Valadon v. Lohman

• Citation: 127 P. 88,46 Mont. 144
• Parties: VALADON v. LOHMAN.
• Decision Date: 28 September 1912
• Court: Montana Supreme Court

127 P. 88

46 Mont. 144

VALADON v. LOHMAN.

Supreme Court of Montana

September 28, 1912

Appeal from District Court, Chouteau County; Frank N. Utter, Judge.

Action by Joseph F. Valadon against A. S. Lohman. From a judgment of the district court dismissing an appeal from a judgment in justice court, plaintiff appeals. Reversed and remanded.

H. S Kline, of Havre, and James A. Walsh, of Helena, for appellant.

BRANTLY C.J.

This action was commenced in the justice's court of Havre township, Chouteau county, on June 12, 1909, to recover damages for a trespass by defendant upon land belonging to plaintiff. In the justice's court the plaintiff had judgment. The defendant having given notice of appeal to the district court and filed his undertaking with the justice the record was filed in that court on July 28, 1909. The notice was properly entitled in the court and cause, and reads as follows: "You will please take notice that the defendant in the above-entitled action hereby appeals to the district court of the Twelfth judicial district in and for the county of Chouteau from the judgment therein made and entered in the said justice's court on the 8th day of July, 1909, in favor of said plaintiff and against said defendant, and from the whole thereof. This appeal is taken on questions of both law and fact." On June 1, 1910, the attorneys for the respective parties filed a stipulation for a continuance of the cause for the current term because defendant was ill. On August 4, 1910, another stipulation was filed, by the terms of which the parties agreed to take the deposition of a witness to be used at the trial. On July 15 1911, other counsel than the one who had theretofore represented the defendant filed with the clerk a notice that defendant desired to withdraw his appeal, and directed him to dismiss it. It does not appear that this notice was ever called to the attention of the court, or that the clerk attempted to act upon it. On July 17th, neither defendant nor his counsel being present, the cause was tried without a jury, and submitted to the court for judgment. On July 21st the court rendered its decision dismissing the appeal, and ordering judgment in favor of defendant for his costs and disbursements on the appeal. The judgment was entered on October 5th. The ground upon which the court proceeded was that the notice of appeal from the justice's court was fatally defective, in that it "does not state the amount or characterize the judgment entered in the justice's court," and hence that the district court was without jurisdiction to proceed with the cause. Plaintiff has appealed from the judgment. Counsel for defendant have not filed a brief nor made any appearance in this court.

The first question submitted for decision is: Did the notice sufficiently describe the judgment appealed from to remove the cause to the district court? Upon the removal of a cause to the district court, it stands for trial de novo. Rev. Codes, § 7122. The notice is the means provided by the statute to bring the adverse party into that court so that he may appear and protect his rights. Its function is the same as that of a summons (State ex rel. Rosenstein v. District Court, 41 Mont. 100, 108 P 580, 21 Ann. Cas. 1307; Davidson v. O'Donnell, 41 Mont. 308, 110 P. 645; Jenkins v. Carroll, 42 Mont. 302, 112 P. 1064), the purpose of which is to give the defendant in the action the opportunity to appear and be heard in his own defense (32 Cyc. 447). It was pointed out in State ex rel. Rosenstein v. District Court, supra, that, though the statute does not require what the notice must state, yet, the purpose of it being to...