No. 14887 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

STATE OF MONTANA, ex rel., 

DAVID ALLEN ROSS. 

VIRGINIA MALLORY, JUSTICE 

OF THE PEACE, POLSON DISTRICT, LAKE 

COUNTY, MONTANA, 

Appeal from: District Court of the Fourth Judicial District, 

Honorable Jack L. Green, Judge presiding. 

Counsel of Record: 

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For P&~t~~: 

Turnage - and McNeil, Polson, Montana 

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For Reepe&k&: 

~ K. M. Bridenstine, Polson, Montana 

Submitted: September 19, 1979 

on briefs 

Decided : 2, A = 1974 

jyy 2 .c;-- 

Filed: 
Mr. Justice John C. Sheehy delivered the Opinion of the 

Court. 

Relator, David Allen Ross was charged with two traffic 

offenses by citations issued on December 1, 1978. Ross was 

convicted of "reckless driving" and "leaving the scene of an 

accident" on January 8, 1979 after a nonjury trial in the 

Lake County Justice Court of Virginia Mallory, the appellant. 

On this same date, an oral notice of appeal was given to the 

Justice Court on behalf of Ross who posted an appeal bond as 

ordered. 

On January 16, 1979, written notice of appeal addressed 

to the Justice Court was filed on behalf of Ross, inadvertently 

with the Clerk of the District Court. The Clerk who was 

newly elected, failed to forward the notice to the proper 

court. As a result, no written notice of intention to 

appeal was filed with the Justice Court within the ten day 

period following judgment as required by statute, nor was 

the record of the proceedings of the Justice Court transferred 

to the District Court. The appeal was dismissed and the 

bond ordered forfeited in Justice Court on April 6, 1979 by 

Justice of the Peace Mallory. 

Ross applied to the District Court for a writ of mandate 

on April 19, 1979, directing Mallory to set aside the order for 

dismissal and to transmit the record and file to the District 

Court. A hearing was held on May 16, 1979 and on June 13, 1979 

the District Court entered its findings and entered judgment 

that a writ of mandate be issued. Subsequently, a peremptory 

writ of mandate was issued on June 21, 1979 commanding Mallory 

to transmit the Justice Court records of the Ross proceedings 

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to the District Court. E&ss asserts on this appeal that 

the District Court erred in issuing the writ of mandate. 
Section 46-17-311, MCA, states: 

" (1) All cases on appeal from justices' . . . courts must be tried anew in the 

district court . . . 

" (2) The defendant may appeal to the 

district court by giving written notice of 

his intention to appeal within 10 days 

after judgment. 

" (3) Within 30 days, the entire record 

of the justices! . . . court proceedings 

shall be transferred to the district court 

or the appeal shall be dismissed. It is 

the duty of the defendant to perfect the 

appeal. " 

The statute is clear and expressly requires that "written" 

notice of appeal be filed in Justice Court. The duty to 

perfect an appeal is also explicit and expressly directed to 

be that of the defendant. 

In the present case, since written notice was not 

provided to the appropriate court, Ross did not perfect his 

appeal in the manner required by law and the Justice of the 

Peace had no concomitant duty to transmit the files to the 

District Court. Consequently there existed no basis for writ 

of mandate to be issued. 

Justice 

We Concur: 

Just