HOUSE BILL NO. 263

INTRODUCED BY D. WYATT

A BILL FOR AN ACT ENTITLED: "AN ACT GENERALLY REVISING SMALL CLAIMS COURT PROCEDURES; INCREASING FROM 5 DAYS TO 10 DAYS PRIOR TO A HEARING THE TIME IN WHICH A PLAINTIFF MUST SERVE A DEFENDANT; DECREASING FROM 10 DAYS TO 5 DAYS AFTER SERVICE THE TIME IN WHICH A DEFENDANT MAY REMOVE A CASE TO JUSTICE'S COURT; INCREASING THE AMOUNT OF A COUNTERCLAIM ALLOWED; ALLOWING A JUSTICE UP TO 10 DAYS TO ISSUE A DECISION AFTER SUBMISSION OF A CASE; AND AMENDING SECTIONS 25-35-603, 25-35-605, 25-35-606, AND 25-35-801, MCA."

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MONTANA:

Section 1. Section 25-35-603, MCA, is amended to read:

"25-35-603. Hearing date. The date for the appearance of the defendant to be set forth in the order must be determined by the justice of the peace or by the justice's clerk and may not be more than 40 or less than 10 days from the date of the order. Service of the order and a copy of the sworn complaint must be made upon the defendant not less than 10 days prior to the date set for the defendant's appearance by the order. If the order is not timely served, the plaintiff may have a new appearance date set by the justice of the peace or the justice's clerk and a new order issued and delivered to the sheriff, constable, or other process server. If necessary, repeated orders may be issued at any time within 1 year after the commencement of the action."

Section 2. Section 25-35-605, MCA, is amended to read:

"25-35-605. Removal to justice's court -- effect of failure to remove. (1) 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 with the justice within 5 days of the service of the complaint and order. From the time of filing of the notice of removal, the court to which the action is removed has and exercises the same jurisdiction over it as though the action had been originally commenced in justice's court.

(2) Upon the filing of a notice of removal, the court shall give notice of that fact to all other parties to the action. All rules and statutes governing proceedings originally commenced in justice's court, except rules of pleading but including rules and statutes governing appeals from justice's court, are applicable to proceedings removed to justice's court, except that a plaintiff is not required to replead unless the court so orders, and a fee may not be required of a plaintiff for the filing of a complaint if a fee for filing was paid in small claims court.

(3) Failure to request removal within the time provided in subsection (1) constitutes a waiver by the defendant of the defendant's right to a trial by jury and representation by an attorney, and the justice shall inform the defendant of that fact prior to commencement of the hearing."

Section 3. Section 25-35-606, MCA, is amended to read:

"25-35-606. Defendant's counterclaim. (1) The defendant may assert a counterclaim against the plaintiff arising out of the same transaction or occurrence that is the subject matter of the plaintiff's claim by appearing before the justice of the peace and executing a sworn small claims counterclaim in substantially the same form as set forth in subsection (3). The defendant shall cause the counterclaim to be served on the plaintiff not less than 72 hours before the date set for the hearing. Service must be made in the same manner in which service of the order of court/notice to defendant is made on the defendant. A defendant may not assert as a counterclaim any claim not arising out of the transaction or occurrence that is the subject matter of the plaintiff's claim.

(2) A counterclaim or setoff may not exceed $3,000. If a counterclaim or setoff is asserted in excess of $3,000, the jurisdiction of the small claims court over the plaintiff's claim is not defeated, but the court shall limit its determination of the counterclaim or setoff to the question of whether the plaintiff's claim is discharged by the counterclaim or setoff, leaving the defendant to prosecute the balance of the defendant's claim in an appropriate justice or district court action.

(3) The counterclaim must be made on a blank substantially in the following form:

IN THE SMALL CLAIMS DIVISION OF THE JUSTICE'S COURT OF ................. COUNTY, MONTANA

BEFORE ................., JUSTICE OF THE PEACE

..........

Plaintiff

vs.	Counterclaim

.....	Case No. .....

.....

Defendant(s)

.....

Comes now the defendant, being first duly sworn, upon oath, and alleges that defendant is entitled to counterclaim against the plaintiff in the plaintiff's pending action in the sum of $....., for ..... .......... which sum is now due, together with defendant's costs herein expended.

Dated this ...... day of .............., 20....

.....

Defendant

.....

Defendant's address

Subscribed and sworn to before me this ..... day of .........., 20....

.....

Justice of the peace

By: .....

Clerk, small claims division"

Section 4. Section 25-35-801, MCA, is amended to read:

"25-35-801. Entry of judgment. Within 10 days after the conclusion of the case tried to the court, the justice shall make findings and enter judgment."

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