Conklin v. Cullen

25 Mont. 30 | Mont. | 1901

MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of the Court.

The respondent has moved for a dismissal of the appeal herein on the ground that the brief filed by appellant, besides being-defective in other respects, fails to comply with the -requirement of Subdivision “a” of Section 3 of Rule X of this Court, in that the abstract or statement of the case does not refer “to the page numbers in the transcript in such manner that the pleadings, evidence, orders and judgment may be easily found.” The motion must be sustained. The statement covers five printed pages, but there is nothing therein to indicate, even indirectly, where in the transcript the complaint, answer, findings, and judgment, or any of them, may be found, though a reference to them is necessary to an examination of the merits of the appeal. This Court is left to undertake the labor which counsel should have done, and to remedy the defects occasioned by his omissions. Appellant is thus convicted of a violation of the rule in question, and is subject to the penalty of having his appeal dismissed, Avhich is accordingly done. (Smith v. Denniff, 23 Mont. 65, 57 Pac. 557; McCleary v. Crowley, 22 Mont. 245, 56 Pac. 227; Rehberg v. Greiser, 24 Mont. 487, 63 Pac. 41.) This penalty is the more readily imposed because, though counsel for appellant has. had ample opportunity since the motion was filed to remedy the defects complained of, he has not seen fit to do so. (Rehberg v. Greiser, supra.)

Motion granted, without prejudice to any right of the appellant to take another appeal.