State v. Evans
| Decision Date | 31 July 1893 |
| Citation | 33 P. 1010,13 Mont. 239 |
| Parties | STATE ex rel. GLEIM v. EVANS, Justice of the Peace. |
| Court | Montana Supreme Court |
Certiorari on the relation of Mary Gleim to review the action of J. M Evans, a justice of the peace, in declaring forfeited her bail in a criminal proceeding before him. Order of justice set aside.
The other facts fully appear in the following statement by HARWOOD. J.:
This is a writ of certiorari for review of certain proceedings heretofore had before J. M. Evans, justice of the peace of Missoula county, in two criminal cases, wherein Mary Gleim petitioner in this proceeding, was defendant, charged with the crime of assault and battery in each of said cases; and it is alleged that said justice exceeded his jurisdiction in certain orders and proceedings therein. It appears from the return of the justice that on the 19th day of January, 1892 complaint was duly made, and filed in his court, charging said Mary Gleim with the crime of assault and battery in two several instances; whereupon warrants were issued, and executed by the arrest of Mary Gleim, and she was released from custody on deposit of the sum of $50 with said justice of the peace as cash bail, in lieu of the bond required in each of said cases. Thereafter several continuances were had in each case, from time to time, on application of defendant's attorney, S. G. Murray, Esq., until the 25th day of January, 1892, when defendant appeared in person, and entered her plea of not guilty to each of said complaints. That both cases were then set for trial on the 26th of January, at 2 o'clock P. M. At the time last stated defendant's attorney appeared in her behalf, (she not being personally present,) and filed and presented to said justice an affidavit for change of venue in the case first called for trial, which affidavit was subscribed and sworn to by defendant, and reads as follows: "Mary Gleim, being duly sworn, deposes and says that she is the defendant in the above entitled action. That she has reason to believe, and does believe, that she cannot have a fair and impartial trial before the justice of this court, for the following reasons About two years ago this affiance and the above-named justice had a personal difficulty, in which there were such hard feelings engendered on the part of said justice against this defendant that he has ever since that occurrence held a personal enmity against her, and has upon numerous occasions shown by his conduct, both as a citizen and as an officer of this court, that he has a personal grudge against this affiant. That affiance is informed and believes, and therefore affirms, that the said justice has recently said to numerous persons that he was prejudiced against her. Affiant therefore prays that this cause may be transferred to some other court of concurrent jurisdiction, there to be heard and tried upon its merits. Affiance further affirms that this application for change of venue is not made for the purpose of delay, but that substantial justice may be done. "Upon this affidavit, defendant, by her attorney, then moved said justice's court to order said case transferred to another justice of the peace for trial, as provided by law in such cases; but the justice overruled said application for change of venue, and thereafter, on the same day, at 10 minutes past 3 o'clock P. M., the defendant not being personally present, but her counsel being present and representing her, the court on motion of the attorney for the state, made an order declaring defendant's bail deposited in each of said cases forfeited, and thereupon ordered the city marshal to produce defendant in person in court forthwith, which requirement was complied with, as recited in the record, "by defendant appearing in court in company with the city marshal, C. R. Prescott;" whereupon the trial of one of said cases first called ensued before said justice of the peace and a jury impaneled at the request of defendant, which trial resulted in a verdict by the jury finding defendant guilty, and assessing a fine of $25 and costs as her punishment, which she satisfied by payment. The other case was continued until the following day, January 27th, at 2 o'clock P. M., and, her cash bail of $50 theretofore deposited in that case having been declared forfeited, the justice ordered that defendant On January 27th counsel for defendant appeared and presented a motion for change of venue, supported by affidavit of defendant, containing affirmations substantially as set forth in the affidavit, above recited; but it appears the justice then and there "overruled said motion, upon the ground that the affidavit, and all thereof, was false and untrue," and, the defendant not having appeared in person at 15 minutes past 3 o'clock P. M. of said day when the case was called for trial, her default was entered, and the attorney prosecuting At 3:30 P. M. of said last-mentioned day the defendant appeared in court in custody of the city marshal, and the trial proceeded before the court sitting with a jury demanded by defendant, which trial resulted in a verdict returned by the jury finding "defendant guilty of assault, and fixing her fine in the sum of five dollars and costs." It appears that the fine and costs assessed against defendant in each of said cases were paid by her without further proceeding, and that thereafter, on the 10th day of February, 1892, counsel for defendant appeared and moved said justice to certify the cash bail deposited in lieu of a bail bond to the district court. The return of respondent recites that "said motion was denied, for the reason that said money had been paid to the county attorney of Missoula county." The return also...
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Lewis v. Gallup
...will set aside and annul the void proceeding of which the petitioner complains. Memphis Ry. Co. v. Brannum, 11 So. 386; State v. Evans, 13 Mont. 239, 33 P. 1010; v. Case, 37 P. 95. The statute allowing the justice to relieve a party from a judgment taken against him by default in cases of m......