State v. District Court of Fifth Judicial Dist. In and For Madison County

• Decision Date: 11 April 1906
• Citation: 85 P. 872,34 Mont. 112
• Parties: STATE ex rel. HALL et al. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY et al.
• Court: Montana Supreme Court

85 P. 872

34 Mont. 112

STATE ex rel. HALL et al. v. DISTRICT COURT OF FIFTH JUDICIAL DIST. IN AND FOR MADISON COUNTY et al.

Supreme Court of Montana

April 11, 1906

Application by Amos C. Hall and others for writ of probation to the district court of the Fifth judicial district, in and for the county of Madison, and Hon. Lew L. Callaway, judge thereof. Writ issued.

J. B Clayberg and S. V. Stewart, for respondents.

HOLLOWAY J.

In August, 1905, an action was commenced in the justice of the peace court of Union township, Madison county, by Amos C Hall et al. against J. H. Owen et al. By agreement the venue was changed to Hot Springs township, where the cause was tried, a verdict returned in favor of the plaintiffs, and judgment entered on the verdict on November 28, 1905. On December 1st a notice of appeal was served on counsel for plaintiffs, and on December 4th this notice was filed in the justice of the peace court. The transcript of the justice's docket and the papers in the case were lodged with the clerk of the district court, and on January 2, 1906 plaintiffs moved to dismiss the appeal on several grounds among which were, that the pretended appeal had not been perfected as required by law, and that a notice of appeal had not been filed and served upon the plaintiffs or their counsel as required by law. This motion was overruled, and the district court being about to proceed to try the cause, an application was made to this court for a writ of prohibition to restrain the district court and the judge thereof from further proceeding. An alternative writ was issued and on return an answer was filed. Upon the hearing it was conceded that the petition and answer correctly state the facts.

1. The only question for determination is: Did the district court acquire jurisdiction of the case of Hall et al. v. Owen et al.? Section 1760 of the Code of Civil Procedure provides for appeals from the justice of the peace court to the district court, and, respecting the manner of effecting such appeals, prescribes: "The appeal is taken by filing a notice of appeal with the justice or judge, and serving a copy on the adverse party or his attorney." These appeals are purely matters of statutory regulation (State v. Whaley, 16 Mont. 574, 41 P. 852, and cases cited), and it becomes important, then, to know whether the order in which the notice of appeal is filed and served is of consequence. The statute provides that such notice must be filed and served. In this instance the notice was served on one day and not filed until three days later.

2. The question is not a new one. It has been before this court and before the Supreme Courts of California, Nevada, Colorado, Idaho, and Washington. An early California statute provided: "Art. 1071, § 337. The appeal shall be made by filing with the clerk of the court, with whom the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving a copy of the notice upon the adverse party or his attorney." Wood's California Digest, 1850-58, p. 210. Construing this statute in Hastings v. Halleck et al., 10 Cal. 31, the Supreme Court of that state held that the filing of the notice of appeal must precede or be contemporaneous with the service, and if the service preceded the filing, the notice was of no effect and did not perfect the appeal. This was followed in Buffendeau v. Edmondson, 24 Cal. 94; Warner v. Holman, 24 Cal. 228; Moulton v. Ellmaker, 30 Cal. 528; Boston v. Haynes, 31 Cal. 107; Foy v. Domec, 33 Cal. 317; and in Lynch v. Dunn, 34 Cal. 518.

3. The statute of Nevada in force in 1873 was identical with the California statute above. Comp. Laws Nev. 1873, c. 1, tit. 9, § 331. In Lyon County v. Washoe County, 8 Nev. 177, in construing this statute, the Supreme Court of Nevada said: "It is well settled that to render an appeal effectual the filing of the notice of appeal must precede or be contemporaneous with the service of the copy; otherwise that which purports to be a copy fails as such for want of an original to support it. It is ordered that the appeal be dismissed." This decision has since been affirmed in Johnson v. Mining Company, 12 Nev. 261, and in Reese Gold & Sil. M. Co. v. Rye Patch Con. M. & M. Co., 15 Nev. 341, and in Brooks v. Nevada Nickel Syndicate, 24 Nev. 264, 52 P. 575, decided in 1898.

