State ex rel. Bartol v. Justice of Peace Court of Township of Stanford, in Judith Basin County

• Decision Date: 03 March 1936
• Docket Number: 7495.
• Citation: 55 P.2d 691,102 Mont. 1
• Parties: STATE ex rel. BARTOL v. JUSTICE OF PEACE COURT OF STANFORD TP., IN JUDITH BASIN COUNTY et al.
• Court: Montana Supreme Court

55 P.2d 691

102 Mont. 1

STATE ex rel. BARTOL v. JUSTICE OF PEACE COURT OF STANFORD TP., IN JUDITH BASIN COUNTY et al.

No. 7495.

Supreme Court of Montana

March 3, 1936

Appeal from District Court, Judith Basin County; Stewart McConachie Judge.

Proceeding on writ of review by the State, on the relation of Josef Bartol, to have reviewed an order entered by W. S. Reeder, as Justice of the Peace of Stanford Township in Judith Basin County. From a judgment annulling the order of the justice of the peace, he appeals.

Reversed and remanded, with direction.

H. O Vralstad, of Stanford, for appellant.

John B Muzzy, of Stanford, for respondent.

ANDERSON Justice.

This is an appeal from a judgment of the district court of Judith Basin county rendered in a proceeding brought to review the action of a justice of the peace in ordering the release of property, claimed as exempt, from attachment. The judgment annulled the order of the justice of the peace.

The plaintiff brought his action in the justice's court and secured the issuance of a writ of attachment against the property of Joe Tarr. The attachment proceedings are regular in all respects. The sheriff of Judith Basin county levied upon and seized under the writ of attachment, on the 2d day of April, 1935, in Judith Basin county certain personal property of the defendant in that proceeding, namely, 3 coal cars, 38 mining timbers, 35 tie timbers, 4 tons of rails of various lengths and sizes, and one wagon scale. Thereafter on April 11, the defendant in the attachment suit filed a motion to release the property attached, on the ground that it was exempt under the provisions of subdivision 5 of section 9428, Rev.Codes of 1921. This motion was supported by an affidavit of the defendant, wherein it was stated that he resided in Judith Basin county, Montana; was a married man and the head of a family, "a miner by occupation and trade and that for more than 2 years last past" he was engaged in mining coal on certain described real estate in Judith Basin county, Montana; that he was the owner of the property heretofore described, which did not exceed in value the sum of $1,000. Thereafter the plaintiff in the attachment suit filed a counter affidavit, setting forth that he was the owner of the lands and premises described in the defendant's affidavit whereon the defendant had mined and removed from the premises coal by men employed by the defendant as miners to mine and remove the coal. It is alleged that the defendant did not by himself and alone mine or remove the coal, but was the employer of men as miners who mined and removed the same. It is further alleged in the affidavit that on or about the 1st day of April, 1935, the defendant abandoned these premises and removed the attached property to his place of residence; that at the time of the attachment it was not being used in, or connected with, or placed for use or in connection with, any mining operations by the defendant; that at the time of the attachment the defendant was not operating or conducting any mine whatever; that all the property attached was suitable for use for other purposes than mining and could be so used; that at the time of the attachment defendant had no mine or claim in or about which the property attached could be used; and that the defendant had at that time discontinued all mining operations on the premises. It is denied that the property was exempt.

Thereafter, on April 17, 1935, the justice of the peace heard the motion for the release of the property and ordered it released from the attachment and returned to the defendant. Thereafter a writ of review was issued by the district court directed to the justice of the peace, and, after a return had been made to the writ, a hearing was had resulting in a judgment annulling the order of the justice of the peace releasing the property from attachment. The respondent justice of the peace in the district court has appealed from this judgment.

It is contended on appellant's behalf that the order was within jurisdiction and therefore valid. The respondent here contends that the justice of the peace is without authority on motion, in a summary manner, to make an order releasing property from attachment claimed to be exempt, and that the showing made in the affidavit and counter affidavit was insufficient to authorize the justice of the peace to make an order releasing the property from the attachment.

In the case of White v. Corbett, Justice of the Peace, 101 Mont. 1, 52 P.2d 156, 157, in a proceeding brought to review a similar order made by a justice of the peace, we said:

"The writ of review (certiorari) can only be resorted to when there is no appeal, nor any plain, speedy, or adequate remedy in the ordinary course of law (State ex rel. Reynolds v. Laurendeau, 27 Mont. 522, 71 P. 754), and when the lower court has acted in excess of jurisdiction. State ex rel. Johnston v. District Court, 93 Mont. 439, 19 P.2d 220.

Appeals from justice of the peace courts are matters of statutory regulation (State ex rel. Hall v. District Court, 34 Mont. 112, 85 P. 872, 115 Am.St.Rep. 522, 9 Ann.Cas. 728), and one who claims the right must point out the statutory authority therefor. Gahagan v. Gugler 52 P.2d 150.

In this state an appeal lies to the district court only from a judgment of the justice of the peace court (section 9754, Rev.Codes 1921), or from an order of the justice setting aside, or refusing to set aside, a default judgment. Section 9755, Id. There is no appeal from an order made after judgment. State ex rel. Cobban v. District Court, 30 Mont. 93, 75 P. 862; Burch v. Roberson, 47 Mont. 456, 132 P. 1132; Thien v. Wiltse, 49 Mont. 189, 141 P. 146. Nor does it appear that there exists any 'plain, speedy, and adequate remedy' in the ordinary course of law. See State ex rel. Grissom v. Justice Court, 31 Mont. 258, 78 P. 498, 500.

A judgment debtor may have a levy of execution set aside ( Holmes v. Marshall, 145 Cal. 777, 79 P. 534, 69 L.R.A. 67, 104 Am.St.Rep. 86, 2 Ann.Cas. 88) on a showing that the property is exempt from execution (Murphy v. Harris, 77 Cal. 194, 19 P. 377), but the mere statement that the property is exempt is but a conclusion of law and unavailing. Paulson v. Nunan, 64 Cal. 290, 30 P. 845."

It is noteworthy that our Codes contain no specific provision with reference to the manner and mode of claiming exempt property. Frequently persons desiring to claim property as exempt from attachment or...