Credit Bureau v. Ostlie , 2000 MT 73N ( 2000 )

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No. 99-577
IN THE SUPREME COURT OF THE STATE OF MONTANA
2000 MT 73N,
CREDIT BUREAU OF MISSOULA, INC.,
Plaintiff and Respondent,
v.
JERRY OSTLIE, a/k/a JERRY SILVER,
d/b/a SILVER AUTO,
Defendant and Appellant.
APPEAL FROM: District Court of the Fourth Judicial District,
In and for the County of Missola,
Honorable John W. Larson, Judge Presiding
COUNSEL OF RECORD:
For Appellant:
Bruce L. Hussey, Missoula, Montana:
For Respondent:
Elizabeth A. Ries-Simpson, CBM Collections, Inc., Missoula, Montana
Submitted on Briefs: March 2, 2000
Decided: March 22, 2000
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Filed:
__________________________________________
Clerk
Chief Justice J. A. Turnage delivered the Opinion of the Court.
¶1.Pursuant to Section I, Paragraph 3(c), Montana Supreme Court 1996 Internal Operating
Rules, the following decision shall not be cited as precedent but shall be filed as a public
document with the Clerk of the Supreme Court and shall be reported by case title,
Supreme Court cause number and result to the State Reporter Publishing Company and to
West Group in the quarterly table of noncitable cases issued by this Court.
¶2.Jerry Ostlie appeals from an order of the Fourth Judicial District Court, Missoula
County, denying his request for a writ of review pursuant to § 25-33-803, MCA, and
remanding this case to the Missoula County Justice Court. We affirm.
¶3.The issues are whether the District Court should have granted review because (1)
following entry of judgment, the Justice Court allowed the case caption to be amended to
correctly reflect the defendant's name; (2) the case was transferred to Justice Court from
small claims court at the plaintiff's request; and (3) the claim against defendant was
assigned from the original plaintiff to Credit Bureau of Missoula, Inc. Because all three
issues involve questions of law, our standard of review is whether the District Court was
correct. Steer, Inc. v. Department of Revenue (1990), 245 Mont. 470, 474-75, 803 P.2d
601, 603.
¶4.Ostlie's first argument is that the Justice Court acted outside its authority in allowing
the case caption to be amended, after judgment had been entered, by adding Ostlie's true
name to the caption in addition to his assumed name of Jerry Silver and his business name
of Silver Auto. Rule 22(b), M.J.C.C.R.Civ.P., allows a justice court to correct clerical
mistakes or errors arising from oversight or omission in pleadings at any time, on the
court's own initiative or upon motion and notice. Ostlie is not arguing any failure to give
him notice of this action. We conclude that the Justice Court had the authority to amend
the judgment caption in order to correctly name Ostlie as the defendant.
¶5.Ostlie next contends that no authority exists to allow a plaintiff to remove a case from
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small claims court to justice court. He points out that § 25-35-605(1), MCA, provides that
"Any action commenced in small claims court may be removed to justice's court by a
defendant upon the filing of a notice of removal . . . . " (Emphasis added.) This case was
removed from small claims court to justice court at Credit Bureau's request, following the
entry of default judgment and assignment of that judgment from the original plaintiff to
Credit Bureau.
¶6.In response, Credit Bureau correctly notes that under § 25-35-807, MCA, proceedings
to collect or enforce a small claims court judgment "are governed by the laws relating to
execution upon justice's court judgments." Therefore, if this matter was transferred back to
small claims court from justice court, the judgment would still be governed by the same
execution laws. In addition, because the Missoula County Justice of the Peace also serves
as the judge in the Missoula County Small Claims Court, the case would remain under the
jurisdiction of the same justice of the peace. We conclude that no effective relief can be
granted as to this issue, rendering it moot. See Turner v. Mountain Engineering and
Const., Inc. (1996), 276 Mont. 55, 59, 915 P.2d 799, 802.
¶7.The final issue in this appeal is whether the District Court erred in upholding the
assignment of a small claims court judgment. Ostlie cites § 25-35-505(5), MCA, which
provides that no party may file an assigned claim in small claims court. He also relies
upon language in a pamphlet distributed by the Montana Attorney General's office.
¶8.The statute cited by Ostlie prohibits the filing of an assigned claim in small claims
court, but it does not prohibit the transfer of a judgment by an assignee judgment creditor
from small claims court to justice court. While the language used in the Montana Attorney
General's office pamphlet may appear misleading, it is not controlling authority. We hold
that the transfer of a judgment from small claims court to justice court so as not to run
afoul of the rules regarding representation of parties by attorneys, as was the case here, is
within the scope of the court's authority to exercise its jurisdiction under §§ 3-1-111 and -
113, MCA.
¶9.We affirm the judgment of the District Court.
/S/ J. A. TURNAGE
We concur:
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/S/ KARLA M. GRAY
/S/ WILLIAM E. HUNT, SR.
/S/ JIM REGNIER
Justice James C. Nelson specially concurs.
¶10. I concur with our opinion except as to the discussion in ¶ 4. I am not persuaded from
our analysis that a trial court has authority to amend the caption of a judgment to name a
defendant, other than the defendant named in the summons and complaint, merely under
the guise of correcting a "clerical mistake." Arguably, this approach runs afoul of our
decision in Martin & Associates v. Don's Westland Bulk (1994), 267 Mont. 464, 884 P.2d
795. On the other hand, the result of our decision might be justified under the theory of the
dissent in Martin. See Martin, 267 Mont. at 470-73, 884 P.2d at 798-800 (Trieweiler, J.,
dissenting).
¶11. In any event, since the appellant did not argue any persuasive authority or theory in
support of his position and, this being a non-citable opinion, I am reluctant to devote the
time and effort necessary to do the research and write the analysis that might have been
advanced. Rule 23(a)(4), M.R.App.P.
/S/ JAMES C. NELSON
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