#### STATE ex rel. REYNOLDS, Respondent, v. LAURENDEAU, Appellant.

(No. 1,482.)

(Submitted March 16, 1903.

Decided March 19, 1903.)

*Justices of the Peace*— Default *Judgment*— Certiorari—Rem-*edy1 by Appeal*— Payment *of Judgment*— Subsequent *Annulment.*

1. Code oí Civil Procedure, Section 1761, provides that there is no appeal from a judgment by default in a justice’s court, except on questions of law appearing on the face of the papers, except where the justice has abused his discretion in setting aside or refusing to set aside a default judgment. *Held*that, where a justice overruled a motion to vacate a default judgment, such section authorized an appeal, and the judgment could not be reviewed by *certiorari.*

2. Where, after a writ of *certiorari*had been issued to review, a justice’s judgment, but before the justice had made his return thereto, and before the hearing of the writ by the district court, the justice’s judgment was satisfied, as appeared by the justice’s transcript filed in return to the writ,' it was error for the district court to enter judgment in the *certiorari*proceedings setting aside the judgment of the justice.

*Appeal from District Court, Silver Bow County; Henry C. Smith, Judge.*

*523
      *Certiorari*by tbe state, on relation of S. J. Reynolds, against E. J. Laurendean, as justice of tbe peace, to review a justice’s judgment. From a judgment vacating and setting aside tbe judgment, defendant appeals.

Reversed.

*Mr. M. D. Leahey,*for Appellant.

*Mr. Johm N. Kirk,*for Respondent.

MR, JUSTICE HOLLOWAY-

delivered tbe opinion of tbe court.

In November, 1896, tbe Oudaby Packing Company commenced an action in claim and delivery in tbe justice of tbe peace court for Silver Bow towinsbip against Samuel J. Reynolds, sheriff of Silver Bow county, Montana, to recover possession of certain personal property, or for tbe value thereof in ease possession could not be recovered, and for damages for its retention. After an amended complaint was filed, a summons was issued, returnable November 16 th at 2 o’clock p. m., and placed in tbe bands of Evan Herbert, a constable in said county, wbo made service by delivering a copy thereof to tbe defendant, Reynolds. On- November *16th,*after waiting one hour after return time., and no appearance having been made by tbe defendant, bis default was entered, and, proof having been made sufficient to. satisfy tbe court, a judgment for tbe plaintiff as prayed for in tbe amended' complaint was entered. On November 28th tbe defendant, Reynolds^ appeared in tbe action by a motion to set aside tbe judgment and open tbe default, upon tbe ground that summons bad not been served in tbe proper manner, or by any proper person authorized to make service thereof. This motion was thereafter overruled. On April 23, 1898, a writ of *certiorari*was issued from tbe district court, directed to the justice of tbe peace, requiring him to certify up to tbe district court a transcript of tbe record and proceedings bad in tbe case of *Cudahy Packing Company*v. *Reynolds,*but no return thereto seems to have been made until December 8, 1898, when a transcript of tbe record was filed in *524tbe district court., which, among other things, contains this recital: “The within judgment is hereby canceled upon this record and declared fully satisfied, the amount thereof having been paid to the sheriff of Silver Bow county upon an execution heretofore issued from the Second judicial district court of Montana, wherein an abstract of said judgment was filed. Dated this 15th day of July, A. D. 1898. M. D. Laebey, Atty. for Plaintiff.” Upon the writ and this return the district court on July 28, 1899, made and entered a judgment annulling and setting aside the judgment entered in the justice of the peace court on November 16, 1896. B'rom this judgment of the district court this appeal is taken.

Numerous errors are assigned, but we will consider only two: (1) The court erred in issuing a writ of *certiorari,*for the reason that the sheriff had a plain, speedy, and adequate remedy at law by appeal; and (2) the district court erred in entering its judgment, for the reason that the judgment obtained in the justice of the peace court had been satisfied -long prior to the date of entry of the judgment in the district court.

1. It is contended that *certiorari*would not lie because the defendant, having appeared and moved the court to* set aside the judgment -and open the default, upon the court’s refusing to do so, could have appealed from the judgment i» the district court, and there have had, upon that appeal, every question reviewed and determined which he could have by the writ of *certiorari.*Section 1161 of the Code of Civil Procedure among other things provides: “* * * There is no appeal from a judgment by default rendered in a justice’s or police eoqrt, ■except on questions of law which appear on the face of the papers or proceedings, and except in cases when the justice’s or police court has abused its discretion in setting aside or refusing to set aside a default or judgment. * * *” In *State ex rel. Shanahan*v. *Lindsay,*22 Mont. 398, 56 Pac. 827, this portion of Section 1761 received careful consideration and construction by this court, with the conclusion reached that after the justice’s court has overruled a motion to vacate a default judgment an appeal will lie to the district court, and on that appeal the dis*525trict court will first try *de novo*tbe legal, question raised by the motion to vacate tbe judgment of tbe court below. If no abuse of discretion be shown, tbe district court will enter judgment of affirmance; if sueb abuse be shown, tbe district court will set aside the default and permit tbe injured party to further plead, and tbe case will then proceed upon tbe issues raised by such further pleadings. In our judgment that decision is conclusive of this case. Tbe remedy upon *certiorari*is one uniformly classed as an extraordinary remedy, and can only be resorted to in tbe class of cases to 'which it is applicable — when there is no appeal, nor any plain, speedy, or adequate remedy in tbe ordinary course at law. (Section 1941, Code of Civil Procedure.) Thera being an appeal from tbe judgment of tbe justice of tbe peace court, *certiorari*would not lie to- correct tbe error complained o-f. *(Hayes*v. *Dist.*Court, 11 Mont. 225, 28 Pac. 259; *In re*Finkelstein, 13 Mont. 425, 34 Pac. 847; *State ex rel. Shing*v. *Lenahan,*17 Mont. 518, 43 Pac. 712.)

2. It is further urged that after tbe writ of *certiorari*issued, but before tbe justice of the peace made bis return thereto, and long prior to tbe final bearing by tbe district court, which resulted in tbe judgment herein appealed from, tbe judgment in tbe case of *Cudahy Packing Company*v. *Reynolds*had been fully satisfied and discharged of record, and that this fact was before the district court in the transcript of tbe justice which be filed in return to tbe writ. An examination of that portion of the record containing tbe return, of tbe justice of tbe peace shows the satisfaction and discharge of tbe judgment, duly acknowledged of record by tbe attorney for tbe plaintiff in that action on July 15, 1898. With this entry before tbe district court, wa fail to see bow that court could malee and enter a judgment annulling and setting aside a judgment of tbe justice of tbe peace court which was not then, and bad not been for a year, in existence.

For tbe reasons herein set forth, tbe judgment appealed from is reversed, and tbe cause remanded, with directions to tbe lower court to set aside tbe judgment made and entered on tbe 28th day of July, 1899, and dismiss tbe *certiorari*proceedings.

*Reversed and remanded.*

*526Mb. Justice MileueN : I concur on the second ground set out and argued in paragraph numbered two.