Opinion
No. 9081.
Decided May 4, 1951.
1. Criminal law — Jurisdiction. Where defendant was convicted in police court of Butte of selling intoxicating liquor to a minor, and he took and perfected timely appeal to district court for trial de novo, and cause was assigned to first department of district court, and thereafter jury term was held in that department, but neither city nor defendant requested that case be set for trial, and district court did not set case for trial, and, after dismissal of jury, district court, without notice to defendant, ordered that appeal be dismissed for want of prosecution and entered judgment against defendant's sureties, judgment of district court was in excess of jurisdiction and void. 2. Criminal law — Court acted in excess of jurisdiction. Where district court acted in excess of its jurisdiction in entering void order dismissing appeal by defendant from judgment of conviction in police court of city, certiorari would lie to Supreme Court to compel district court to vacate the order and reinstate the appeal.
Mr. William B. Freebourn, Butte, for relator.
Mr. Arnold H. Olsen, Atty. Gen., Mr. William H. Coldiron, Asst. Atty. Gen., for respondent.
Certiorari. Original proceeding. The relator Mike Healy was charged, tried and convicted in the police court of the City of Butte of the crime of selling intoxicating liquor to a minor and sentenced to pay a fine of $150.00, and in default of the payment thereof to be committed to the city jail, and he took and perfected timely appeal to the respondent district court where the cause was assigned to Department No. 1 thereof, presided over by the Honorable John B. McClernan. Thereafter a jury term was held in said department of such district court but neither the City of Butte nor the relator Mike Healy requested that the case be set for trial and the district court did not set nor attempt to set same for trial. Thereafter the jury called for such term was dismissed and subsequently the respondent district court and the respondent judge presiding therein made and entered sua sponte an ex parte order wherein it was ordered that said appeal be "dismissed for want of prosecution and judgment entered against the sureties pursuant to law."
No notice of such action of the respondent court and judge was [1] given to either the relator Mike Healy or his attorney, either before or after the making of the order, and on petition of relator filed in this court representing that said order was made without notice to relator and in violation and denial of his right to have the cause tried de novo upon the merits, and that the order is therefore unlawful, void and in excess of respondents' jurisdiction, this court issued a writ of certiorari directed to the respondent district court and presiding judge therein returnable on this date and respondents having certified the record and proceedings to this court and being represented by the Attorney General and relator being represented by counsel and the record and proceedings being fully reviewed, this court is of the opinion that under the facts and circumstances the order of dismissal directing that judgment be entered against the sureties on relator's bond is in excess of jurisdiction and void.
It Is Ordered that said order of the district court be vacated [2] and set aside and that relator's appeal be reinstated, and that it be placed upon the trial calendar of the respondent court to the end that it be set for trial and tried and that counsel for the City of Butte and counsel for relator be given due and timely notice of the setting in advance of the trial of such cause. It is so ordered.
THE HON.C.B. ELWELL, District Judge, sat in place of MR. JUSTICE FREEBOURN, who deemed himself disqualified.