34 Mont. 513 | Mont. | 1906
delivered the opinion of tbe court.
This action was brought to obtain a judgment quieting the title to the use of certain of the waters of Spokane creek in Lewis and Clark county. The right in controversy is based upon an appropriation of one hundred and eighty inches made by the defendant, which plaintiff claims he now owns under certain conveyances from defendant. One of these purports to convey a right to the use of one hundred and ten inches, statutory measurement, out of the headwaters of the stream and its upper tributaries, and was made directly to the plaintiff. As to the effect of this conveyance there is no controversy. The claim to-the remainder of the right rests upon the construction of a certain bond for a deed executed by defendant to one Rohde to-certain lands, together with one-half of the water and water right at the head of defendant’s ditch, of a deed by defendant to one Semenee who became the assignee of the bond, and a deed from Semenee to the plaintiff. The bond referred to was. executed prior to the date of the deed to the one hundred and ten inches, but the latter was taken without notice, and was first recorded. The issue tried was whether the defendant still owns, one-half of the interest remaining after the first deed was executed.
The plaintiff, pleading and relying upon a final judgment-rendered by the district court of Lewis and Clark county on
On appeal the presumption is that the action of the trial court is correct, and-in order to overturn its judgment or decision it is incumbent upon the appellant to show affirmatively, that error has been committed. (Rumney L. & C. Co. v. Detroit etc. C. Co., 19 Mont. 557, 49 Pac. 395.) If substantial error is made apparent, prejudice will be presumed unless the record shows affirmatively that such error is not prejudicial. (Parrin v. Montana C. Ry. Co., 22 Mont. 290, 56 Pac. 315.) If the error alleged is one of law, the record must show affirmatively the objectionable ruling, together with so much of the attendant proceedings as will make it apparent. If the ruling or decision does not belong to the class to which the statute reserves an exception (Code Civ. Proe., sec. 1151), the record must show an exception, properly reserved at the time by the appellant himself. If the 'error complained of be that the evidence is insufficient to sustain the findings or verdict, this court cannot, upon a review of the decision, declare it erroneous unless the record contains all
Section 1155 of the Code of Civil Procedure provides what the certificate of the judge attached to the bill of exceptions or statement shall contain. It does not authorize any other statement than that “the same (the bill) is allowed.” In State v. Shepphard, supra, it is said: “Where the bill of exceptions itself is relied on to show the insufficiency of the evidence, it should either set forth in express language that all the evidence, or the substance thereof, or so much thereof as is necessary to illustrate the point relied on, is all incorporated in the bill, or it should contain statements equivalent to such expressions, or it should show a whole connected narrative, so constructed that it clearly appears that all the material evidence, or the substance thereof, is .incorporated in the bill.” In another place in the opinion it is said, in substance, that it is sufficient if it appears from the certificate of the judge that the whole of the evidence is in the record. In view of what the- statute provides, we doubt the technical correctness of this statement, and if this question were an open one we should hold differently. Inasmuch, however, as it is frequently the practice to have the judge certify that the record contains the evidence, encouraged no doubt by the statement referred to, we shall not now say that such practice is bad. The better rule is that the statement or bill itself should contain recitals showing unequivocally the facts. This
In this ease we find no recital in the statement; nor does the certificate of the judge refer to the evidence. The narrative of the proceedings is not so connected as to enable us to say from an examination of it that it affirmatively appears that all, or the substance of all, the evidence is incorporated in the statement. For this reason the objection of respondent must be sustained.
The result is that the judgment and order are affirmed.
Affirmed.