Stevenson v. Cadwell

De Witt, J. There was a rule of the district court that appeals from justice’s courts to the district court must be filed within thirty days after the appeal is perfected, and that if, through the neglect of the appellaxit, the same be not so filed, the appeal may be.dismissed. The appeal was not filed in the district court within thirty days after it was perfected, and in consequence thereof the district court dismissed the appeal. The only iuq.uixy which we will make is whether the district court exercised a sound discretion in applying this rule and dismissing the appeal. We are inclined to think it did not. Defendant’s appeal was perfected as required by statute. The dismissal was not for a failure to comply with the law, but, on the contrary, for simply neglecting to observe a rule of the court. The object of the rule is certainly not to deny parties [314] a hearing who wish one. The object is to require appeal cases to be brought ou promptly for trial. It seems to us that the object of the rule was attained in this case. The appeal did not lie unheard for any unconscionable length of time. Respondent gave notice of his motion to dismiss at once upon the expiration of the thirty days. After respondent had served appellant with notice of his motion, and a week before the motion was heard, appellant gave to the clerk of the district court his filing fees, and the appeal was filed and docketed. It also appears that this was a case wherein appellant was entitled to a jury trial, and that no jury was in attendance upon the court from the date of appeal until May 1st, the day when the case was docketed. Therefore respondent was in no way injured. He could not have had a trial sooner under any circumstances. This rule of the court is in no sense a jurisdictional matter. It is not like some statutes regulating appeals where a compliance with the statute is necessary to give the court jurisdictiou. The rule was simply a regulation of practice which the court must apply with a reasonable discretion. We are not satisfied that an appellant should be turned away from court under the circumstances shown in this case. We believe that the results sought to be accomplished by the rule were in fact attained—that is, the opportunity for a speedy hearing of the appeal—and, that being true, the rule should not have been used to wholly deny a trial of the case. The action of the district court is reversed, and the case is remanded, with instructions to deny the motion to dismiss the appeal. The respondent makes no question as to reviewing, on appeal, the action of the district court in this case. (Howard v. Quinn, 2 Mont. 340; Marsh v. Kinna, 2 Mont. 547; Territory v. Milroy, 7 Mont. 559.) Reversed. Pemberton, C. J., and Harwood, J., concur.