105 P. 224 | Mont. | 1909
delivered the opinion of the court.
During the month of May, 1909, there was tried in the district court of Silver Bow county, and in that department over which
In the view w.e take, it is wholly immaterial that notices for the several hearings upon the settlement of the proposed bill were given by counsel for Girard, and the objections made by Mc-Tlatton on August 7 to the notice given by Girard on July 31 were therefore not of any avail, and Judge McClernan must have acted upon the objection made by counsel for MeHatton on July 30. Recalling, then, that the proposed bill was served on July 8, that the amendments were served on July 17, that the proposed bill and amendments were delivered.to the judge by Girard on July 24, and that July 30 was the first day upon which settlement was sought, the full import of MeHatton’s objection to a settlement on that day becomes apparent. The objection is that the proposed bill and amendments were not, within ten days after the amendments were served, presented by Girard to the judge for settlement upon five days’ notice to MeHatton. This objection was sustained, and evidently upon the authority of Burns v. Napton, 26 Mont. 360, 68 Pac. 17.
Burns v. Napton was an original proceeding in this court, by Burns to compel Judge Napton to settle a bill of exceptions in the case of Burns v. Kelly, in which latter case Kelly had prevailed. On June 3 Burns had prepared and served a proposed bill of exceptions, and on June 4 had delivered it to the clerk of the court. On June 11, Kelly proposed and served amendments, which were not accepted. On June 25 Burns gave notice that the proposed bill and amendments would be presented for settlement on July 1. It did not appear that Burns, the moving party, ever delivered or presented the amendments to the court, judge or clerk, and in disposing of the matter this court said: “In the case at bar the plaintiff neither presented the proposed bill and amendments to the judge (on notice or without notice) nor delivered them to the clerk within ten days after June 11, which was the day on which the amendments were
In the Code of Civil Procedure of 1895, the subject “exceptions” is treated in sections 1150-1158, inclusive, and in subdivision 2 of section 1173. Section 1155 provides: “When a party desires to have exceptions taken at a trial settled in a bill of exceptions, he may * * * prepare a draft of a bill, and serve the same, or a copy thereof, upon the adverse party. * * * Within ten days after such service the adverse party
It is conceded in the brief of counsel, and is perfectly apparent from the papers before us, that counsel for Girard proceeded under section 6788, Revised Codes (sec. 1155, Code Civ. Proc., 1895), and under the provisions of that section he could fully comply with the law if, within ten days after the amendments were served, he either (1) presented the proposed bill and amendments to the judge, upon five days’ notice to the adverse party, or (2) delivered them to the clerk, or (3) delivered them to the judge. He chose the third alternative, but was fully within the law.
The provision of the law authorizing the moving party to present the proposed bill and amendments to the judge first appears in the Code of Civil Procedure of 1895, and under that
In the present instance, then, the proposed bill and amendments having been delivered to the judge within the time limited by statute, it became the duty of the judge to settle and sign the bill at that time or at such future time as he might designate; and having thereafter designated September 4, and then continued the hearing until September 7, he should then have settled the bill by making it conform to the truth, and should then have signed and allowed the same. In so far as the decision in Burns v. Napton is contrary to the views herein expressed, that decision is modified.
It is ordered that a peremptory writ of mandate issue, directing Judge McClernan to settle the proposed bill of exceptions and to sign and allow the same.
Writ issued.