Stevenson v. Cadwell
| Decision Date | 02 April 1894 |
| Parties | STEVENSON v. CADWELL. |
| Court | Montana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from district court, Gallatin county; C. H. Benton, Judge.
Action by Thomas H. Stevenson against E. P. Cadwell. Judgment for plaintiff. Reversed.
This action was originally commenced in a court of the justice of the peace. Judgment was rendered in favor of plaintiff, March 13, 1893. Defendant in due time gave notice of appeal, and filed a bond upon appeal. On March 21st the justice made out his transcript of the proceedings in the case, and left the same with the clerk of the district court. On April 24th plaintiff served defendant with notice of a motion to dismiss his appeal, on the ground that the same was not filed in the district court within the time allowed for filing it, as provided by statute and the rules of practice of the court, nor was the same docketed within the time so allowed. The motion was noticed to be made upon records of the case and an affidavit to be filed. On May 1st defendant paid to the clerk his filing fee, and the case was then filed and docketed. The defendant filed his affidavit in resistance to the motion to dismiss. The motion was heard May 8th, and granted. Defendant's appeal was dismissed, and judgment for costs was rendered in favor of plaintiff. Defendant now appeals.
E. P. Cadwell, in pro. per.
Staats & Holloway, for respondent.
DE WITT, J. (after stating the facts).
There was a rule of the district court that appeals from justices' courts to the district court must be filed within 30 days after the appeal is perfected, and that if, through the neglect of the appellant, the same be not so filed, the appeal may be dismissed. The appeal was not filed in the district court within 30 days after it was perfected, and in consequence thereof the district court dismissed the appeal. The only inquiry which we will make is whether the district court exercised a sound discretion in applying this rule and dismissing the appeal. We are inclined to think it did not. Defendant's appeal was perfected as required by statute. The dismissal was not for a failure to comply with the law, but, on the contrary, for simply neglecting to observe a rule of the court. The object of the rule is certainly not to deny parties a hearing who wish one. The object is to require appeal cases to be brought on promptly for trial. It seems to us that the object of the rule was attained in this case. The appeal did not lie unheard for any unconscionable length of time. Respondent gave notice of his motion to dismiss at once upon the expiration of the 30 days. After respondent had served appellant with notice of his...
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