The Butte inter mountain. [volume] (Butte, Mont.) 1901-1912, 1901-12-27
COURT RULES COURT
FAILURE TO OBSERVE RULE RE-
SUITS IN MIX UP.
JUDGE SUSTAINS THE CLERK
Damage Suit Of Mae Thorne VS..
the Northern Pacific
Overruled.

The Northern Pacific Railroad COM
pany filed in the United States court to-
day a motion to set aside the default
judgment obtained against it by Mae
Thorne. a stenographer, about the mid
die of November.
In the document the company says
the Judgment was secured through mis-
take inadventure, surprise and eNcus-
able neglect on it's part.
The motion is based upon an affidavit
made by William Wallace, Jr., division
counsel for the defendant, who says he
has had charge of the company's Mon
tana court business since January l,
1897
He says the complaint In the case was
filed October %. and on November Z he
mailed demurrer and copy of it to l..
p Sanders, local counsel for the COM
pany in this city; that on November IL
he received an Acknowledgements of the
receipt of the documents from Mr.. San
ders; that the clerk of the court filed the
demurrer and Attorney J. NJ. Dixon, for
the plaintiff, accepted services of it,;
that the clerk of the court billed him
for fee of SO for the appearance of the
defendant and he at once paid It.
Had he refused to receive or file the
demurrer for lack of certificate. of
counsel. says Mr.. Wallace, Il would
have had the certificate attached to it
and filed at once or on the succeeding
day
'Affiant further says on information
and belief that rulee IL of the common
law rules of this court has never been
regarded or observed, but has been gen.
\ AZ tn, law
lions. In connection with Deputy Clerk
Drake of this court. I have examined
the demurrers and pleadings in all law
actions in the Helena division of this
court since January, 1899, and about
three years back and out of all of them
the rule was never observed in any eX-
cept two cases, and in both of these in
stances by the same attorney. who how
ever. in another case disregarded the
rule: and in every other instance in the
preceding three years in the practice OF
this court the pleadings in law actions
have been filed without any certificate
required by the rule: and such pleadings
have always been received and filed by
the clerk and treated as sufficient plead
ings by the parties, clerk and the court
and no default was ever entered or APP
piled for in any instance on account Of
a lack OF CerllUCdle 10 any pl6duluS.
"Affiant has. in the past five years
filed pleading for this defendant in this
court in over 20 law actions and ha
never attached a certificate as require
by the rule to any pleading, and yet NJ
attempt was ever made to enforce tn
rule
The suit is one in which Miss Thorn
seeks to recover judgment for damage
for alleged election from train between
this city and Bozeman year or tw
ago.
After tn complaint had been filed tn
defendant filed a demurrer, but tn
document did not have attached to it tn
certificate of Mr.. Wallace, for whicl
one of the rules of court provides, an
the result was that Miss Thorne's attor
ney secured for her judgment for tn
amount of damages claimed.
The matter was taken into the fedora
court at Helena and argued, but tn
court decided that the judgment shout
stand.
In presenting it to Judge Knowle
counsel for the defendant maintaine
that the clerk should not have filed tn
demurrer without the certificate; tina
so long as the latter did so and &C
copied the fee of $40 it was equal to a
appearance on the part of the 3efens'
The court held, however, that the cler
did right in entering the judgm mt
A motion to set aside the judgmer
will now be presented to the court. nc
tice to this effect having been given.