State ex rel. Vocovitch v. Votaw

Per Cu riam.

Certiorari. On February 24, 1894, before A. C. Votaw, a justice of the peace, in an action of claim and delivery, wherein one O. Hermann was plaintiff, and relator and one Suttey were defendants, judgment was rendered in favor of the defendants and against plaintiff. February 26th notice of motion for a new trial was served. On March 8th plaintiff filed statement of grounds and affidavit for setting aside the judgment. Thereafter, defendants moved to strike out plaintiff’s statement on motion for new trial, on the ground that said statement was not filed within the statutory time. On March 16th, thereafter, the justice issued an order vacating and setting aside said judgment, and granting a new trial in said action, against defendants’ objection.

The district court held that the justice exceeded his jurisdiction in setting aside the judgment theretofore rendered. Section 820 of the Code of Civil Procedure provides that in cer *309 tain cases a new trial may be granted by a justice of the peace, on motion, within 10 days after the entry of judgment, etc.

It is our opinion that, unless the motion is made within the 10 days after the entry of judgment, the justice has no jurisdiction to act upon it. A notice of motion is not a motion. ( Wallace v. Lewis, 9 Mont. 399 .) More than 10 days having elapsed between the entry of the judgment and the filing of the motion, the district court correctly vacated the order of the justice of the peace setting aside the verdict and judgment in the original case tried before the justice. (State ex rel. Johnson v. Case, 14 Mont. 520 .) Judgment affirmed.

Affirmed.

All concur.