Action by Martha Turner against Wells, Fargo & Co. to recover a sum of money on deposit with defendant, and which she claims was assigned to her by Minnie Barton, the depositor. Frank Kimball, administrator of the estate of Minnie Barton, intervened, and from a judgment for plaintiff appeals. Reversed.

E. W. Tatlock and W. C. Hall, for appellant. McDowall & Lyles, for respondent.

MERRITT, C. J. In the court below, this case and the two cases of Martha Turner, Plaintiff and Respondent, vs. Union National Bank, Defendant, and Frank Kimball, Intervener and Appellant, and also the case of Martha Turner, Plaintiff and Respondent, vs. The Utah Title Insurance & Trust Company, Defendant, and Frank Kimball, Intervener and Appellant, were tried together. The same evidence was heard and considered. The findings of fact and conclusions of law and the exceptions were substantially the same, and the same objections and exceptions to the admission of evidence, and the same assignment of errors, were made in each case. The pleadings were alike, and the basis of each action, and the facts and legal principles involved, were the same. All of these cases were submitted upon the argument and submission of the case against the Utah Title Insurance Company (decided at the present term) 37 Pac. 91. Upon the authority of the decision in that case, the judgment and decree of the court below in this case is reversed, and the case remanded, with directions to the court below to enter a judgment and decree in favor of the intervener, canceling the assignment, and delivering the same to the intervener, and directing the clerk of the court below to pay over the money in his hands in this case as custodian of the court to the intervener.

MINER, SMITH, and BARTCH, JJ., con

cur.

(10 Utah, 77)

TURNER v. UNION NAT. BANK (KIMBALL, Intervener).

(Supreme Court of Utah. June 4, 1894.) Appeal from district court, Salt Lake county; before Justice C. S. Zane.

Action by Martha Turner against the Union National Bank to recover a sum of money on deposit with defendant, and alleged to have been assigned plaintiff by Minnie Barton, the depositor. Frank Kimball, administrator of Minnie Barton, intervened, and from a judgment for plaintiff appeals. Reversed.

E. W. Tatlock and W. C. Hall, for appellant. McDowall & Lyles, for respondent.

MERRITT, C. J. In the court below, this case and another case of the same title, and the case of Martha Turner, Plaintiff and Re

spondent, vs. Wells, Fargo & Co., Defendant, and Frank Kimball, Intervener and Appellant, and also the case of Martha Turner, Plaintiff and Respondent, vs. Utah Title Insurance & Trust Company, Defendant, and Frank Kimball, Intervener and Appellant, were tried together. The same evidence was heard and considered. The findings of fact. and conclusions of law and the exceptions were substantially the same, and the same objections and exceptions to the admission of evidence, and the same assignment of errors, were made in each case. The pleadings were alike, and the basis of each action, and the facts and legal principles involved, were the same. All of these cases were submitted upon the argument and submission of the case against the Utah Title Insurance & Trust Company (decided at the present term) 37 Pac. 91. Upon the authority of the decision in that case, the judgment and decree of the court below in this case is reversed, and the case remanded, with directions to the court below to enter a judgment and decree in favor of the intervener, canceling the assignment, and delivering the same to the intervener, and directing the clerk of the court below to pay over the money in his hands in this case as custodian of the court to the intervener.

MINER, BARTCH, and SMITH, JJ., con

cur.

(14 Mont. 520) STATE ex rel. JOHNSON et al. v. CASE, Justice of the Peace.

(Supreme Court of Montana. July 2, 1894.) JUSTICES OF THE PEACE ALTERATION OF JUDG

MENT-JURISDICTION-REMEDY-CERTIORARI.

