State Ex Rel. Taylor v. Carey , 74 Mont. 39 ( 1925 )

This is an appeal from a judgment of the district court of Silver Bow county, entered on February 7, 1925, dismissing the relator's application for a writ of prohibition to restrain the respondents from proceeding further in a cause in the justice's court of Silver Bow township, wherein Frank M. Hickman was plaintiff and L.E. Taylor, the relator herein, was defendant.

Although the justice's court of Silver Bow township was not specifically named as a respondent in this proceeding, counsel in their briefs have treated the case as though it were, and we shall so consider it in order to make final disposition of the controversy.

In the relator's petition it is disclosed that Frank M. Hickman brought an action against him in the above-named justice's court on May 3, 1924, to recover the sum of $295.50. A writ of attachment was duly issued in the action, and $124.50, belonging to the defendant, in the possession of Sweet Bros., Inc., was levied upon. Service of summons in the action was made by publication. The defendant did not appear therein, and on July 5, 1924, a judgment was duly rendered in favor of the plaintiff. On this judgment an execution was issued, the money theretofore levied upon under the writ of attachment taken, and turned over to the plaintiff in partial satisfaction of his claim. Thereafter, on December 15, 1924, the plaintiff in the action had a so-called alias summons issued therein, returnable on December 29, 1924. On December 27, 1924, the defendant appeared specially in the action, objected to the jurisdiction of the court, and moved that the so-called alias summons be quashed on the ground: "That the jurisdiction of the said court was fully and completely exhausted on the fifth day of July, 1924; that thereafter the said court had no jurisdiction in the said matter, either as to the person of the defendant, or the subject matter of said cause, and had no power * * * to further proceed in the said cause except for the enforcement of said judgment." The objection to the jurisdiction of the court and motion to quash were set for hearing on December 29, 1924, and, after having been argued were overruled.

In the relator's petition the above facts were set forth in detail, and copies of all the pleadings and proceedings attached thereto as exhibits. The petition then alleges that, unless the respondents are restrained from doing so, they will proceed with the hearing and determination of said cause and enter a second judgment therein, that such further proceedings will be without jurisdiction or authority, and prays that a writ of prohibition issue restraining further proceedings in the said cause except such as may be necessary for the enforcement of said judgment on July 5, 1924.

Upon the filing of this petition an alternative writ of prohibition was issued as prayed for, returnable on January 10, 1925. On the return day the respondents appeared and filed a motion to quash the writ on the ground that the petition did not state facts sufficient to entitle the relator to the relief prayed for, or to any other relief. This motion, having been submitted to the court, was sustained, and on February 7, 1925, a judgment was duly rendered and entered dismissing the petition at relator's costs. This is the judgment from which the relator has appealed.

The judgment entered in the justice's court on July 5, 1924, was a final determination of the rights of the parties in the action. Since service of the summons had been made by publication, the only relief which the plaintiff could demand in the action was to have a judgment under which the money theretofore levied upon under the writ of attachment might be taken under execution and applied toward the satisfaction of his claim.

When a judgment has been once rendered, the court loses[1] jurisdiction over the subject matter, other than to see that the proper entry thereof is made and that the rights determined and fixed by it are properly enforced. (State ex rel.McHatton v. District Court, 55 Mont. 324, 176 P. 608.) When the plaintiff, by virtue of the execution issued in the action, received and applied to his claim the full amount of the money which had been levied upon under the writ of attachment, his rights under the judgment had been properly enforced. Thus all the functions of the justice's court in connection with said action had been fully performed, and it had no further jurisdiction therein for any purpose.

After a judgment has been rendered and entered in an action[2] where service of the summons has been made by publication, the court thereafter has no authority to issue an alias summons and upon personal service of the same to proceed to another trial and enter another judgment therein.

Relator's petition states facts sufficient to entitle him to the relief demanded, and the court erred in sustaining the motion to quash the alternative writ.

The judgment is reversed and the cause remanded to the district court, with directions to overrule respondent's motion to quash the alternative writ of prohibition.

Reversed and remanded.

ASSOCIATE JUSTICES HOLLOWAY, GALEN and MATTHEWS concur.

MR. CHIEF JUSTICE CALLAWAY, being absent on account of illness, did not hear the argument and takes no part in the foregoing decision.