The Anaconda standard. [volume] (Anaconda, Mont.) 1889-1970, 1895-12-08
THOSE PESKY CODES
Judge Mediation Makes an Important
Ruling. j
TO JUSTICES OF THE PEACE
The Old Case OF. M. L. Holland De-
cIded-Certaln Constables May
Have More Money Coming
to Them Pretty Soon.
% JUSTICES OF THE PEACE

Judge Mediation yesterday made a
quite Important ruling under the new
codes that will be of special interest to
justices of the peace, and all justice
court lftigants. The decision was made
in an action brought against NJ. L.
Holland, justice of the peace. for a
writ of review and mandamus. The
petitioner, who was a party to a suit
dn Hollands court, wanted to take an
appeal, and rendered the Justice 50 for
the transcript, but Mr.. Holland refused
It and demanded all the fees to which
he had been entitled for the trial of the
case, but which he had failed to collect
in advance and which the petitioner
said amounted TO s21.50. so the matter
was taken before Judge Mediation.
The case was on the calendar for
several week and was finally taken, un-
der advisement a week ago yesterday.
The Judge in passing on the matter
said that on the records in the case he
would have to dismiss the proceedings.
burt he would nevertheless take occa-
sion to express his views on some mat
tiers presented by the case. In the first
place he said, a mandamus. while prop
err was not the remedy provided by
statute. If a justice of the peace re-
fuses to send up transcript an order.
may be had in the district court re-
quiring him to transmit the transcript.
In considering the particular" case,
against Mr.. Holland, the judge said the
first fact to be observed was that Mr..
Holland had been appointed to office by
the board of county commissioners to
fill vacancy and that the appointment
was made after the 1st of July, when
the new codes went into effect, and his
acts were therefore governed by the
codes. Sections 1850 and 1852 of the
code Of civil procedure prescribe the
duties OF the respondent in regard to
appeals. The latter section says that
upon receiving a notice of appeal and
filing of an undertaking the Justice
must within ten days, on the payment
OF the fees therefor, transmit to the
clerk OF the district court a certified
copy of his docket, the pleadings, all
notices, motions, and other papers filed
in the case and the justice or Judge
may be compelled by the district court,
by an order entered upon motion, to
transmit such papers. and may be fined
for neglect or refusal to do So An
other section specifies the fees to which
| justice IS entitled for filing the notice
and undertaking and transcript on APP
peal at $3.50. Under the old law the
fee was ST. and the petitioner in this
case represented in his affidavit that
he rendered the justice 81, and there
fore he did not comply with the law,
and Is therefore not entitled to main
| tain the action.
By reference to the code II will be
! seen that the justice of the peace may
require the plaintiff to pay $3.50 in adj
vance at the time OF the commence
ment or the suit and certain other fees
/ may be demanded in advance before
an answer is filed or a Judgment en-
tered. The respondent doubtless based
his action. in refusing to transmit the
| transcript. on the annexation of section
1862. which refers to some California
case and says that "A justice may re-
fuse TO send up the transcript unless
all his legal fees are first paid by the
| appellant" \but an examination of ID
| VIII show that the provision of the
California statute, on which the de-
| cision was based, was in exact accord
with that opinion, while the statute
OF this state says the justice shall be
entitled to only the fee of $3.50 for the
undertaking and transcript on appeal.
Judge Mediation said he called atten-
| ton to that fact to show with what
discrimination and research the ammo
tations of the Montana codes were
made. and concluded his opinion by
| saying that Justices should not de-
mand more fees than what they were
entitled to. and called attention to the
fact that they could be fined for refus-
Ing an application for transcript on ap-
peal. sa.-
Judge McHatton's ruling that ms
tees appointed subsequent to July 1
were governed by the codes will result
in lot of trouble for the county COM
missioners. Besides Justice Holland,
the commissioners have appointed
Constable G. l.. Wood of South Butte,
Constable G. ]. Lazzari of MeaderviIle
and Constable Henry woodthorpe of
q L hn \ -.
served about five months and their fee
bills have always been allowed under
the old law. although the officers made
them out under the new law, by which
they are allowed considerable more in
fees for the same work than under
the old law. There Is also a great deal
OF difference In fees for justices, but
on the whole the latter are allowed less
under the new than under the old law.
Under Judge McHatton's ruling, the
constables VIII have claims against
the county for back fees and the com
missioners viii be compelled to KEEP
two sets OF fee accounts-one for the
old officials and the other for those ap-
pointed since the codes went into eff.
feet
The question to some extent will
soon be passed on by the supreme
court IN the case taken up from Judge
Milburn's decision that police magis
trates have no Jurisdiction. II the su
preme court sustains Milburn's decis
ion. then the codes win affect all Off
GERS alike. but II II Is reversed ther
they will be no better OF than they ar,
now. Under Judge McHattons ruling
the commissioners figured II out yes
terday that all constables. and justices
in the county. II they would gain any
thing by IL. could resign and be reap
pointed or others could be appointed II
their places and reap the benefits o
the increase in fees provided by th'
. I