Difference between Civil and Criminal Cases?
Criminal and civil cases may be heard by a judge or a jury. If a trial is by judge, there is no jury and the judge makes the decision based on the testimony and evidence presented.
Criminal: In a criminal case a person called the defendant is charged with a violation of the law. The attorney representing the state or local government is called the prosecutor or County Attorney. In criminal cases the judge will inform the jury about the law, and the jury must decide if the defendant has broken that law. Criminal verdicts in Montana must be unanimous. In criminal cases, the prosecution must prove beyond a reasonable doubt that the defendant committed the crime. Prior to the criminal trial, the defendant will have appeared before the judge to plead guilty or not guilty to the criminal charges. This hearing before the judge is called an arraignment.
Civil: Civil cases involve disputes (usually about money) which the parties haven't been able to solve between themselves, and have turned to the court system to resolve. The person bringing the complaint in a civil suit is called the plaintiff. The one defending him or herself against the complaint is the defendant. Defendant must reside in Montana. In a civil case, the jury is asked to determine which side is favored by the preponderance of evidence. Civil jury decisions can be made by a two-thirds majority of jurors. A unanimous verdict is not required, as it is in a criminal trial. Justice Court has a monetary limitation of $15,000. If the amount in dispute is more than $15,000 the case must be filed in District Court.
Can Judges or clerks give advice?
Judges and clerks are prohibited from giving legal advice, though the clerks can answer procedural questions and provide copies of forms.
**Under Montana Law, you have the right to represent yourself, but along with that privilege, comes the obligation to know how to proceed. It is against the law for anyone who is not an attorney to give legal advice. Legal advice could be described as, but is not limited to how to proceed; what to file; offering interpretation of the rules; recommending a course of action; predicting a judicial officers' decision; and interpreting the meaning of effect of any Court Order or Judgment.
COURT EMPLOYEES ARE FORBIDDEN BY LAW FROM GIVING LEGAL ADVICE**
Introduction
A Civil Complaint in Justice Court initiates a legal action to recover monetary amounts up to $15,000.00 (not including attorneys’ fees and court costs) and/or for possession of real estate (eviction). Filing fees, service costs, attorney’s fees, and damages may be recoverable in a civil suit if listed in the complaint. Although civil cases are often filed by attorneys, members of the public who wish to represent themselves may file without attorneys. Corporations, LLPs, trusts, partnerships, or other legal entities must file through an attorney, though LLCs are able to represent themselves in certain circumstances. Justice Court does not have jurisdiction to determine title to real estate or defamation.
Common Terms
- Plaintiff(s): The person(s), company or other entity filing a Complaint against another person(s), company or other entity.
- Defendant(s): The person(s), company or other entity that the case is filed against.
- Judgment Debtor(s): The person(s), company or other entity who owes the money as ordered by the Court.
- Judgment Creditor(s): The person(s), company or other entity who should receive the money as ordered by the Court.
- Service of Process: The official means by which a Defendant is notified that a lawsuit has been filed against him/her and provided a copy of the complaint and a description of the person’s rights and obligations as a party to the case.
Civil Filing Fees
Complaint Filing Fee $50.00
Answer Filing Fee (per Defendant) $30.00
Civil Judgment Fee $20.00
Civil Appeal Fee $30.00 (there are additional types of fees/bonds associated with Civil Appeals in District Court)
*CIVIL APPEAL/UNDERTAKING BOND - If posted as CASH (must be cash or cashier's check) = The amount of the Judgment (excluding costs) plus $300.00. Example: If the judgment was in the amount of $3000.00 plus costs of $200.00 for a TOTAL JUDGMENT OF $3200.00 - moving party would post $3500.00 CASH.
*CIVIL APPEAL/UNDERTAKING BOND - If posted as an UNDERTAKING (BOND) must be equal to TWICE the amount of the judgment including costs. Example: Judgment is $3000.00 plus costs of $200.00 for a TOTAL JUDGMENT OF $3200.00, moving party would post an UNDERTAKING (BOND) in the amount of $6300.00
*CIVIL APPEAL/UNDERTAKING BOND - If the prevailing party files the appeal, party would post $100.00
*See Rule 6 and Rule 8 Uniform Municipal Court Rules of Appeal to District Court. (These rules apply as we are a court of record). Also See 25-1-401MCA 25-33-205MCA and Local Rule 18.
Jurisdiction Amount
The maximum you can collect through a judgment in justice court is $15,000.00. The value of the property you seek to recover cannot exceed $15,000.00. If you are seeking damages or personal property greater than the limitation you will have to file your action in the district court.
Type of Actions
The justice court has jurisdiction over (1) actions on a contract for recovery of money, (2) actions for damages for taking, detaining or injuring personal or real property, (3) actions to recover personal property, and (4) actions for damages for injury to the person. The value of the claim or property can not exceed $15,000.00.The justice court does not have jurisdiction when the action involves title to real property, false imprisonment, libel, slander, seduction, malicious prosecution, determination of paternity, or abduction.
Representation
You may file the complaint individually or through an attorney. If you are filing for a corporation, partnership, or other entity, the complaint must be filed through an attorney. Read the handout entitled “Representation in Justice Court” provided in this packet.
