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

• Decision Date: 04 April 1910
• Parties: STATE ex rel. ROSENSTEIN v. DISTRICT COURT OF SECOND JUDICIAL DIST. OF SILVER BOW COUNTY et al.
• Court: Montana Supreme Court

108 P. 580

41 Mont. 100

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

Supreme Court of Montana

April 4, 1910

Application for prohibition by the State, on the relation of H. D Rosenstein, against the District Court in and for Silver Bow County and Jeremiah J. Lynch, judge thereof. Motion to quash the alternative writ denied, and a peremptory writ ordered to issue.

Mackel & Meyer, for relator. Veazey & Veazey and E. L. Bishop, for respondents.

BRANTLY C.J.

Original application for writ of prohibition. On September 13, 1909 the relator brought his action in a justice's court in Silver Bow county to recover of the Great Northern Railway Company damages in the sum of $299. The railway company appeared to defend the action, and thereupon, after a trial on October 5th, judgment was rendered and entered in favor of the relator for the amount demanded and for costs, taxed at $9. The railway company, desiring to appeal to the district court, caused to be filed with the justice, and served upon the relator, the following notice: "In the Justice's Court of Silver Bow Township, before Henry Foley, Justice of the Peace. H. D. Rosenstein, Plaintiff, v. Great Northern Railway Company, a Corporation, Defendant. Notice of Appeal. The State of Montana, County of Silver Bow--ss.: You will please take notice that the defendant in the above-entitled action hereby appeals to the district court of the Second judicial district in and for the county of Silver Bow from the judgment therein made and entered in the said justice's court on the -- day of September, 1909, in favor of said plaintiff and against said defendant and from the whole thereof. Dated October 5th, 1909." On October 8th the justice transmitted to the clerk of the district court a copy of his docket, together with the papers filed in the action, and they were filed with the clerk in his office on that day. Thereupon the relator, appearing specially and for that purpose only, moved the court to dismiss the appeal, on the ground of insufficiency of the notice to give the court jurisdiction. The motion having been denied, this proceeding was instituted to restrain the court from proceeding to trial and judgment. The respondents have moved to quash the alternative writ and dismiss the proceeding on the ground that the facts stated in the affidavit do not warrant the relief sought. The application is submitted for determination upon the one question, to wit: Is the notice of appeal, which incorrectly states the date of the judgment and wholly fails to designate the amount of it or describe it otherwise than by naming the court and the parties, sufficient to confer jurisdiction upon the appellate court?

Appeals from justices' courts to the district courts are allowed in all cases in such manner and under such regulations as may be prescribed by law. Const. art. 8, § 23. Section 7121, Rev Codes, provides: "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." The provision touching appeals from the district courts to the Supreme Court is substantially the same. Rev. Codes,§ 7100. It will be noted that these provisions are silent as to the contents or form of the notice required; so that, while appeals are subject to statutory regulation, with which there must be at least a substantial compliance in order to confer jurisdiction upon the appellate court (Territory v. Hanna, 5 Mont. 246, 5 P. 250; State v. Northrup, 13 Mont. 522, 35 P. 228; State v. Malish, 15 Mont. 506, 39 P. 739; Hines v. Carl, 22 Mont. 501, 57 P. 88; Creek v. Bozeman Water Works, 22 Mont. 327, 56 P. 362), we must consider what the office of the notice is, and by resort to general rules of law ascertain what the contents of it must be. The first purpose of it is to clothe the appellate court with jurisdiction of the cause for trial or for review, as the case may be; for the appeal is taken by filing and serving the notice, though it is ineffectual for any purpose unless the required undertaking be filed. Rev. Codes, § 7124. The second purpose of it is to convey information to the adverse party that the appellant has removed the cause to the appellate court, so that he may have his day in that court to maintain his rights. It seems obvious therefore, that, to afford him the opportunity to appear, he must be informed of the particular judgment or order from which the appeal is taken, so that he may understand what he is required...