1. Code Civ. Proc. $$ 794, 799, provide that upon a verdict by a jury the justice shall "immediately" render judgment, and that when the prevailing party is entitled to costs the justice shall add their amount to the verdict. Held, that where, in an action on a note, in which the only contention was as to costs. a justice rendered judgment in favor of plaintiff for the amount of the note and interest, and in favor of defendants for costs, in accordance with the verdict of a jury, he had no jurisdiction, eight days afterwards, on plaintiff's motion, to change the judgment, as to costs, and tax them to defendants. Harwood, J., dissenting.

2. Where a justice, eight days after rendering judgment in accordance with the verdict of the jury, changes the judgment, as to costs, without having jurisdiction to do so, certiorari is the proper remedy. Harwood, J., dissenting.

Appeal from district court, Missoula county; C. S. Marshall, Judge.

Application by the state of Montana, on the relation of A. P. Johnson and another, for a writ of certiorari to review the action of J. F. Case, justice of the peace, in an action before him, by Edmund Giggy, against relators. From a judgment dismissing the writ, and affirming the judgment of the justice, relators appeal. Reversed.

This case comes here on an appeal from a judgment of the district court which dismiss

ed an application for a writ of certiorari against a justice of the peace, and affirmed a judgment of that justice. The application for a writ of certiorari in the district court shows that on February 6, 1892, Edmund Giggy commenced an action in the justice's court of J. F. Case against A. P. Johnson and John H. Bell, the relators in this application, and appellants herein, and that on February 16th the action was tried. The cause of action was upon a promissory note. Judgment was demanded for the amount of the note, interest, costs, and an attorney fee of $25. The defendants in that case (relators herein) now contend that they pleaded in that case what they claim was a tender of the amount of the promissory note, with interest, made before the commencement of the action. They offered to submit to a judgment for the amount of the note and interest, without costs. A jury was demanded in the justice's court, and the cause was tried before such jury upon that issue. The jury found a verdict for the plaintiff for the amount of the note and interest, without costs, and a verdict for the defendants for the costs of the action. The jury were then discharged. On the same day (February 16th) the justice entered judgment in accordance with that verdict. Afterwards, on the 23d of February, the plaintiff made a motion in the justice's court, which he called a "motion to correct the judgment." The motion was, in substance, as follows: Plaintiff moves the court to correct the verdict of the jury, and the judgment rendered by the court upon said verdict, and to tax the costs of said action to the defendants herein, for the reason, etc. This motion was by the justice granted, and in pursuance thereof, on the 24th of February, the justice entered a judgment against the defendants for the amount of the note and interest and costs, and also, after hearing proof, as the justice's docket of February 24th recites, for $50 attorney's fee in favor of plaintiff. So it appears that the defendants, on the 16th of February, obtained, in pursuance to the verdict of a jury, a judgment in accordance with what they here contend that they claimed; that is, that they should pay the note, with the interest, and that they should not pay the costs of the action. It then further appears that the justice, in effect, on a later day (February 24th), set aside the judgment which he had rendered on the 16th of February in accordance with this verdict, and gave a so-called judgment for the plaintiff for the whole amount, with costs and an attorney fee of $50. The defendants thereupon applied to the district court for a writ of certiorari to review the action of the justice of the 24th of February; their claim being that he exceeded his jurisdiction in giving the judgment of that date, and that there was no appeal therefrom, nor any plain, speedy, and adequate remedy. Code Civ. Proc. § 555. Upon the hearing of the certio

rari matter in the district court, that court dismissed the writ, and affirmed the judgment of the justice of the peace of February 24th. From that judgment of the district court this appeal is taken. The questions now before this court are, did the justice of the peace, in rendering the judgment of February 24th, exceed his jurisdiction? And, if so, was there no appeal from that judgment? And was there no plain, speedy, and adequate remedy, other than by certiorari?

Henry C. Stiff, for appellants. Murray & Musgrave and Geo. W. Reeves, for respondent.

DE WITT, J. (after stating the facts). This case is in fact an action ex relatione, in which the relators are A. P. Johnson and another, and the respondent is J. F. Case, a justice of the peace, although the papers in the court below were entitled Johnson et al. v. Case. Territory v. Potts, 3 Mont. 364.

