State v. Justice Court of Township No. 1, Gallatin County

• Decision Date: 04 November 1904
• Citation: 78 P. 498,31 Mont. 258
• Parties: STATE ex rel. GRISSOM et al. v. JUSTICE COURT OF TOWNSHIP NO. 1, GALLATIN COUNTY, et al.
• Court: Montana Supreme Court

78 P. 498

31 Mont. 258

STATE ex rel. GRISSOM et al. v. JUSTICE COURT OF TOWNSHIP NO. 1, GALLATIN COUNTY, et al.

Supreme Court of Montana

November 4, 1904

Appeal from District Court, Gallatin County; W. R. C. Stewart Judge.

Writ of review in the name of the state, on the relation of F. E Grissom and another, against W. Y. Smith, justice of the peace, to review proceedings in defendant's court wherein A. L. Love was plaintiff and F. E. Grissom and another were defendants. From the judgment rendered, defendant Smith appeals. Reversed.

E. B Hoffman, for appellant.

Jno. A Luce, for respondents.

HOLLOWAY J.

On December 1, 1902, an action was commenced in the justice of the peace court of Township No. 1, Gallatin county, Mont., before W. Y. Smith, justice of the peace, wherein A. L. Love was plaintiff and F. E. Grissom and another were defendants. The complaint contained four causes of action; the first for $530.01, the second for $8.35, the third for $1.82, and the fourth for $7.50. Upon the filing of this complaint a summons was duly issued and served, but upon motion of the defendants the service was quashed. A new summons was thereupon issued and served. On December 24th the defendants appeared and filed a demurrer, which was overruled, and on January 14, 1903, each of them filed a separate answer putting in issue the allegations of plaintiff's complaint. On February 13th plaintiff filed a reply, and by stipulation of counsel the cause was set for trial for March 23d. At the time set for trial the defendants failed to appear, and after waiting one hour the court entered their default, and plaintiff made proof. At the close of his evidence plaintiff asked leave of court to amend his complaint by substituting $260 for $530.01 in his first cause of action. The amendment was permitted, and the court thereupon entered a judgment in favour of the plaintiff according to the prayer of his complaint as amended. On March 31, 1903, the defendants sued out of the district court a writ of review directed to the justice of the peace court of Township No. 1, county of Gallatin, state of Montana, W. Y. Smith, justice of the peace, respondent. A transcript of the record of the justice of the peace court in the case of Love v. Grissom et. al. was duly certified and a transmitted, together with the original files in the case, to the district court. Upon the hearing the district court entered a judgment annulling the judgment entered in the justice of the peace court and rendering judgment for relators for their costs. In this judgment it is recited that the district court heard the matter upon the pleadings and return and upon the affidavits of W. Y. Smith, E. M. Reynolds, and Eugene B. Hoffman, filed on behalf of respondent in the certiorari proceedings. From this judgment W. Y. Smith, the respondent in such proceedings, has appealed.

Certain questions of practice are presented for determination.

1. It is said that the district court had before it certain affidavits not contained in the writ of certiorari or in the return thereto, which were considered by the court in determining that proceeding upon its merits, but which affidavits are not in the record before this court. Section 1944 of the Code of Civil Procedure provides that the writ of review must command the party to whom it is directed to certify to the court issuing the writ a transcript of the record and proceedings, that the same may be reviewed, etc. Section 1947 provides that the review upon this writ cannot extend further than to determine whether the inferior tribunal has regularly pursued the authority of such tribunal. Section 1948 provides that, when a full return has been made, the court must hear the parties, and may thereupon give judgment, either affirming or annulling or modifying the proceedings below. Section 1950 reads. "A copy of the judgment, signed by the clerk, entered upon or attached to the writ and return, constitute the judgment, signed roll." An appeal to this court from the judgment entered in the district court brings before us for review any questions appearing on the judgment roll, as described in section 1950, above, and in the consideration of such questions no other papers than those mentioned in section 1950 are or could be properly before this court.

2. It is contended by respondents here that the appeal in this instance was not taken by the justice of the peace court, but only by W. Y. Smith, the justice of the Peace, and upon the authority of State v. District Court, 26 Mont. 224, 67 P. 114, 68 P. 470, it is urged that the appeal is ineffectual for any purpose. Section 1, art. 8, of the Constitution, provides: "The judicial power of the state shall be vested in the Senate, sitting as a court of impeachment, in a Supreme Court, district courts, justices of the peace, and such other inferior courts as the legislative assembly may establish in any incorporated city or town." The theory upon which the case of State v. District Court, above, was decided, was that under the Constitution and laws of this state there is a well-defined distinction between a particular district court and the judge of that court, and the reason for this is apparent. The Constitution and laws have vested in the district court certain jurisdiction, and also have vested in the judge of the district court at chambers power to determine various judicial matters (section 11, art. 8, Const., and section 171, Code Civ. Proc.); but nowhere is there lodged in the justice of the peace any authority to do or perform any judicial act aside from the authority vested in such justice of the peace as a court. In other words, the authority of the justice of the peace and of the justice of the peace court, so far as judicial matters are concerned, are identical. As the writ of review can only affect such inferior tribunals, boards, and officers as exercise judicial functions, and as the justice of the peace, in contradistinction with the justice of the peace court, does not exercise judicial functions, but only does so as a court, it is apparent that, so far as these certiorari proceedings are concerned, there is no distinction whatever between the justice of the peace court of Township No. 1, Gallatin county, Mont., presided over by W. Y. Smith, justice of the peace, of Township No. 1, Gallatin County, Mont., as such; in other words, for the purpose of these proceedings they are one and the same thing. We are therefore of the opinion that the notice of appeal is sufficient to give this court jurisdiction.

3. It is contended that the specifications of error in appellant's...