counsel stipulated in writing that the plaintiff might have twenty days from that date within which to serve and file a reply to the affirmative defenses set forth in the answer. On November 12, 1935, without leave of court, counsel for the defendant served and filed an amended answer. On November 16 thereafter plaintiff filed her reply to the amended answer. On November 12, 1935, counsel for defendant served and filed a written motion seeking the vacation of the setting of the case of Roush v. Chester on the ground that it was not at issue, and for the further reason that at the calling of the calendar the action was inadvertently set for trial without the request or consent of the defendant. This motion, without hearing of any evidence in support of it, was by the court granted.

The petitioner here contends that under the statutes and rules of the court obtaining in Cascade county, when the answer was filed issue was joined or the case was at issue, so that it was incumbent upon the court to set it for trial. The respondents contend that under these statutes and rules of court, the cause was not at issue and, therefore, the motion seeking to vacate the setting was properly granted.

Rules of the district court, when not in conflict with any statute have the effect of law. State ex rel. Hansen v. District Court, 72 Mont. 245, 233 P. 126; State ex...