Section 794 of the Code of Civil Procedure provides, in reference to justice courts: "Upon a verdict by a jury the justice shall immediately render judgment accordingly." In the case at bar the justice followed this statute; and in accordance with the verdict of the jury, and on the same day, to wit, February 16th, he entered judgment for the claim and interest against defendants, and judgment for costs against the plaintiff. On motion of plaintiff, on February 24th, the justice undertook to partially set aside the judgment above described, and thereupon enter another judgment. This attempted judgment of February 24th varied from the . judgment of February 16th, in that it added to the judgment against defendants an attorney's fee for the plaintiff, and also taxed the costs against the defendants, which was contrary to the verdict of the jury, and contrary to the judgment of February 16th. This was not done upon a new trial. A new trial was not applied for, nor granted, nor had. The action of the justice was simply a setting aside of the verdict of the jury as to costs, and the judgment in accordance therewith, and the entering of another and different judgment as to the costs, with the attorney's fee added to the judgment for plainsiff, without any further or other trial. For convenience in referring to the action of the justice, we will call the judgment of February 16th the first judgment, and the action of the court of February 24th the second judgment. As we understand this case, all that was sought to be attacked and overthrown by the writ of certiorari in the district court was the second judgment. No attack was, or ever has been, made upon the first judg ment, except the action of the justice of February 24th. The issue and contention upon the trial on February 16th were solely as to the costs, as defendants admitted their liability upon the demand and interest. It is quite likely that that issue was not properly

made, and that the pleadings were such, and defendants' alleged tender was such, that the judgment of February 16th, in favor of defendants for costs, was erroneous. But, upon the application for the writ of certiorari, no one complained of the first judgment. The question was wheher the justice had jurisdiction to render the second judgment, and to that inquiry, we think, we should address ourselves.

The statute provides that "upon a verdict by a jury, the justice shall immediately render judgment accordingly." Code Civ. Proc. § 794. "When the prevailing party is entitled to costs * the justice shall add their amount to the verdict." Id. § 799. As the case was tried to the justice the "prevailing party" was, in effect, the defendants, i. e. the defendants prevailed in the contention. The only contention was as to the costs. In this, defendants prevailed, i. e. the verdict was in their favor. The justice rendered judgment in accordance with the verdict, and in favor of defendants for costs. The word "immediately," as used in the statute above, has often been construed by courts. It has sometimes been construed as liberally as to mean 24 hours. But we have not observed that it has ever been construed as 8 days. Now, if the justice is to immediately render judgment upon the verdict of the jury (section 794), and if he is to add the costs to the verdict (section 799), it would seem to be in contemplation that the question of who was to pay costs was something determinable upon the return of the verdict, and the immediate rendering of judgment; that is, we say that the question of, against whom the judgment for costs is to be, seems to be determinable with the general verdict. We do not think that we can be understood as holding that a justice has no jurisdiction or power after judgment to add an omitted item of costs, or cut out an item wrongly and inadvertently taxed. Such questions we do not understand are now before us, and upon them we express no opinion. What we are considering is the matter of a verdict and judgment upon the question of who shall pay the costs,-not what the costs should be, in items. And, the matter of who shall pay the costs being adjudged by a justice in accordance with the verdict of a jury (section 794), has the justice jurisdiction, eight days afterwards, to set aside that judgment, and readjudge the costs against another party? We understand that to be the question before us.

