4 Mont. 8 | Mont. | 1881
This is an appeal from a judgment directed to be entered by the court in pursuance of its
An exception is designated by the statute as being “an objection taken on the trial to a decision upon a matter of law at any time from the calling of the action for trial to the rendering of the verdict or decision.” Sec. 279 of the Code of Civil Procedure. Section 291 of the same act also provides what papers shall constitute the judgment roll, and specifies among them, “all bills of exception taken and filed in said action.”
Section 282 of the Code of Civil Procedure requires that “the objections shall be stated with so much of the evidence or other matter as is necessary to explain it.” Section 281 requires that “the point of the exception shall be particularly stated, . . . and may be delivered in writing to the judge; . . . when delivered in writing, . . . it shall be made conformable to the truth, or be at the time corrected until it be made so conformable.”
Prom these sections we must conclude that the particular facts, whether evidence or other matter, upon which the court rules, are intended to be presented in the bill of ■exceptions. It is apparent that it is principally for this reason that it is made the duty of the court to settle the exception, or, in the language of the statute, to correct it when delivered in writing, until “it shall be made conformable to the truth.” That the Code of Civil Procedure intends that the bill of exceptions shall contain the evidence or other matter upon which the alleged objec
The above language is quoted as being expressive of our own view in relation to our practice on appeal. It. will be observed that the above bill of exceptions does not contain, nor is it stated with, any evidence or other matter contained in the transcript. It does not refer in any manner to any such evidence or matter. It does not appear from the bill of exceptions, or even from the transcript, that the evidence which the transcript contains was all the evidence upon which the court ruled, or that it was settled by the judge, or that both parties had the same opportunity for securing a correct presentation or took part in the settlement thereof. We must therefore conclude that the evidence set forth in the-transcript is not any part of the bill of exceptions, and therefore no part of the judgment roll. The transcript does not show any compliance with, or attempt to comply with, section 119 of • the Code of Civil Procedure, in relation to statements on appeal. There is, therefore, no such statement. If, therefore, the appellants rely upon their bill of exception, the evidence cannot be considered in connection therewith, for it is not any part of the judgment roll. If they rely upon the other position taken in their brief, that the final decision in the case is deemed
It will be seen by reference to section 9 of said act, containing the above language, that the sentence in which the same appears concludes with the additional language, “under such regulations as may be prescribed by law.”
The same instrument also provides for a legislative assembly. The words, “such regulations as may be prescribed by law,” refer to regulations to be made by the legislative assembly of the territory. Under this provision the legislative assembly may fix the time and prescribe the methods by which appeals may be taken, so long as such regulations do not amount to a denial of the
It is also contended, by respondents, that a motion for a new trial was necessary, and that therefore the evidence should have been presented in a statement on such a motion. Section 284 of the Code of Civil Procedure defines a new trial as “ a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court or referee. ” It contemplates, therefore, a case in which evidence has been submitted to, and has been passed upon by, the proper tribunal provided by law to try an issue of fact. By section 241 of the Code of Civil Procedure, “the trial of an issue of fact must be by a jury, except in actions which involve the settlement of accounts, unless waived by the parties.” “A judgment of non-suit may be entered,” under the fifth subdivision of sec. 234 of the said act, “by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for a jury.” The jury, therefore, which under the law is the tribunal chosen to try the cause, is prevented therefrom by the action of the court, not acting as having authority to try the issue, but by reason of its general powers as a court to try matters of law, as well as by the express provision of said subdivision of sec. 234. There never was, therefore, a trial of the issue by the proper tribunal, and therefore a motion for a new trial is not, in such a case, contemplated by the code. There never was a trial by a jury because, in the judgment of the court, “the plaintiff failed to prove a case for the jury.” There was not a trial by the court because a jury was not waived, but was the tribunal chosen to try the issue. It was, therefore, by its
The motion for a non-suit under the subdivision of section 234, and the demurrer to evidence, if not precisely similar, bear a close analogy. “ A demurrer to evidence is analogous to a demurrer in pleading.” Same reference. We are therefore to conclude that the action of the court in granting a non-suit, upon the ground that the plaintiff has failed to prove a sufficient case for a jury, is as much a decision upon a matter of law as its action in sustaining a demurrer to a pleading. Such a decision, therefore, does not come within the meaning of trial as defined by the code, and such a motion, therefore, could not be properly made as part of the proceeding necessary to present this case for review upon the evidence already in the case. It is desirable that a uniform practice should be enforced. The statute has provided such a method, adapted to the different kinds of judicial proceedings. The only practical mode of securing uniformity in the practice is by requiring a strict adherence to these methods. Eor the purpose of aiding in the furtherance of this object, we will now say that, in our opinion, the method to be pursued in bringing up the evidence, in such cases as the one at bar, for revision, is by statement upon appeal. A statement on motion for
The judgment is affirmed, with costs.