Whitbeck v. Montana Cent. Ry. Co.

• Decision Date: 25 April 1898
• Citation: 52 P. 1098,21 Mont. 102
• Parties: WHITBECK v. MONTANA CENT. RY. CO. et al.
• Court: Montana Supreme Court

52 P. 1098

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 P. 1046, it was said by Chief Justice Blake, for the court, that a district court without terms is a legal impossibility, and that the constitution and statutes recognized and sanctioned that proposition. We shall not controvert that holding, further than to state that the court evidently was not advised of the fact that section 5 of article 6 of the constitution of California ordained that the superior courts of that state should be always open, legal holidays and nonjudicial days excepted, as is required by section 17 of article 8 of our constitution, and that it had been decided in 1886, in Re Gannon, 69 Cal. 541, 11 P. 240, that the system of terms and final adjournments of courts, under which the judges thereof had formerly opened courts for the transaction of judicial business, was abolished by constitutional provisions like those of Montana, and that there is no such thing as a division of time into certain periods of the year, known as "terms of court," during which a court may sit to hear and determine causes. "The superior court of each county in the state is an organized judicial institution, competent for the transaction of business at all times, without reference to terms or adjournments. So that, notwithstanding an order for adjournment entered on the minutes of the court, the court may sit and exercise its jurisdiction in the trial of causes, or in the transaction of any legal business, at any time. Stewart v. Mining Co., 54 Cal. 149. And it follows that neither an end of the session of the court, nor a final adjournment of the court for the year, would have the legal effect of dissolving the grand jury." In re Gannon, supra. Several years after the decision in State v. McHatton, supra, the legislature of this state, following the doctrine of the California court, and interpreting our constitution as abolishing terms of court in certain districts, by adopting the Code of Civil Procedure enacted the following express statute: "The district court of each county which is a judicial district by itself has no terms, but must be always open for the transaction of business, except on legal holidays and nonjudicial days, and must hold its sessions at the county seat. Juries for the trial of causes must be called on the first Monday of every alternate month, if the judge so direct, and oftener if public business requires. In each district where two or more counties are united, the judge thereof must fix the terms of court in each county in his district, which must be held at the county seat, and there must be at least four terms a year in each county. The judge of such district court must, within ten days after the taking effect of this Code, and thereafter, within ten days after the first day of January in each year, make an order which must designate the times at which the terms of court are to be held in each county in his district during the year, and must cause said order, or a copy thereof, to be filed in the office of the clerk of the district court in each county in his district, and such clerk must cause the same to be published in some newspaper printed in his county, once a week for four successive weeks, immediately after the filing of such order, the cost of which shall be a county charge, and no change in the time of holding the terms so fixed...