                                                    No. 14887
                                  IN THE SUPREME COURT OF THE STATE OF MONTANA




    STATE OF MONTANA, ex rel.,
    DAVID ALLEN ROSS.




    VIRGINIA MALLORY, JUSTICE
    OF THE PEACE, POLSON DISTRICT, LAKE
    COUNTY, MONTANA,




    Appeal from:         District Court of the Fourth Judicial District,
                         Honorable Jack L. Green, Judge presiding.
    Counsel of Record:
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       For P      & ~ t ~ ~ :

             Turnage -and McNeil, Polson, Montana
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       For Reepe&k&:

~            K. M. Bridenstine, Polson, Montana


                                                        Submitted:   September 19, 1979
                                                                     on briefs
                                                         Decided :
                                                                     2 ,   A
                                                                           =   1974
             jyy 2        .c;--


    Filed:
Mr. Justice John C. Sheehy delivered the Opinion of the
Court.

     Relator, David Allen Ross was charged with two traffic
offenses by citations issued on December 1, 1978.        Ross was
convicted of "reckless driving" and "leaving the scene of an
accident" on January 8, 1979 after a nonjury trial in the
Lake County Justice Court of Virginia Mallory, the appellant.
On this same date, an oral notice of appeal was given to the
Justice Court on behalf of Ross who posted an appeal bond as
ordered.
     On January 16, 1979, written notice of appeal addressed
to the Justice Court was filed on behalf of Ross, inadvertently
with the Clerk of the District Court.       The Clerk who was
newly elected, failed to forward the notice to the proper
court.   As a result, no written notice of intention to
appeal was filed with the Justice Court within the ten day
period following judgment as required by statute, nor was
the record of the proceedings of the Justice Court transferred
to the District Court.   The appeal was dismissed and the
bond ordered forfeited in Justice Court on April 6, 1979 by
Justice of the Peace Mallory.
     Ross applied to the District Court for a writ of mandate
on April 19, 1979, directing Mallory to set aside the order for
dismissal and to transmit the record and file to the District
Court.   A hearing was held on May 16, 1979 and on June 13, 1979
the District Court entered its findings and entered judgment
that a writ of mandate be issued.       Subsequently, a peremptory
writ of mandate was issued on June 21, 1979 commanding Mallory
to transmit the Justice Court records of the Ross proceedings
                         MA,*;.   k/
                                   ''
to the District Court.   E&ss      asserts on this appeal that
the District Court erred in issuing the writ of mandate.
     Section 46-17-311, MCA, states:
     " (1) All cases on appeal from justices'
         .
     . . courts must be tried anew in the
     district court . ..
     " (2) The defendant may appeal to the
     district court by giving written notice of
     his intention to appeal within 10 days
     after judgment.
     " (3) Within 30 days, the entire record
     of the justices! .    ..
                            court proceedings
     shall be transferred to the district court
     or the appeal shall be dismissed. It is
     the duty of the defendant to perfect the
     appeal. "
The statute is clear and expressly requires that "written"
notice of appeal be filed in Justice Court.   The duty to
perfect an appeal is also explicit and expressly directed to
be that of the defendant.
     In the present case, since written notice was not
provided to the appropriate court, Ross did not perfect his
appeal in the manner required by law and the Justice of the
Peace had no concomitant duty to transmit the files to the
District Court.   Consequently there existed no basis for writ
of mandate to be issued.


                                       Justice
We Concur:




         Just
