Clark v. Great Northern Railway Co.

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

*462 This action was commenced in a justice of the peace court for Silver Bow county by the respondent, wlm was plaintiff below, to recover for work and labor alleged to have been performed for the defendant railway company. On December 2, 1902, the defendant appeared in the justice court and filed its answer, putting in issue the allegations of the complaint. On December 5th the justice of the peace fixed December 12, 1902, at 2 o’clock p. m., as the. time for the trial of the cause, and gave due notice as required by Section 1511 of the Code of Civil Procedure. On December 12th, at the time fixed for the trial, the plaintiff appeared, but the defendant was absent; and at qdaintiff’s request the justice of the peace continued the cause, but fixed no day to which the adjournment was taken. On December 18th the justice fixed December 22d at 2 o’clock p. m. for the trial of the cause, and gave due notice thereof. On December 22d the plaintiff appeared for trial, but the defendant did not appear. The justice’s transcript then contains this recital: “Plff. present with his atty. and deft, not present by attorney or otherwise and not for one hour after the time Deer. 22, 1902, p. m. set for trial. The default of the deft, is on motion of atty. for plff. noted and entered.” The court, having heard the evidence on behalf of the plaintiff, entered judgment for $42 and costs. On December 26th the defendant gave notice of appeal to the district court, as follows:

“Notice oe Appeal.

“You will please take notice that the defendant in the above-entitled action hereby appeals to the district court of the Second judicial district, in and for the county of Silver Bow, from the judgment therein made and entered in the said justice court on the 22d day of December, 1902, in favor of said plaintiff and against said defendant, and from the whole thereof. This appeal is taken on questions of law.

“Yours, etc.

“E. L. Bishop, Attorney for Defendant and Appellant.”

*463 In the district court the railway company moved to dismiss the case on the ground that the justice court had lost jurisdiction by its indefinuite postponement on December 12th. This motion was overruled, and the defendant declined to appear further in the action. A trial by jury having been previously waived, the court then heard testimony on behalf of the plaintiff, and rendered judgment in his behalf, from which judgment this appeal is prosecuted.

The appellant urges here that the justice of the peace court lost jurisdiction of the cause when it adjoiirned on December 12, 1902, for an indefinite period — that is, adjourned without specifying or fixing any definite time to which the adjournment was taken, as required by Section 1660 of the Code of Civil Procedure — and that it. could not thereafter render or enter any valid judgment against this appellant, and, as the justice court did not have jurisdiction to render a valid judgment, the district court on appeal did not acquire jurisdiction for any purpose except to dismiss the cause altogether.

Assuming for the purposes of this appeal that appellant’s contention is correct — that the justice court lost jurisdiction of the cause by its adjournment for an indefinite time — our inquiry here is as to the action of the district court in its treatment of the cause after it had been removed into that court by the appeal from the judgment rendered in the justice of the peace court.

We preface our consideration of the cause by saying, that the justice of the peace could not enter the default of the railway company on December 22d, notwithstanding the justice’s docket entry seems to indicate that such was attempted.1 The defendant had on file an answer which put in issue the allegations of the complaint, and, notwithstanding the entry made by the justice of the peace at the time of the trial, the record does show that the justice tried the issues and entered judgment on the proof adduced by the plaintiff, so that the judgment was in no sense a judgment by default, and could not have been. (Covart v. *464 Haskins, 39 Kan. 574 , 18 Pac. 522 ; 9 Ency. Law, 2d Ed., 168, and cases cited; 6 Ency. Pleading & Practice, 60.)

The notice of appeal filed in the justice of the peace- court seeks to limit the inquiry in the district court to- questions 'of law only, and in the district court, the appellant sought to raise a question of law by its motion to dismiss the case on the ground that the justice of the peace had no jurisdiction to enter the judgment appealed from. This motion was overruled, and this action of the court is the error assigned here.

Section 23, Article VIII, of the Constitution, provides for appeals “from justice’s courts, in all cases, to the district courts, in such manner and under such regulations as may be prescribed by law.” Section 1760 of the Code of Civil Procedure provides the manner of taking an appeal, and Section 1761 of the same (’ode provides for the manner and extent of the review which may be had in the district, court on such appeal. The district court, sitting as an appellate court, is one of limited jurisdiction, and may only proceed in the manner and to the extent provided by law. (Section 11, Article VIII, Constitution of Montana.) "When a cause is transferred on appeal from a justice of the peace court to the district court, it must be tried anew in the district, court. (Section 1761, above.) That language is susceptible of only one construction, namely, that, only such questions as were raised and presented'in the justice of the peace court can be tried in the district court. A question cannot be tried anew which has never been tried or presented for trial, but any question of law or fact which was properly raised and presented in the justice of the peace court can be tried anew in the district court, if properly presented there. Section 1761, above, received .careful consideration in State ex rel. Shanahan v. Lindsay, 22 Mont. 398 , 56 Pac. 827 , and the construction there given it is conclusive of this appeal. Speaking of that section, the court-, among other things, said: “An examination of its provisions shows that the intention of the legislature was that the procedure governing appeals should secure to the appellant a review in the district court, of all the questions in the *465 case which he has properly raised or reserved in the inferior court. All cases appealed must be tried anew, just as they were tried, or should have been tried, in the lower court. If an answer be filed, and a trial of fact had, then, on appeal, there must be a trial on the facts, upon the pleadings filed in the lower court, unless the parties are, upon cause shown, and upon just terms, permitted to file others, or the court orders others to be filed. If a demurrer be filed, in the lower court, or a question of law be raised in any other proper way, this may be taken advantage of in the district court.”

.What issues were raised in the justice of the peáee court which could be tried anew in the district court in this, instance ? The record shows that the only issues were issues of fact raised by the answer. There is no showing that any motion was ever made in the justice of the peace court to set aside the judgment and dismiss the cause. On the contrary, it appears that this motion was first interposed in the district court, and, as that court had before it the record on appeal, showing that the only questions presented in the justice of the peace court were questions of fact, the district court properly overruled the motion to dismiss the cause, and tried the issues of fact which had been raised in the court below.

What is said herein must be limited to the facts presented in this case. The extent of the review which may be had on appeal from a judgment by default or in any appeal where additional pleadings are filed is not considered.

The judgment is affirmed.

Affirmed.

Mr. Justice Milburn, not having heard the argument, takes no part in the foregoing decision.