Farleigh v. Kelly

MR. JUSTICE WORD delivered the opinion of the court. Respondents move the court to strike from the record on appeal the statement of the case on motion for new trial, and to dismiss the appeal in said action, for the following reasons: (1) Because the said statement was not served on respondents’ attorneys, or settled, allowed, or filed, within the time prescribed by the Code of Civil Procedure, the.time for serving settling, or filing such statement not having been extended by stipulation of parties, or by an order of the court in which the case was tried, or by- the judge thereof. (2) Because no brief has been served on respondents’ attorneys or filed within 60 days of the filing of the transcript on appeal. [371] The facts as disclosed by the record, are as follows: The proponent filed for probate in court an instrument purporting to be the last will and testament of John D. Allport, deceased. The contestants duly filed objections to admitting said will to probate, alleging, among other things, that it was a forgery. To these objections a replication was filed, and thereafter an amended answer was filed. Hon. M. H. Parker, judge of the court, was disqualified, and Hon. Henry C. Smith, judge of the First judicial district, was requested to hold court for Judge Parker during the trial of the case. The case was tried before a jury. The jury returned their verdict November 19, 1899, whereby it was found that the will was forged. Thereafter the proponent served notice of intention to move for a new trial, stating that it would be based upon a statement of the case and upon affidavits. The District Court of Jefferson County adjourned on the 19th day of November, 1899, and no other term of court was held between that time and December 4, 1899. On December 4, 1899, Judge Smith, at Helena, Montana, made an order extending the time within which proponent might serve her statement. The contestants, at all stages of the proceedings relating to the settlement of the said statement, objected to the settlement or allowance thereof, upon the ground that the same was not served in time, and that Judge Smith did not have authority to extend the time within which it might be served. These objections were embodied in the statement, and the statement was settled by Judge Smith, over the objections. J udgment was entered in the case, February 5, 1900. The motion for a new trial was overruled May, 12, 1900. On May 24, 1900, notice of appeal was served, whereby an appeal was taken from the order overruling the motion for a new trial, but not from the judgment. The question presented is: Did the Honorable Henry C. Smith, the judge who tried said cause, have the power to make the order of December 4, 1899, extending the time within which proponent might prepare and serve her statement? [372] Counsel for respondents take this position: Admitting that, under the Constitution and Code of this state, a judge of one district, called in to hold court for a judge of another district, for some reason disqualified, has the same power, either in court or chambers, as the judge thereof, and that while in the Fifth judicial district his honor, Judge Smith, had the power to make the order of ‘ December 4th, yet respondents contend that when his honor, Judge Smith, returned, to his own district he did not and could not take with him, and there exercise, any of the powers of the judge for whom he was holding court. In the discussion of the questions involved in this motion, both the counsel for respondents and for appellant seem to have overlooked Section 1821 of the Code of Civil Procedure, which is as follows: “Sec. 1821. Motions must be made in the county in which the action is brought, or in any adjoining; county in the same district. In case of the absence of the judge of the district from his district, such motion may be made before the judge of aDy adjoining district. Orders made out of court may be made by the judge of the court in any part of the state.” Under Section 12 of Article VIII of the Constitution, Judge Smith had the power to hold court in the Fifth judicial district, and to try said cause. While holding said court, Judge Smith had the same power, either in court or chambers, as the judge thereof. (Code of Civil Procedure, Sec. 36). Under Section 1173 of - the Code of Civil Procedure, the power to extend the time within which the statement must be prepared and served is expressly given. The order extending the time was one which the judge could make at chambers (Code of Civil Procedure, Secs. 170, 171, 190); and under Section 1821 of the Code of Civil Procedure, supra, Judge Smith had the power to make such order after his return to his own district. Briefly stated, these are the conclusions we have reached upon the first ground of this motion. . Authority for our position is found in the case of Matthews v. Superior Court, 68 Cal. 638, 10 Pac. 128, where the su [373] preme court of that state — under a state of facts practically the same as that of' this case — reached the same conclusions. The Code of Civil Procedure of California (Section 1004), as does our -own, provided that ‘orders made out of court may be made by the j udge of the court in any part of the state. ’ ’ (See, also, Ex parte Nelson & Kelly, 62 Ala. 376; Gould v. Duluth & Dakota Elevator Co., 3 N. D. 96, 54 N. W. 316; Holden v. Haserodt, 2 S. D. 220, 51 N. W. 340.) Respondents’ counsel question the constitutionality of Section 36 of the Code of Civil Procedure; this, upon the ground that by Section 12, Article VIII, of the Constitution, the authority of one judge, when acting for another, is limited to the act of holding court, while Section 36 of the Code of Civil Procedure gives to the judge holding court for another judge the same power, either in court or chambers, as a judge thereof. In our opinion, this section of our Code of Civil Procedure just referred to is constitutional. In the case of Wallace v. Helena Electric Railway Co., 10 Mont. 24, 24 Pac. 626, 25 Pac. 278, it was intimated that an act of the legislature granting to a judge holding court for another judge such powers as are conferred by said Section 36 of the Code of Civil Procedure would be constitutional. While the constitutionality of this section of our Code has never been passed upon by this Court, yet we find that in other states acts granting like powers have been held to be consistent with constitutional provisions, the same as, or similar to, those of Section 12 of Article VIII of our own Constitution. (Gardner v. Jones, Judge, 126 Cal. 614, 59 Pac. 126; Gould v. Duluth & Dakota Elevator Co., supra; Holden v. Haserodt, supra.) As to the second ground urged by counsel for the dismissal of this appeal, we are of the opinion that under the circumstances of the case, and upon the showing made, the motion to dismiss must be denied upon this ground also; this, upon the condition, however, that appellant files in this Court and serves upon respondents briefs in her behalf within 30 days from the date hereof. Denied.