4. The Colorado statute in force in 1879 is as follows: "Sec. 339. The appeal shall be made by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and executing an undertaking as hereinafter prescribed, and serving a copy of the notice upon the adverse party or his attorney." Code Civ. Proc. Colo. tit. 9, c. 35, p. 125. With these provisions in force, the Supreme Court of Colorado, in Alvord v. McGauhy, 4 Colo. 97, held that unless the filing of the notice of appeal precedes or is contemporaneous with the service thereof, it is ineffectual for any purpose and the appeal is not perfected. This was followed and approved in Daniels v. Daniels, 9 Colo. 133, 10 P. 657, construing a statute then in force in all material respects the same as the one considered in Alvord v. McGauhy above.

5. The Idaho statute in force in 1875 was also identical with the California statute above. Laws Idaho, tit. 9, c. 1, p. 141. This statute was considered in Slocum v. Slocum, 1 Idaho, 589, and the Supreme Court of Idaho said: "By this statute it becomes necessary as a part of the notice that it should be filed, and consequently it must precede or be contemporaneous with the service of a copy on the adverse party. This has been decided in California under a statute similar to ours, and in adopting its statute we adopt the construction which has been given to it by the courts of that state. Before the court can take jurisdiction of an appeal the filing of the notice and the service of a copy thereof as prescribed by the statute must be had, and before the notice is filed, it possesses none of the elements of a notice, and consequently there can be no copy of it."

6. The Code of Washington providing for appeals from a justice of the peace court to the superior court, in force in 1897, among other things provided: "Sec. 1631. Such appeal shall be taken by filing a notice of appeal with the justice and serving a copy on the adverse party or his attorney. ***" Hill's Ann. St. & Codes of Washington, p. 612. This section was considered in State ex rel. Alladio v. Superior Court, 17 Wash. 54, 48 P. 733, where it is held that the filing of the notice must precede the service, otherwise the superior court does not acquire jurisdiction. A similar provision respecting the finding and service of a statement was considered in Erickson v. Erickson, 11 Wash. 76, 39 P. 241, and the same conclusion reached.

7. In 1876 we had in this state the following provision respecting appeals to this court from the district courts: "Sec. 370. The appeal shall be made by filing with the clerk of the court in which the judgment or order appealed from is entered, a notice stating the appeal from the same, or some specific part thereof, and serving copy of the notice upon the adverse party or his attorney." Codified Statutes of Montana (7th session, 1871-72) tit. 9, c. 1, p. 107. This statute is identical with the California, Nevada, and Idaho statutes above, and in all material respects the same as the Washington and Colorado statutes quoted. In Courtright v. Berkins, 2 Mont. 404, this court said: "The statutes of California and Nevada regulating appeals are the same as those of this territory. The courts of these states hold that the filing of the notice of appeal must precede or be contemporaneous with the service of the copy thereof to render an appeal effectual. The failure of the appellants to comply with the Civil Practice Act in this proceeding is an error which affects the jurisdiction of this court. *** Appeal dismissed."

8. But it may be said that the statutes considered in the cases cited above, except the Washington Case, relate to appeals from courts of record, while the statute now under consideration relates to appeals from a justice of the peace court, and that a different construction should be given to it. The district court evidently proceeded upon this theory following the decisions of the Supreme Courts of California and Idaho. After the California cases above were decided, the Supreme Court of California in Coker v. Supreme Court, 58 Cal. 177, in considering sections 974 and 978 of the California Code of Civil Procedure, which correspond with sections 1760 and 1763 of our Code of Civil Procedure, without giving any reason for its conclusion and without referring to its former decisions above, announced the doctrine that in order to effectuate an appeal from a justice of the peace court, three things are necessary, namely: "The filing of a notice of appeal with the justice, the service of a copy of the notice upon the adverse party, and the filing of a written undertaking. *** The mere order in which they are done within that time is not material." This decision was followed in Hall...