7 Mont. 443 | Mont. | 1888
This controversy arose in the United States land-office at Helena, by the application of Tandy and others for a patent to the land in dispute as a placer mining claim. This application was adverse to Fant, and under the United States statute, this suit was brought to determine the question whether or not the mineral patent should issue. The case was tried before the court without a jury, and on findings of fact and conclusions of law made by the court, judgment was rendered in favor of the plaintiff, from which this appeal was taken. The court, in rendering judgment, also delivered an oral opinion, which was taken down by the stenographer, written out, and filed among the papers of this case, and is made a part of the record herein, in accordance with the statute. There was a motion for a new trial made and overruled, from which order only this appeal is taken. There is nothing in the transcript to show where the statement begins, or what papers are included therein. One hundred and sixteen pages of the transcript are covered with questions and answers to and
This transcript is made out in a very slovenly manner, and entirely disregards rule 6, and should not have been filed by the clerk, as he is forbidden to file such a transcript by the ninth rule of this court. Some stress is laid by the appellant on the fact that the opinion of the
A very interesting question was considered in the court below, which is not before this court for consideration; and that is, at what time must it be determined whether or not the lands embraced within the Northern Pacific Railroad grant are mineral or agricultural in their character? or in other words, is this question open until the patent issues to the railroad company, or not? The district court held that the matter could be inquired into by an adverse claimant at any time prior to the issuance of the patent to the railroad company; but'as the decision of this question was in -favor of the appellant, it has not been brought here for review. No appeal from the judgment having been taken, and the evidence not being properly incorporated into the statement on motion for new trial,'there is nothing left for this court to consider.
In order to enable this court to consider eases tried in the district courts, and to reverse the judgment in case error is found therein, it is absolutely necessary that the
Judgment affirmed.