On February 16th there was a judgment in favor of defendants, for their costs. Plaintiff did not attempt an appeal from this judgment. It was rendered by the justice upon the verdict of a jury. Code Civ. Proc. § 794. We are of opinion that we should not hold, under the circumstances of this case, that the costs were simply an incident of the judgment in the justice court, and, therefore, that the justice could add them eight days after the trial. Such view was not presented v.37r.no.2-7

by counsel for the justice, who appeared and argued the case in this court. Whatever may be suggested about costs being incidental to the judgment occurs to us as scarcely applicable to this case, where the costs, instead of being an incident, were in fact the only contention which was tried; improperly tried, perhaps; the issue badly pleaded, probably. But still it was the only contention tried, and therefore seems not quite properly called, in this case, "incidental." The verdict and judgment for costs in favor of defendants was separate and independent, and was not attached to any other judgment. It does not, therefore, seem to be appropriately called "incidental." We are of opinion that the proceeding of the justice in rendering the judgment of February 24th was clearly beyond his jurisdiction. Code Civ. Proc. § 794; Winter v. Fitzpatrick, 35 Cal. 269; Weimmer v. Sutherland, 74 Cal. 343, 15 Pac. 849; Fox v. Meacham, 6 Neb. 530; Foist v. Coppin, 35 Ind. 471; Foster v. Alden, 21 Mich. 507; Stephens v. Santee, 49 N. Y. 35; Hamill v. Champlin, 12 R. I. 124; People v. Delaware Common Pleas, 18 Wend. 558; Corthell v. Mead (Colo. Sup.) 35 Pac. 741. In the Colorado case last cited, it is held that, when a justice enters judgment on a verdict of a jury, his act is simply ministerial, and not judicial. That case further remarks: "The judgment being entered according to the verdict, the aggrieved party may appeal; but the justice has no authority to render any judgment contrary to the verdict, and, if he does so, such judgment may be regarded as a nullity. Any other doctrine would involve proceedings in justices' courts in troublesome, expensive, and vexatious delays, and would greatly hinder and embarrass the administration of justice. Freem. Judgm. § 53a; High, Extr. Rem. §§ 235-242."

The attempted judgment of February 24th was therefore void. Then the question remaining for our consideration is, can that judgment be reached and overturned upon a writ of certiorari? The respondent contends that an appeal lies to the district court from the justice court, from such judgment, and cites Ducheneau v. House, 10 Pac. 427, 4 Utah, 363; Saunders v. Seed Co. (Utah) 24 Pac. 532; Trustees v. Shepherd (Ill. Sup.) 28 N. E. 1073; Bank v. McKee, (S. D.) 50 N. W. 1057; Livermore v. Campbell, 52 Cal. 75; Fox v. Nachtsheim, 3 Wash. St. 684, 29 Pac. 140. He therefore contends that if an appeal lay from the judgment of the justice of February 24th the certiorari was properly dismissed by the district court. Hayes v. District Court, 11 Mont. 225, 28 Pac. 259. But let us examine whether, in fact and in substance, there is an appeal which reaches the attempted judgment of February 24th. Anderson's Law Dictionary defines an "appeal" as, "To remove a cause to a higher court for review and retrial." In general terms, an appeal is a resort to an upper court, to review the action of a lower

