State v. Benson

• Decision Date: 02 December 1931
• Docket Number: 6914.
• Citation: 5 P.2d 1045,91 Mont. 109
• Parties: STATE v. BENSON.
• Court: Montana Supreme Court

5 P.2d 1045

91 Mont. 109

STATE v. BENSON.

No. 6914.

Supreme Court of Montana

December 2, 1931

Appeal from District Court, Blaine County; C. B. Elwell, Judge.

Hezekiah Benson was convicted of maliciously injuring personal property, not his own, and he appeals.

Affirmed.

W. B Sands, of Chinook, and C. R. Stranahan, of Havre, for appellant.

L. A Foot, Atty. Gen., C. N. Davidson, Asst. Atty. Gen., and Harry L. Burns, of Chinook, for the State.

FORD J.

Defendant was charged with maliciously injuring personal property not his own, of the value of $20--a misdemeanor. Section 11474, Rev. Codes 1921. The complaint was originally filed before John Griffin, a justice of the peace at Chinook, Blaine county. Defendant appeared and entered a plea of not guilty and thereafter filed a disqualifying affidavit against Griffin, and the case was transferred to the justice's court at Turner. Defendant appeared in that court and objected to the jurisdiction of the court, and the justice ordered the case and all files returned to Justice of the Peace Griffin. The case was then transferred by Griffin to the justice's court of H. D. Hiebert. No docket entry was made of the order of transfer. Upon the trial counsel objected to the jurisdiction of the court "on the ground that no sufficient complaint had been filed and that the justice before whom the complaint had been filed and who transferred the case to this court had no jurisdiction at the time of making the order of transfer, and that the party before whom the complaint was filed was not a qualified justice of the peace then or since." The objection was overruled. Defendant was found guilty and judgment was entered, from which he appealed to the district court.

The objections raised in the justice's court were not urged in the district court and are not argued here. When the cause came on for trial in the district court, counsel objected to the jurisdiction of the court upon the ground, among others, that the docket of Justice of the Peace Griffin did not show that an order transferring the case to the justice's court of Hiebert was made and entered. The objection was overruled and after trial defendant was found guilty. Judgment was duly entered and this appeal followed.

It is contended that since the docket of the justice's court in which the complaint was filed does not show that an order of transfer was made and entered, the justice's court to which the case was transferred and in which it was tried was without jurisdiction; that the district court had no greater jurisdiction than the justice's court, and in consequence the judgment of the district court must be reversed.

On appeal from a justice's court the cause must be tried anew in the district court on the papers and files in the justice's court, unless the court allows other or amended pleadings, and each party has the benefit of all legal objections made in the justice's court. Section 9755, Rev. Codes 1921. The district court does not sit as a court of review, but tries the cause de novo. State ex rel. Gleim v. Evans, 13 Mont. 239, 33 P. 1010; State ex rel. Seres v. District Court, 19 Mont. 501, 48 P. 1104; State v. O'Brien, 35 Mont. 482, 90 P. 514, 10 Ann. Cas. 1006; In re Graye, 36 Mont. 394, 93 P. 266, 268.

Here, defendant appeared before Justice of the Peace Hiebert and objected to the jurisdiction of the court, not upon the ground that no order of transfer had been made and entered in the docket, but upon other grounds, and in our opinion the objection now relied upon was waived and could not be raised in the district court. When defendant appeared before Justice of the Peace Hiebert, without raising this objection, he submitted to the jurisdiction of the court and gave the court jurisdiction over his person, notwithstanding the irregularities in the transfer (In re Graye, supra), and the law gave it jurisdiction of the cause (section 11630, Rev. Codes 1921) and authorized it to hear and determine the guilt or innocence of defendant. Also, by appealing to the district court--an application for a trial de novo--the defendant cannot insist that irregularities to which he made no objection in the justice's court shall be taken note of, or the judgment, which is abrogated by appeal, be reversed on account of them.

"What was the effect of the appeal to the district court? The statute, as already pointed...