State v. District Court of Third Judicial District of Montana

• Decision Date: 27 October 1902
• Citation: 70 P. 516,27 Mont. 179
• Parties: STATE ex rel. PRESCOTT v. DISTRICT COURT OF THIRD JUDICIAL DISTRICT OF MONTANA et al.
• Court: Montana Supreme Court

70 P. 516

27 Mont. 179

STATE ex rel. PRESCOTT v. DISTRICT COURT OF THIRD JUDICIAL DISTRICT OF MONTANA et al.

Supreme Court of Montana

October 27, 1902

Application for a writ of certiorari, on the relation of A. K. Prescott to review an order of the district court of the Third judicial district refusing to dismiss an appeal from a justice's court. Application denied.

Jno. W James, for plaintiff.

PIGOTT J.

This is an application for a writ of certiorari to review an order of the district court of Deer Lodge county refusing to dismiss an appeal taken to the court from a judgment in a justice's court. From the affidavit filed in support of the application it appears, prima facie, that the plaintiff recovered judgment against one Thomas in the court of the justice of the peace. Thomas duly appealed therefrom to the district court, and gave the undertaking required by law. The plaintiff, availing himself of the privilege granted by section 1763 of the Code of Civil Procedure, duly excepted to the sufficiency of the sureties on the undertaking given to effectuate the appeal. It is alleged, and for the purpose of the present proceeding we assume, without deciding, that the sureties, or others in their place, did not justify upon notice, as is required by the following provision of section 1763, supra: "The adverse party may except to the sufficiency of the sureties within five days after the filing of the undertaking, and unless they or other sureties justify before the justice or judge within five days thereafter, upon notice to the adverse party, to the amounts stated in their affidavits, the appeal must be regarded as if no such undertaking had been given." It further appears that the plaintiff moved the district court to dismiss the appeal on the ground that notice of the justification by the sureties was not given or served as provided by the statute quoted. The motion to dismiss was denied, and the refusal of the court to grant the motion is asserted to have been in excess of the court's jurisdiction. The purpose of this application is to annual the order refusing to dismiss the appeal.

Upon the presentation of the petition, counsel for the plaintiff stated that the facts recited in the affidavit demand the application of the rule declared in State v. Napton, 24 Mont. 450, 62 P. 686, but the present case is wholly unlike the case which counsel cites in support of his position. In the Napton Case the district court had proceeded by making an order in an action of which it did not have jurisdiction. There Allen recovered before a justice of the peace a judgment against Gibbs, and Gibbs appealed to the district court. Thereupon Allen excepted to the...