Wallace v. Lewis

• Citation: 24 P. 22,9 Mont. 399
• Parties: WALLACE et al. v. LEWIS et al.
• Decision Date: 09 April 1890
• Court: Montana Supreme Court

24 P. 22

9 Mont. 399

WALLACE et al. v. LEWIS et al.

Supreme Court of Montana

April 9, 1890

Appeal from district court, Gallatin county;

The complaint is on a money demand, and was filed in the first district court in and for Lewis and Clarke county, November 27, 1889. Summons was issued, and served on defendant Lewis December 2d, and on defendant Vaughn, December 12th, each in Gallatin county, in the sixth district. Writ of attachment was issued November 27th, and levied on personal property November 29th. Lewis' time to appear expired January 11 1890, and Vaughn's on January 21st. Before those dates each appeared by demurrer. A written application to dissolve the attachment was filed by defendants on January 9th. On the same day defendants filled written demand that the venue be changed to Gallatin county, in the sixth district. The application to discharge the attachment was heard by Hon WILLIAM H. HUNT, judge of the first district, in his court January 15th. It was heard upon all the papers and proceedings in the case, and upon affidavits filed. The application was denied by Judge HUNT, January 15th, in the following order: "That said motion be overruled, without prejudice to defendants' renewing said motion if a change of venue shall be granted herein." On January 17th, the same judge made an order, on defendants motion, changing the venue to Gallatin county. On March 5, 1890, before Hon. FRANK HENRY, judge of the sixth district, defendants moved to discharge the attachment. They used the same papers on the motion that had been filed and used in the first district. Since the hearing in the last-mentioned district, no papers of any description connected with the motion had been filed. On the hearing before Judge HENRY, March 5th, an order was made discharging the attachment. From this order plaintiffs appeal.

Luce & Luce, for respondents.

DE WITT, J., (after stating the facts as above.)

Section 200, Code Civil Proc., is as follows: "The defendant may also, at any time before the time for answering expires apply on motion, upon reasonable notice to the plaintiff, to the court in which the action is brought, or the judge thereof, that the attachment be discharged on the ground that the writ was improperly issued." This statute is interpreted that the time in which the application must be made "refers to the time in which the defendant shall appear and answer the summons." Vaughn v. Dawes, 7 Mont. 362, 17 P. 114. That is, if the summons be served on defendant in a district, other than the one in which the action is brought, he must appear within 40 days. Defendant Lewis might then make the application before or on January 11th. Defendant Vaughn had until January 21st. The application was heard by Judge HUNT, January 15th. This was within the statutory time as to defendant Vaughn, whatever may have been the situation of Lewis. When Judge HUNT denied the application, "without prejudice" as to a renewal before Judge HENRY, he did not purport to extend the time in which defendants might make the application, which time was fixed by the statute, and the construction thereof in Vaughn v. Dawes, supra. The ruling simply relieved the defendants from the possibility of a charge of contempt of court in making a second application to another judge. Conceding that the effect of the words "without prejudice" was to leave the defendants as they were before the hearing before Judge HUNT, it was to preserve their privileges existing when they went into the first district court; not to enlarge them, or create new ones. See Ford v. Doyle, 44 Cal. 635; Bowers v. Cherokee Bob, 46 Cal. 285; Kenney v. Kelleher, 63 Cal. 443; sections 551, 552, Code Civil Proc. In this view the defendants were therefore, on January 17th, in the same position as if they had never moved for a dissolution of the attachment. We find that they take no steps whatever until the application to Judge HENRY, March 5th.

Our statute, section 482, Code Civil Proc., defines a motion as follows: "Every direction of a court or judge made or entered in writing, and not included in a judgment, is denominated an order. An application for an order is a motion." The statute of California is identical. Prac Act Cal. § 515, and Code Civil Proc....