Opinion
No. 6,994.
Decided May 7, 1932.
Original application for alternative writ of prohibition directed to the district court of Lewis and Clark county to restrain it from proceeding further in the cause of Helena Adjustment Co., plaintiff, against William Traynor, defendant, pending in said court on appeal from a justice court, on the grounds that an insufficient notice of appeal had been served and filed, and that the undertaking on appeal filed was of no effect, in that it had been signed by two attorneys without an order of court permitting them to sign as sureties, as provided by section 8991, Revised Codes 1921. Application denied.
Mr. C.A. Spaulding, for Relator.
Decided May 7, 1932.
The application for an alternative writ of prohibition is denied. The notice of appeal, while not commended as a model, is not so defective as to fail to give the district court jurisdiction. It directed the attention of the adverse party to the fact that the judgment will be the subject of review in the appellate court. ( State ex rel. Rosenstein v. District Court, 41 Mont. 100, 21 Ann. Cas. 1307, 108 P. 580. And see In re Day, 18 Wn. 359, 51 P. 474.)
The weight of authority is that a statute providing that an attorney shall not become surety for his client is merely directory, and that the obligation, when once entered into, is not void, although the violation of the ruling statute may subject the attorney to punishment for contempt. In other words, the obligation is simply defective. (Note to State v. Babin, 18 Ann. Cas., p. 838; DeJarnett v. Marquez, 127 Cal. 558, 78 Am. St. Rep. 90, 60 P. 45.)
Statutes must be liberally construed to maintain the right of appeal. ( Morin v. Wells, 30 Mont. 76, 75 P. 688; Krause v. Insurance Co. of North America, 73 Mont. 169, 235 P. 406; State ex rel. Stevens v. Keaster, 82 Mont. 126, 266 P. 387.)