NO. 81-163 INTHE SUPREME COURT OF THE STATE OF MONTANA 1981

CITY OF HARDIN, Plaintiff and Respondent,

VS

# . VICKI LYNN MYERS, Defendant and Appellant.

Appeal from: DistrictCourt of theThirteenth Judicial District, In and fortheCounty of Hardin. Honorable RobertWilson, Judge presiding. Counsel of Record: For Appellant: Stacey and Jarussi, Billings, Montana For Respondent: ClarenceT. Belue, CityAttorney, Hardin, Montana

Submitted on briefs: July 9, 1981 Decided: 

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## 111981 Filed: 

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# 111g8IMr. Justice John Conway Harrison delivered the Opinion of the Court. Vicki Lynn Myers was charged with driving while intoxicated in Hardin, Montana, on September 6, 1980. At that time, she was given a notice to appear and complaint which stated the location of the offense as "Third Street" and listed theplaintiff as the City of Hardin. On October 

### 2, 1980, Myers moved the City Court of Hardin todismiss the charge claiming the complaintmade no specific allegationof place and, therefore, did not confer jurisdiction on the City Court. The motion was denied, a jury trial held and Myers found guilty. Myers appealed the guilty verdict. The District Court ordered that the respondent be allowed to amend the complaint to show the specific location of the offense as being in the City and remanded the matter to the City of Hardin for trial at a later date. From that order Ivlyers appeals. Two issues appear before thisCourt: 1. Does the District Court have jurisdiction to remand for retrial a matter on appeal from CityCourt? 2. Was the charging complaint fatally defective in that the allegation of place was not specific enough to confer jurisdiction on a court? Appellant contends the District Court has no jurisdiction to remand the case to City Court for further proceedings. Montana statuteprovides: "All cases on appeal from justice or city courts must be tried anew in the district court 

# . . ." Section 46-17-311, MCA. Relying on Forsythe

v. Wenholz (1976), 170 Mont. 496, 554 P.2d 1333, appellantargues the exclusive remedy available to a City Court defendant on appeal 

### is a trial de novo in District Court. In Forsythe, the defendant filed for a new trial injustice court following 

### a guilty verdict for driving while intoxicated. On review, the Justice of the Peace dismissed the charge. The county attorney sought writs of mandamus and supervisory control for reinstatement of the guilty verdict. This Court upheld the District Court's finding that a Justice Court defendant's exclusive remedy for a new trial 

### is a trialde novo inDistrictCourt. Respondent recognizes Forsythebut claims appellant's right to 

### a trial de novo was preserved with the District Court's remand toCityCourt, and, therefore, the actionwas proper. We disagree. On appeal from City Court, the District Court does not 

### sit asa court of review but it triesthe cause de novo. White Sulphur Springsv. Voise (1959),136Mont. 1, 343P.2d 855; State ex rel. Borberg v. District Court (1952), 125 Mont. 481, 240 P.2d 854; Statev. O'Brien (1907), 35 Mont.

SincetheDistrictCourt has no authorityto

### sit asa court of review, 

### its remand toCity Court was improper. On appeal from aJusticeor CityCourt, the District Court must try the case anew. Since thismatter 

### is remanded to the District Court, 

### tne second issue raised willnot be discussed.he concur: