State v. Case
| Decision Date | 02 July 1894 |
| Citation | 37 P. 95,14 Mont. 520 |
| Parties | STATE ex rel. JOHNSON et al. v. CASE, Juctice of the Peace. |
| Court | Montana Supreme Court |
Appeal from district court, Missoula county; C. S. Marshall, Judge.
Application by the state of Montana, on the relation of A. P. Johnson and another, for a writ of certiorari to review the action of J F. Case, justice of the peace, in an action before him, by Edmund Giggy, against relators. From a judgment dismissing the writ, and affirming the judgment of the justice, relators appeal. Reversed.
This case comes here on an appeal from a judgment of the district court which dismissed an application for a writ of certiorari against a justice of the peace, and affirmed a judgment of that justice. The application for a writ of certiorari in the district court shows that on February 6, 1892, Edmund Giggy commenced an action in the justice's court of J. F. Case against A. P. Johnson and John H. Bell, the relators in this application, and appellants herein, and that on February 16th the action was tried. The cause of action was upon a promissory note. Judgment was demanded for the amount of the note, interest, costs, and an attorney fee of $25. The defendants in that case (relators herein) now contend that they pleaded in that case what they claim was a tender of the amount of the promissory note, with interest, made before the commencement of the action. They offered to submit to a judgment for the amount of the note and interest, without costs. A jury was demanded in the justice's court, and the cause was tried before such jury upon that issue. The jury found a verdict for the plaintiff for the amount of the note and interest, without costs, and a verdict for the defendants for the costs of the action. The jury were then discharged. On the same day (February 16th) the justice entered judgment in accordance with that verdict. Afterwards on the 23d of February, the plaintiff made a motion in the justice's court, which he called a "motion to correct the judgment." The motion was, in substance, as follows: Plaintiff moves the court to correct the verdict of the jury, and the judgment rendered by the court upon said verdict, and to tax the costs of said action to the defendants herein, for the reason, etc. This motion was by the justice granted, and in pursuance thereof, on the 24th of February, the justice entered a judgment against the defendants for the amount of the note and interest and costs and also, after hearing proof, as the justice's docket of February 24th recites, for $50 attorney's fee in favor of plaintiff. So it appears that the defendants, on the 16th of February, obtained, in pursuance to the verdict of a jury, a judgment in accordance with what they here contend that they claimed; that is, that they should pay the note, with the interest, and that they should not pay the costs of the action. It then further appears that the justice, in effect on a later day (February 24th), set aside the judgment which he had rendered on the 16th of February in accordance with this verd ict, and gave a so-called judgment for the plaintiff for the whole amount, with costs and an attorney fee of $50. The defendants thereupon applied to the district court for a writ of certiorari to review the action of the justice of the 24th of February; their claim being that he exceeded his jurisdiction in giving the judgment of that date, and that there was no appeal therefrom, nor any plain, speedy, and adequate remedy. Code Civ. Proc. § 555. Upon the hearing of the certiorari matter in the district court, that court dismissed the writ, and affirmed the judgment of the justice of the peace of February 24th. From that judgment of the district court this appeal is taken. The questions now before this court are, did the justice of the peace, in rendering the judgment of February 24th, exceed his jurisdiction? And, if so, was there no appeal from that judgment? And was there no plain, speedy, and adequate remedy, other than by certiorari?
Henry C. Stiff, for appellants.
Murray & Musgrave and Geo. W. Reeves, for respondent.
DE WITT, J. (after stating the facts).
This case is in fact an action ex relatione, in which the relators are A. P. Johnson and another, and the respondent is J. F Case, a justice of the peace, although the papers in the court below were entitled Johnson et al. v. Case. Territory v. Potts, 3 Mont. 364.
