2 Mont. 500 | Mont. | 1876
The respondent, by his motion, asks this court to strike from the transcript that part called a statement, and all portions thereof which do not properly constitute the judgment roll.
The part of this transcript entitled “ motion and statement for a new trial,” is nothing but a motion for a new trial. A statement under the statute, when applied to a motion for a new trial, refers to this evidence introduced on the trial. The evidence, which is made a part of the record, does not purport to have been used on the hearing of the motion for a new trial. By inference from the certificate of the judge attached to the motion for a new trial, it seems that this evidence was settled as a statement in the case for some purpose, which does not appear. The record does
If it was nsed on the motion for a new trial, that wotdd not make it a part of the bill of exceptions. TJnder our statutes it is contemplated that the statement of the evidence is properly a part of the bill of exceptions taken to the ruling of the court on the motion for a new trial, to be prepared and settled after the ruling upon said motion, and is not a part of the motion for a new trial. Sts. 8th Sess. 52, 53. This statute was adopted with the view of lessening the labors of attorneys in preparing motions for a new trial, and should be followed. This motion to strike from the transcript all parts of the same except the judgment roll embraces all the evidence set forth therein, and as this evidence does not purport to be any part of a bill of exceptions in the case, it must be sustained as to this. The striking out of the evidence makes other parts of the transcript, except the judgment roll, useless, and they must follow the evidence.
The motion is sustained.
The case was then heard on its merits.
E. W. & J. K. Toole, for appellant.
Despondent is bound by his warranties, and cannot deviate from them. The complaint does not set out the breaches on which the liability of appellant attaches, and is insufficient.
The affidavit of respondent and his clerk showed false swearing, and should have been admitted to the jury. False swearing, by the terms of the policy, avoided the policy. The affidavit showed that more gunpowder and coal oil were kept in respondent’s store than the policy allowed. This evidence was material.
The court erred in modifying an instruction relating to the effect of a false description of the insured premises. Despondent cannot avoid his representations by claiming that insurer knew their falsity. Bryce v. Lorillard Ins. Co., 55 N. Y. 240.
The record shows the loss was caused by the explosion of a coal oil lamp, used in violation of the policy.
ChüMAsero & Chadwioe, for respondent.
The instructions were not excepted to by any party, and were
This ease has been before us upon another appeal, and some of the facts appear in the opinion of the court, ante, 78. The appellant has not performed the duty of perfecting the transcript according to the statutes and rules of this court, and we have been compelled to strike the evidence from the record.
The appellant relies upon four grounds to reverse the order of the court below in overruling the motion for a new trial. It is contended that the complaint does not set out the breaches of the policy on which the liability of the appellant attaches. This court decided on the first appeal that the complaint states facts sufficient to constitute a cause of action. That ruling became the law of the case in its subsequent stages, and will not be reviewed again. Lick v. Diaz, 44 Cal. 479; Polack v. McGrath, 38 id. 666 ; Gates v. Salmon, 46 id. 361; Creighton v. Hershfield, ante, 169.
The second ground is that the court refused to allow an affidavit of the respondent to be identified and offered as evidence for the purpose of contradicting the respondent. The so-called affidavit was subscribed and sworn to before “ E. W. Carpenter, United States Commissioner.” Under the laws of the Territory this officer had no authority to take the affidavit, and the court could not receive it as testimony. Civ. Pr. Act, § 473 ; Cod. Sts. 617, § 1. The bill of exceptions in which this affidavit is embraced is dated November 30, 1872, and the second trial of the action took place in November, 1874. The transcript does not contain any stipulation relating to this subject. The counsel for the appellant insists that the same exception was saved at both trials, and that by an agreement of the attorneys for the parties, this bill is to be used on this hearing. This statement is denied by the counsel for the respondent. We cannot be governed by the understandings of attorneys which have not been reduced to writing. Orr v. Harding, 1 Mon. 387. The transcript shows that the exception was not taken at the proper time, and we cannot consider it.
The last point submitted by the appellant is, that the loss of the property by fire was caused by the act of the respondent in violating the conditions of the policy. The testimony is not before us, and cannot be examined for the purpose of determining this question of fact.
Judgment affirmed.