(Download) "Mcvay v. District Court" by Supreme Court of Montana # eBook PDF Kindle ePub Free
eBook details
- Title: Mcvay v. District Court
- Author : Supreme Court of Montana
- Release Date : January 13, 1953
- Genre: Law,Books,Professional & Technical,
- Pages : * pages
- Size : 65 KB
Description
1. Motions ? Words and Phrases "Motion." A "motion" is properly an application, made viva voce to a court or judge, for an order, and is not made by merely filing a written application with a district court clerk. 2. Motions ? Motion not an action. A "motion" is not an action, but simply an application for an order, and is not subject to general rules of pleading. 3. Motions ? Notice. Generally, a party interested in resisting relief sought by motion has right to notice thereof and opportunity to be heard in opposition thereto. 4. Motions ? No pleading to a motion required. No answer or other pleading to a motion is required, but party opposing motion is only required to overcome, if possible, by competent evidence or citation of authority, the case made by moving party. 5. Motions ? Pleading to motion superfluous. A motion to quash, dismiss, deny, or strike from files or records, an original motion, or a demurrer to such motion, is regarded as superfluous, frivolous, confusing and bad practice, as it ordinarily presents no question not open on hearing of original motion for decision. 6. Divorce ? Pleading to motion held improper. In a husbands divorce suit, defendants motion to quash plaintiffs duly authorized and notice motion to modify decree which modified decree granting defendant a divorce and partial custody of parties minor children by awarding their sole custody to defendant, with right of visitation by plaintiff, was irregular and improper practice, as every question raised by defendants motion could and should have been presented at time set by plaintiffs notice of motion for making and hearing of his original motion to modify decree. 7. Courts ? Obiter dictum rejected. A statement that proper practice is to strike an unauthorized motion - Page 383 from files in Supreme Courts opinion on affirmance of district courts order, granting defendants timely and duly authorized motion for change of venue and denying plaintiffs motion to strike papers filed on defendants motion, was improper as unnecessary to determination of any issue properly presented on appeal, and hence obiter dictum. 8. Judges ? Disqualification not affected by improper motion. Defendants motion to quash did not affect plaintiffs timely and proper affidavit of district judges disqualification, and mere filing of such affidavit ipso facto disqualified judge, so that all subsequent orders by him were void for want of jurisdiction, except as otherwise provided by statute.
 "Mcvay v. District Court" by Supreme Court of Montana # eBook PDF Kindle ePub Free){kind=link}