court. In the justice court, in this case, there were two records, each of which is called in the argument a "judgment." One was the first judgment, of February 16th; the other was the second or attempted judgment, of February 24th. Of the former, the defendants had no complaint. The latter was their grievance, which they wished to have righted. If the defendants could have appealed from the second judgment, and if they could have had that action of the justice reviewed, and if they could have had the district court decide whether the justice of the peace was right or wrong in his action of February 24th, and if, it appearing he was wrong in that respect, the district court could have reversed that wrongful action, and have sent the case back with directions to the justice to wipe out the attempted judgment of February 24th, and leave defendants as they ought to have been left by the justice (that is, with the judgment of February 16th standing until it was properly attacked), then, if such could have been the result of the appeal by the defendants from the justice's to the district court, the defendants would have had an appeal in substance as well as in name,-an appeal which would have reached the grievance which they claimed to have suffered. But an appeal to the district court would have wrought out no such result as above suggest ed. Had the defendants appealed, the district court would never have reviewed the pretended judgment of February 24th. The case would have been tried de novo. The attempted judgment of February 24th and the judgment of February 16th would have each been ignored, and the matter would have been tried de novo in the district court. There would have been a retrial in that court of the merits of the case. There would not have been a review of the performance of February 24th. The latter, the defendants wanted; the former, they did not. They would therefore get what they did not want, which would be an injury to them, and would be deprived of that which they sought to obtain. They would ask for bread, and receive a stone. State v. Evans, 13 Mont., 33 Pac. 1010. If it be suggested that an appeal by defendants from the judgment of February 24th would obtain for them a review of the determination of the question of who should pay the costs of the action in the justice's court, it may be replied that defendants had obtained a judgment in their favor once (February 16th) upon that subject (a judgment which had been set aside by the justice without jurisdiction), and, if there were appealing to do, defendants had the right to look to plaintiff to assume that burden. It is said in the Colorado case, cited above: "Did petitioners have a plain, speedy, and adequate remedy, by the ordinary course of law, for the action of the justice in refusing to enter judgment upon their verdict? It is

urged that their remedy was by appeal, but this view is not sustained by sound reason, nor by the weight of authority. As we have seen, the justice, in assuming to arrest judgment upon the verdict, and in dismissing the case against claimants, acted wholly without authority. Even if the claimants could have appealed from the entry of such orders, such a remedy would not have been adequate. They had tried and won their cause, and were entitled to the fruits of their victory. Why should they be required unnecessarily to assume the expense, trouble, and hazard of another trial? Judgment should have been entered upon the verdict, and then the burden of an appeal, if any had been taken, would have fallen upon the plaintiffs. The taking of an appeal is a matter of some inconvenience and hardship. It involves the giving of a bond, with surety. and the advancement of costs, as well as the hazard of another trial. A remedy, there fore, which required the claimants, rather than the plaintiffs, to take an appeal, was not adequate. Besides, if the judgment had been entered for the claimants, it is not certain that any appeal would have been taken." Corthell v. Mead, 35 Pac. 743. It is said by the supreme court of California, as to another matter, but of kindred nature: "A mandate that the superior court proceed to a hearing of the appeal on the merits, or to a retrial of the issues, would not annul, but simply ignore, the order dismissing the appeal. The order must first be annulled by a direct proceeding; that is, by certiorari. Such is the remedy when the court has entered a judgment or made an order in excess of jurisdiction." Levy v. Superior Court, 66 Cal. 292, 5 Pac. 353. So, in the case at bar, by an appeal the defendants in the justice court would attack and destroy that which was not to them a grievance, but rather a benefit; that is, the judgment of February 16th. And they would never be able to attack, or have reviewed, the griev ance which they sought to appeal from, and which, in name and in shadow, they would appeal from; that is, the attempted judg ment of February 24th. We are satisfied that such an appeal would be wholly unsubstantial. It would not be a review or retrial of the matter complained of. See defi. nitions of "appeal," supra. Its only characteristic of an appeal would be its name. It is said in Bank v. McKee, supra: "To justify the issuance of the writ, there must not only appear an excess of jurisdiction, but that there is no appeal, or other adequate remedy. If the judgment complained of could have been brought to this court by appeal, and the question of jurisdiction determined in such proceeding, that fact alone would prevent the issuance of the writ. Upon this point the statute could hardly be plainer. The evident design of the statute is to make appeal the ordinary method of bringing cases up for review, and certiorari

an extraordinary method, to be resorted to only when necessary to save rights which would otherwise be lost." We are of opinion that the case at bar is just such a one as is suggested in the closing words of that South Dakota case. The certiorari before us in this case is necessary "to save rights which would otherwise be lost." It is necessary to save to the defendants in the justice court the right to have the illegal action of the justice on February 24th obliterated and destroyed, and, moreover, to have it destroyed without carrying down in such destruction the judgment of February 16th. Such right of defendants to demolish the illegal judgment of February 24th, and preserve the judgment of February 16th, could not be saved by an appeal on the part of the defendants, and such right could be saved by this writ of certiorari. Fox v. Nachtsheim, supra; Paul v. Armstrong, 1 Nev. 95.

