Harding v. McLaughlin, 23 Mont. 334

Harding v. McLaughlin

23 Mont. 334 | Mont. | 1899

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

This is an appeal by the plaintiff from a judgment of non-suit entered in 1897 in ah action to recover the possession of personal property alleged to have been wrongfully taken and withheld by the defendants.

The transcript contains what is styled “a Statement on Appeal.” Since the 1st day of July, 1895, when the Code of Civil Procedure went into effect, the statutes of Montana no longer provide for or recognize a “statement on appeal” as a means whereby matters not part of the record proper may become parcel of the judgment roll; but, conceding that the mere name by which the paper is labeled is unimportant, and that it was intended as a bill of exceptions, we are nevertheless constrained to disregard it, for the reason that it is not authenticated. The judge who tried the cause refused to settle, allow, or sign the proposed bill; an application designed to be in conformity with section 1157 of the Code of Civil Procedure, and subdivision lé of Rule IY. of the rules of this Court (lá Pac. vi.), then in force, was made to, and granted by, the justices of this court, for leave to prove that the judge below had refused to allow the exceptions of the plaintiff in accordance with the facts; a referee took evidence on the matter, and reported findings, which were filed in the office of the clerk of the court below, and also with thp clerk of this court, —after which the plaintiff proceeded no further towards securing a settlement. The requirements of section 1157, supra, that the bill, when proved, must be certified by the chief justice as correct, and filed with the clerk of the court in which the action was tried, were not complied with in any respect. Certification by the chief justice (or in his absence by the senior associate justice), and the subsequent filing with'the clerk of the trial court, are essential to the making of the bill, for section 1157 further provides that, when so certified and filed, ‘ ‘it has the same force and effect as if settled by the judge who tried the cause.” Moreover, had the proposed bill been so certified by the chief justice and *336filed, its contents could not properly be examined, for the reason that the judge a quo refused to settle or allow it upon the ground (among others) that it was not served on the defendants within the time prescribed by section 1155 of the Code of Civil Procedure, and, for aught that appears to the contrary, the refusal was justified. The action was tried with a jury on the 22d day of April, 1897, and judgment was formally entered on the 9th day of the following June; the proposed bill of exceptions, designated as a “Statement on Appeal,” was served upon the defendants on the 10th day of July, 1897. To preserve by bill the exceptions taken- at a trial had with a jury, a draft of the bill must be served within 10 days, or such further time as may be allowed, after the entry of judgment. In this case more than 10 days elapsed between the entry of judgment and the service, and there is absolutely nothing in the report of the referee or elsewhere to show that the action of the judge in declining to settle the bill was not correct. If there was any enlargement of the time by stipulation of parties or otherwise, or a waiver on the part of the defendants of the right to object to the settlement because not duly served, the plaintiff, confronted as he was with the refusal of the judge, should have shown such fact. Again, the supposed bill must be disregarded for another reason: The rule declared in In re Plume, ante, 23 Mont 44, 57 Pac. 408, is in point upon this question, for it was there held that the remedy given by section 1157 and the rule of this Court does not apply to a mere refusal of the judge to settle any bill whatsoever, and it may be remarked in passing that this is all that was decided in that case, the determination of the question as to what is the proper remedy being unnecessary to a decision.

All the proceedings on the trial being eliminated, we have nothing before us except the pleadings, the order granting the motion for a nonsuit, and the judgment; the only error specified is the granting of the motion for a nonsuit, and this cannot be considered without reference to the evidence which was before the district court. The judgment is therefore affirmed.

Affirmed.