Section 794 of the Code of Civil Procedure provides, in reference to justice courts: "Upon a verdict by a jury the justice shall immediately render judgment accordingly." In the case at bar the justice followed this statute; and in accordance with the verdict of the jury, and on the same day, to wit, February 16th, he entered judgment for the claim and interest against defendants, and judgment for costs against the plaintiff. On motion of plaintiff, on February 24th, the justice undertook to partially set aside the judgment above described, and thereupon enter another judgment. This attempted judgment of February 24th varied from the judgment of February 16th, in that it added to the judgment against defendants an attorney's fee for the plaintiff, and also taxed the costs against the defendants, which was contrary to the verdict of the jury, and contrary to the judgment of February 16th. This was not done upon a new trial. A new trial was not applied for, nor granted, nor had. The action of the justice was simply a setting aside of the verdict of the jury as to costs, and the judgment in accordance therewith, and the entering of another and different judgment as to the costs, with the attorney's fee added to the judgment for plaintiff, without any further or other trial. For convenience in referring to the action of the justice, we will call the judgment of February 16th the first judgment, and the action of the court of February 24th the second judgment. As we understand this case, all that was sought to be attacked and overthrown by the writ of certiorari in the district court was the second judgment. No attack was, or ever has been, made upon the first judgment, except the action of the justice of February 24th. The issue and contention upon the trial on February 16th were solely as to the costs, as defendants admitted their liability upon the demand and interest. It is quite likely that that issue was not properly made, and that the pleadings were such, and defendants' alleged tender was such, that the judgment of February 16th, in favor of defendants for costs, was erroneous. But, upon the application for the writ of certiorari, no one complained of the first judgment. The question was wheher the justice had jurisdiction to render the second judgment, and to that inquiry, we think, we should address ourselves.
The statute provides that "upon a verdict by a jury, the justice shall immediately render judgment accordingly." Code Civ. Proc. § 794. "When the prevailing party is entitled to costs *** the justice shall add their amount to the verdict." Id. § 799. As the case was tried to the justice the "prevailing party" was, in effect, the defendants, i. e. the defendants prevailed in the contention. The only contention was as to the costs. In this, defendants prevailed, i. e. the verdict was in their favor. The justice rendered judgment in accordance with the verdict, and in favor of defendants for costs. The word "immediately," as used in the statute above, has often been construed by courts. It has sometimes been construed as liberally as to mean 24 hours. But we have not observed that it has ever been construed as 8 days. Now, if the justice is to immediately render judgment upon the verdict of the jury (section 794), and if he is to add the costs to the verdict (section 799), it would seem to be in contemplation that the question of who was to pay costs was something determinable upon the return of the verdict, and the immediate rendering of judgment; that is, we say that the question of, against whom the judgment for costs is to be, seems to be determinable with the general verdict. We do not think that we can be understood as holding that a justice has no jurisdiction or power after judgment to add an omitted item of costs, or cutout an item wrongly and inadvertently taxed. Such questions we do not understand are now before us, and upon them we express no opinion. What we are considering is the matter of a verdict and judgment upon the question of who shall pay the costs, --not what the costs should be, in items. And, the matter of who shall pay the costs being adjudged by a justice in accordance with the verdict of a jury (section 794), has the justice jurisdiction, eight days afterwards, to set aside that judgment, and readjudge the costs against another party? We understand that to be the question before us.
On February 16th there was a judgment in favor of defendants for their costs. Plaintiff did not attempt an appeal from this judgment. It was rendered by the justice upon the verdict of a jury. Code Civ. Proc. § 794. We are of opinion that we should not hold, under the circumstances of this case, that the costs were simply an incident of the judgment in the justice court, and, therefore, that the justice could add them eight days after the trial. Such view was not presented by counsel for the justice, who appeared and argued the case in this court. Whatever may be suggested about costs being incidental to the judgment occurs to us as scarcely applicable to this case, where the costs, instead of being an incident, were in fact the only contention which was tried; improperly tried, perhaps; the issue badly pleaded, probably. But still it was the only contention tried, and therefore seems not quite properly called, in this case, "incidental." The verdict and judgment for costs in favor of defend...
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