Self Representation
**Under Montana Law, you have the right to represent yourself, but along with that privilege, comes the obligation to know how to proceed. It is against the law for anyone who is not an attorney to give legal advice. Legal advice could be described as, but is not limited to how to proceed; what to file; offering interpretation of the rules; recommending a course of action; predicting a judicial officers' decision; and interpreting the meaning of effect of any Court Order or Judgment.
COURT EMPLOYEES ARE FORBIDDEN BY LAW FROM GIVING LEGAL ADVICE**
Minors
If the plaintiff, or the defendant, is under the age of 18 a guardian ad litem will need to be appointed before you can proceed with your complaint. See the clerk.
Evictions
If you are a landlord seeking possession of your rental property ask the clerk of court for the landlord/tenant packet. You may also find the forms under the civil information and forms section.
Service
The defendant must be served a copy of the complaint and summons. Service must be made within the state of Montana. Service outside the state of Montana may not be valid. If you are serving a corporation, partnership or person who resides outside the state of Montana, consult Rule 4 of the Justice and City Court Civil Rules. You can not serve the defendant yourself. You can serve the defendant by having a levying officer or the sheriff give the forms to the defendant. You can serve the defendant by having a person over the age of 18 give the forms to the defendant. Proof of service must be signed by the person making the service and filed with the clerk of the justice court. The original summons must be returned to the clerk of the justice court.
The clerk of the justice court maintains a list of qualified levying officers. You will be required to pay all fees of the levying officer or the sheriff. The fees for service varies, you should contact the levying officer or the sheriff for the fees they charge.
Answer
What happens after I file an Answer?
The court will set the matter for trial. Parties will be notified of the date by mail. All parties are responsible for keeping the court informed of their up-to-date contact information.
Answer with a Counterclaim
Counterclaims
A counterclaim is a request from the defendant against the plaintiff for damages involving the same transaction or occurrence as the complaint. The counterclaim MUST be served by the Sheriff or process server on the plaintiff(s). The plaintiff(s) must file a reply to the counterclaim, or the defendant would receive exactly what they requested without the plaintiff having a chance to contest it.
Reply to Counterclaim
This is an "answer" to the counterclaim, where the plaintiff explains which allegations in the counterclaim are admitted and which are denied. The plaintiff has 20 calendar days from the date the counterclaim is served to submit a reply to the court. The original should be filed with the court and a copy mailed to the defendant. After an answer is filed, the Court will generally set hearings (hearing on possession for evictions, pre-trial conference for general cases). A hearing on possession is where the judge decides if an eviction request will be granted. A pre-trial conference is hearing where the parties to meet with the judge to discuss scheduling of mediation and trial dates as well as to facilitate the exchange of discovery (pictures and documents that might be presented at a trial).
Default Judgment
You may request the clerk of court to enter a default judgment against the defendant if an answer is not filed within 20 days of service. You can not receive a default judgment for more than you asked for in your complaint. There is no judgment fee if you receive a default judgment.
Trial
Your complaint will not be heard until after the defendant has been served and filed an answer. You must attend the trial. Failure to attend the trial will result in dismissal of your complaint. Be sure to bring along any witnesses, books, papers, or other evidence which will help prove to the court that you are entitled to a money judgment, judgment for damages or possession to the property.
Trial Judgment
The judge will consider all the evidence presented at the trial and enter a judgment within 30 days. You will be required to pay a judgment fee of $20.00 to the clerk of court if the judgment is entered in your favor. If you do not pay the judgment fee an execution on the judgment or a transcript of judgment will not be issued by the clerk of court.
Collecting the Judgment
Read the handout entitled “How to Collect a Judgment” .
Appeal
A judgment may be appealed by any party to the district court within 30 days after entry of judgment. A notice of appeal must be filed with the justice court and a copy sent to the opposing party. You must pay a fee of $20 upon filing the notice of appeal. The judgment is stayed when the appeal fee is paid and the appeal bond is posted. Failure to file the appeal bond equal to the judgment and costs, or deposit money equal to the judgment and costs, within 10 days of filing the notice of appeal shall result in the dismissal of the appeal. The appeal bond, or money deposit, of a prevailing party is $100 and costs.
While the Justice Court clerks are pleased to assist you in any way possible, please understand that we are unable to provide legal advice. If you need legal advice or have questions, please contact an attorney.
Montanalawhelp.org Information
"LiveHelp" has launched. LiveHelp allows MontanaLawHelp.org visitors to ask for help finding online legal information and resources. Just click on the "LiveHelp" button on the right side of any page on MontanaLawHelp.org to begin. You will be connected with a MontanaLawHelp.org Web site specialist. Type your question into a box and click the Send button. Your question is sent immediately to the Web site specialist, and the Web site specialist quickly sends you the location of the information that answers your question.
MontanaLawHelp.org (click on do it yourself resources) is a project of the Montana Legal Services Association, the State Bar of Montana, the Montana Supreme Court Equal Justice Task Force, and Montana's Credit Unions. LiveHelp is sponsored by the Montana Legal Services Association under a grant from the Legal Services Corporation
Montana Legal Services Association: https://www.mtlsa.org/apply-for-services/
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Please feel free to call the clerk's office at 406-222-4170 with any questions.
