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: ~C'f,vfi#~~ $,JA,nPL-fLA~j For P&~t~~: Turnage -and McNeil, Polson,Montana

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# ~ K. M. Bridenstine, Polson,Montana
Submitted: September 19, 1979 on briefs Decided: 

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# jyy 2 .c;-- Filed:Mr. Justice John C. Sheehy delivered the Opinion of the Court. Relator, David Allen Ross was chargedwith two traffic offensesby citations issued on December 1, 1978. Ross was convicted of "recklessdriving" 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 DistrictCourt. The Clerk who was newly elected, failed to forward the notice to the proper court. As a result,no written notice of intention to appealwas 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 onApril 6, 1979 by Justice of the Peace Mallory. Ross applied to the District Court for a writ of mandate
onApril 19, 1979,directingMallory 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 ofmandate was issued on June 21, 1979 commandingMallory to transmit the Justice Court records of the Ross proceedings MA,*;. k'/' to the District Court. E&ss asserts on this appeal that the District Court erred in issuing the writ ofmandate.Section 46-17-311,MCA, states: 

### " (1) All cases on appeal from justices'



# . .

# . courts must be tried anew in the district court 

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# . . " (2) The defendantmay 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 shallbe 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, sincewritten notice was not provided to the appropriate court,Ross did not perfect his appeal in themanner required by law and the Justice of the Peace had no concomitant duty to transmit the files to the DistrictCourt. Consequently there existed no basis forwrit of mandate to be issued.

Justice We Concur:

Just