Whitbeck v. Mont. Cent. Ry. Co.

• Decision Date: 25 April 1898
• Parties: WHITBECK v. MONTANA CENT. RY. CO. et al.
• Court: Montana Supreme Court

21 Mont. 102

WHITBECK
v.
MONTANA CENT. RY. CO. et al.

Supreme Court of Montana.

April 25, 1898.

Appeal from district court, Cascade county; J. B. Leslie, Judge.

Action by Maggie Whitbeck against the Montana Central Railway Company and the Great Northern Railway Company. There was an order reversing a judgment for defendants, and defendants apply for a writ of certiorari. Granted.

A. J. Shores, for appellants.

J. A. Largent, for respondent.

HUNT, J.

The petition discloses that Mrs. Whitbeck brought an action against the petitioners (defendants in the action mentioned to recover damages for cruel and inhuman treatment alleged to have been inflicted by defendants. Defendants answered, denying the averments of the complaint, and setting up a justification. Upon the issues thus framed by the pleadings the action was pending, when, on September 25, 1897, defendants therein (petitioners here) moved for judgment on the pleadings, on the ground that the complaint failed to state facts sufficient to constitute a cause of action against either of the defendants. This motion was granted, and plaintiff's motion to amend her complaint was denied. Thereafter, on September 27th (that is, two days after judgment on the pleadings had been rendered), the court, of its own motion, without any application therein on the part of either party, and without defendants' consent that there should be any further action had in the matter, made and entered the following order: “The defendants' motion for judgment upon the pleadings herein, sustained on Saturday, September 25, 1897, is this day hereby reversed, and it is hereby ordered that said motion be denied.” Petitioners allege that the judgment rendered on September 25th, was not made or rendered or entered through any mistake or inadvertence on the part of the district court, and that the order of September 27th, reversing and setting aside the former order, was beyond the power and authority of the court. The office of the petition is to have this court review the record of proceedings of the lower court, and to determine whether the order of September 27th, reversing the first order of the district court, was within the jurisdiction of the court that made it.

Section 17, art. 8, of the constitution, provides that the district court in each county which is a judicial district by itself shall be always open for the transaction of business, except on legal holidays and nonjudicial days. In State v. McHatton, 10 Mont. 370, 25 Pac. 1046...