The result of these views is that we are of opinion that, conceding that an appeal did lie from the justice court to the district court, yet that such an appeal was one in name only, and was not an appeal in substance or in fact, as reaching to the griev ance. Certiorari was therefore an appropriate remedy against the justice. The judg ment of the district court, dismissing the writ of certiorari and affirming the judgment of the justice, is reversed, and the case is remanded, with instructions to the district court to sustain the writ of certiorari, and, in pursuance thereto, to annul the judgment which the justice of the peace attempted to render and enter on February 24th. Reversed.

HARWOOD, J. (dissenting). Viewed in the light of the facts disclosed by the record, it seems to me the foregoing is a remarkable treatment and determination of this case. The authorities cited and quoted are undoubtedly correct in affirming that a justice of the peace is bound to enter judgment according to the yerdict returned by the jury upon the issues involved in a case submitfed to a jury. I do not understand that there is a dispute, or a difference of opinion, upon that proposition. Nor do I suppose the learned judge of the district court, whose decision is, by the foregoing opinion, declared erroneous, and ordered reversed, would hesitate a moment to so hold, upon such a point being presented. My impression is that a reporter preparing the foregoing opinion for publication would note, as his syllabus, that: "A justice of the peace must enter judgment, in a case tried in his court, according to the verdict of the jury returned on the issues presented; and a judgment entered contrary thereto will be annulled by a higher court on writ of certiorari. Judgment of the district court, holding otherwise, reversed." And I presume it

would be a matter of some astonishment to those reading the majority opinion, and regarding the case from the impression thereby conveyed, that the learned judge of the district court should have fallen into such palpable error, and a matter of more astonishment that there should be dissension in this court on so plain and simple a proposition, especially in the light of the foregoing exposition. But notwithstanding a syllabus to the effect above stated would, as I think, express the impression naturally derived from the foregoing treatment, and state a correct conclusion of law upon a hypothetical proposition of fact, I cannot subscribe thereto, as applicable to determine the case at bar, because, on submission of the opinion for concurrence, my examination of the record disclosed what seemed to me a state of facts showing an entirely different case than that manifestly proceeded upon in reaching the conclusion announced. This led to a very thorough canvass and discussion, in the counsels of this court, of the facts disclosed by the record. But to my surprise, not finding any facts reconcilable to the assumptions of the majority opinion, the same was nevertheless adhered to, as originally determined upon; and, evidently to support the same in point of fact, a statement of the case has been prefixed thereto, which purports to give the facts upon which the determination of the majority, reversing the district court, is based. Therein, after briefly setting forth the nature of the proceedings in the justice's court, the review and affirmance thereof on writ of certiorari by the district court, and the appeal therefrom to this court, it is stated that "the defendants in that case (relators herein) now contend that they pleaded in that case what they claimed was a tender of the amount of the promissory note, with interest, made before the commencement of the action." The same assumption is also reiterated in that statement of the case, as follows: "So it appears that defendants, on the 16th of February, obtained, in pursuance of the verdict of the jury, the judgment in accordance with what they here contend that they claimed; that is, that they should pay the note, with interest, and that they should not pay the costs of the action." From this it plainly appears that the majority, according to the statement prefixed to their opinion, proceed not upon what the record shows defendants pleaded in the case,-although the pleadings are entirely in writing, prepared by counsel of the respective parties, and fully set forth in the record,-but they proceed upon the assertion that defendants "now contend that they pleaded in that case what they claimed was a tender," or, as they secondly assert in the statement, "what they here contend they claimed; that is, that they should pay the note, with interest, and that they should not pay the costs of t) v action."