Territory of Montana v. Morehouse , 8 Mont. 310 ( 1889 )

McConnell, C„ J.

Respondent was the prosecuting witness in a criminal case, instituted before a justice of the peace, against one Isaac Morehouse. The defendant in that case was discharged, and the respondent, Mary Morehouse, adjudged to pay the costs, upon the ground that the prosecution was malicious and without probable cause. From this order, which was made on the twenty-eighth day of January, 1888, respondent appealed to the District Court on the third day of February following. No notice was given of an intention to appeal at the time the order was made. In the District Court, the county attorney moved to dismiss the appeal, for the want of such notice. The court overruled this motion, and the Territory appealed from the order overruling said motion. Section 530 of the Criminal Practice Act provides, in substance, that where a court or jury find that there was no probable cause for commencing the prosecution, or that it was malicious, and the court taxes the costs against the prosecutor, he may appeal to the District Court, wherq the question of malice or want of probable cause shall be tried anew.. This has never been done. But the case is here upon an appeal from the order of the District Court refusing to dismiss the appeal from the Justice’s Court. Is this an appealable order? We think not. Subsection 2 of section 444 of the Code of Civil Procedure provides that an appeal may be taken from the District Court to the Supreme Court in the following cases, to wit: “From an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order granting or refusing to dissolve an attachment; from an order changing or refusing to change the place of trial; from any judicial order made after final judgment; and from such interlocutory judgment in actions for partition as determines the rights and Interests of the respective parties, and directs partition to be made.” The order appealed from in this case is not embraced in this statute. This court, then, has no jurisdiction to hear it, and dismisses the appeal at the cost of the appellant.

Appeal dismissed.

Liddell, J., and Bach, J., concur in the result.