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Small Claims Court

What is Small Claims Court? This is a court designed especially for suits of $3,000 or less. Small claims court was established to provide a speedy remedy for small claims without having to hire a lawyer and without the necessity of a formal trial.

What Kinds of Cases are Heard in Small Claims Court? Almost any kind of case where people are suing for money or recovery of personal property can be heard in small claims court. Examples of cases typically heard in small claims court include a person who is suing on an unpaid bill or a tenant who sues to get the security deposit back from his landlord. The primary restriction on the kind of case that can be heard in small claims court is that the amount in controversy may not exceed $3,000.

Who Can Sue in Small Claims Court? Anyone can sue or be sued in small claims court. This includes individuals, partnerships, corporations, unions, associations, or any other kind of organization or entity, except the state or any agency of the state. The person who sues is called the plaintiff. The person who is being sued is called the defendant.

What Does it Cost to Sue in Small Claims Court? The clerk of the justice court will collect a filing fee of $20 from the plaintiff upon the filing of the sworn complaint. The defendant also pays a $15 filing fee when the defendant files an answer to the complaint.

How Does One Go About Suing Someone in Small Claims Court? Go to the small claims department of the justice court at the local courthouse. The clerk will provide the proper forms. The clerk can also provide assistance in preparing the proper forms and additional information on prosecuting and defending a claim in small claims court.

What Happens After the Complaint is Filed? Upon filing the complaint, the clerk will issue a notice to the defendant directing the defendant to appear and answer the complaint within ten (10) days from the time the complaint and the notice are served upon the defendant. The plaintiff cannot serve these papers. This must be done by an independent third party such as the sheriff, the constable or a private process server. Whoever serves these documents will charge a small fee plus mileage for this service.

What Does the Defendant Have to do Then? After a defendant is served with a copy of the complaint and an order to appear in court on the date of hearing, the defendant may do one of several things:

  1. Try to settle the claim with the plaintiff out of court.
  2. File an answer denying the plaintiff's claim and/or file a counterclaim against the plaintiff.
  3. Pay to the clerk of the small claims court, the amount of money that is being sought, plus what the plaintiff had to pay for filing fees and cost of service of the papers.
  4. Or, within ten (10) days after having been served with the complaint, file a notice of removal with the clerk of the small claims court, removing the case to justice court. Reasons for removing the case to justice court include wanting a jury trial or wanting an attorney's representation. If the case is not removed to justice court within ten (10) days, these rights may be waived.

 

If the defendant pays the claim, the clerk will send the money to the plaintiff.

If the defendant demands a jury trial, the clerk will notify the plaintiff by mail that the plaintiff must remove the matter to justice court within ten (10) days. If this happens, the plaintiff almost always needs to retain a lawyer. This case will then proceed as a regular lawsuit in justice court.

What Happens at a Hearing? The plaintiff and defendant must appear in court at the time set for the hearing. Any party that does not appear in court may lose by default. Both parties should bring any witnesses they have and any pictures, diagrams, account books, bills, receipts, contracts, notes, dishonored checks, or any other evidence that will be of help to the judge. Only evidence presented in court will be considered by the judge. If the case is complicated, it may help to give the judge a written summary of your position. The judge, after questioning the parties and their witnesses, and examining the evidence, will make a decision. The decision may be announced then or later.

What Happens After a Party Gets a Judgment For Money or Return of Property? The judge may give one of the parties a judgment. For example, the judgment may say that the defendant owes the plaintiff money or must return the plaintiff's personal property. But the court cannot guarantee that the plaintiff will be paid or that the plaintiff will get the personal property back. If the plaintiff does get a judgment and the defendant refuses to pay it, the plaintiff may be able to have the defendant's wages or his bank account garnished, have some of the defendant's personal property seized, or have the plaintiff's personal property recovered from the defendant by the sheriff. If the plaintiff does not know where the defendant banks or where the defendant keeps his property, the plaintiff may ask the court to require the defendant to come to court and answer under oath where the defendant has property that might be seized to pay the judgment. The sheriff will tell the plaintiff which property is exempt from execution. The plaintiff must pay a charge for having this property seized, but this charge can be recovered from the defendant. The plaintiff will also have to prepare and file additional legal papers with the court. The clerk of the small claims court can help with these papers.

What if the Plaintiff Loses? If the judge decides against the plaintiff, the plaintiff loses the fees paid to start the suit, and the plaintiff will have to pay the defendant the fee he or she paid the court when he or she asked for the trial. If both parties were represented by lawyers, the court may award reasonable attorney's fees. If the defendant has filed a counterclaim and wins, he or she may get money from the plaintiff. The plaintiff will have at least had the satisfaction of having a neutral third party-the judge-rule on the claim. Of course, the plaintiff should never file suit in any court unless the plaintiff feels that it is a valid claim.

Can a Small Claims Judgment be Appealed? Yes. The judgment of a small claims court may be appealed to the district court within ten (10) days of the judgment. An appeal may be made only if the losing party believes the small claims court applied the law incorrectly on the facts of the case. The district court judge cannot accept new evidence, but can only review the record of the small claims court and decide if the law was applied correctly. Attorney's fees may also be awarded to the prevailing party on appeal.

What Role do Lawyers Have in Small Claims Court? A lawyer can help a party get ready for a small claims court case by organizing the evidence and telling the party what to say in order to present a case. However, lawyers are only allowed to represent people in small claims court, i.e. appear with them in court, when all the parties are represented by attorneys. If all parties are represented by lawyers, the case may remain in small claims court. If only one party is represented by an attorney, the matter must be removed to justice court. If all parties are represented by an attorney in small claims court, or when only one party is represented by an attorney, and the matter is removed to justice court, the court may grant reasonable attorney's fees to the prevailing party. Pertinent Statutes Montana Code Annotated sections 25-35-501 to 25-35-807 govern small claims court procedures.

Last updated January 2003


This information is intended to inform you about Montana law generally. It is not intended as advice. You are encouraged to speak to an attorney regarding the specifics of your situation.


Lawyer Referral & Information Service. If you need legal assistance and do not know an attorney, call the Montana Lawyer Referral & Information Service. You will be referred to a lawyer appropriate to your location and problem. Call 406-449-6577.

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www.montanabar.org
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