State v. District Court of Second Judicial Dist., Silver Bow County

• Court: Montana Supreme Court
• Writing for the Court: BRANTLY, C.J.
• Citation: State v. District Court of Second Judicial Dist., Silver Bow County, 74 P. 414, 29 Mont. 176 (Mont. 1903)
• Decision Date: 30 November 1903
• Parties: STATE ex rel. CITY OF WALKERVILLE v. DISTRICT COURT OF SECOND JUDICIAL DIST., SILVER BOW COUNTY, et al.

74 P. 414

29 Mont. 176

STATE ex rel. CITY OF WALKERVILLE v. DISTRICT COURT OF SECOND JUDICIAL DIST., SILVER BOW COUNTY, et al.

Supreme Court of Montana

November 30, 1903

Application on the relation of the city of Walkerville for writ of mandate to the district court of the Second Judicial District, Silver Bow county, and E. W. Harney, a judge thereof. Denied.

Chas O'Donnell and Nolan & Loeb, for relator.

J. J McHatton, for respondents.

BRANTLY C.J.

Application for writ of mandamus to compel E. W. Harney, one of the judges of the Second Judicial District court, to settle a statement and bill of exceptions on motion for new trial in a cause wherein Sarah A. Pryor was plaintiff and the relator herein was the defendant. A trial of the cause was had on November 11, 1902, resulting in a verdict in favor of the plaintiff for the sum of $1,500. Judgment was entered in accordance with the verdict for the amount thereof and for costs. On November 18th the defendant served upon the plaintiff and filed with the clerk of the court its notice of intention to move for a new trial. Thereupon an order was made granting the defendant additional time to that provided by law in which to prepare and serve its statement and bill of exceptions in support of its motion. Within the time so allowed, and on January 28, 1903, the defendant duly served upon the attorneys for the plaintiff its statement and bill. On January 30th the attorneys for the plaintiff served upon the attorney for defendant proposed amendments. These amendments were not adopted. The relator alleges in the affidavit filed in support of the application that on February 9, 1903, E. W Harney, the judge before whom the cause was tried, not then being in the county of Silver Bow, its counsel left with the clerk for the judge the proposed statement and bill, together with the proposed amendments, to be presented to the judge upon his return, for settlement in accordance with the provisions of subdivisions 2 and 3 of section 1173 of the Code of Civil Procedure. In his answer to the alternative writ the judge of the district court puts in issue the truth of this statement, and this presents the only controversy involved upon the hearing of this application.

If the statement and bill with the proposed amendments were left with the clerk for the judge within the time allowed in the statute, it became the duty of the judge to settle the bill and statement,...