20 Mont. 223 | Mont. | 1897
This is an appeal from the action of the District Court of Deer Lodge county in refusing to settle, sign, or allow the plaintiff’s statement of the case on motion for a new trial.
The appellant claims in his brief to be appealing from an order of the court refusing to so settle, sign, or allow the statement; but there is no order of the court refusing to settle and sign the statement. The record shows that the District Court simply declined to settle the statement for the reason given, namely, that the statement was not served in time. Our code does not allow an appeal from such action of the lower court. The' court made no order. It simply refused to make an order.
Haynes, in his work on New Trials and Appeals (Section 155), says: “If the judge refuse to settle any statement whatever, and the refusal is without sufficient cause, a settlement one way or the other may be compelled by mandamus. If he is willing to settle a statement, but declines to settle it in accordance with what the party claims are the facts, application should be made to the Supreme Court for leave to prove the exception.”
It seems in this case, from the record, that the court refused to settle any statement whatever. If the appellant has any remedy, it is not by appeal to this court. For these reasons the appeal is dismissed.
Dismissed.