Raymond v. Thexton

7 Mont. 299 | Mont. | 1888

Galbraith, J.

This is a motion to strike from the record certain portions of the transcript, on an appeal from an order overruling a motion for a new trial. The first of these alleged .objectionable portions of the transcript are the original complaint and the demurrer thereto. Before any action was had by the court upon the demurrer to the original complaint, the respondent filed án amended complaint for substantially the same cause of action, and dismissing as to one of the defendants, mentioned in the original complaint as executor. This was a virtual confession of the demurrer. No objection was made to the filing of the amended complaint, and it was a substitute for and superseded the original. This amended complaint was practically an abandonment of the allegations contained in the original, which could not be considered for any further purposes in the action. The demurrer to the original complaint was never acted upon by the court. Therefore both the original complaint and the demurrer thereto are wholly useless and immaterial portions of the record, and it should not be encumbered thereby. Another portion of the transcript alleged to be objectionable is the deposition of one Ramsey, and also what appears to be a literal copy of the stenographer’s notes taken upon the trial. This constitutes all the testimony in the case, and it, and it alone, is contained in what purports to be a “ statement,” and is certified to by the attorneys for the respondent to be correct. It does not purport, even on its face, to be a statement on motion for a new trial, but simply a “ statement.” This so-called “ statement ” does not comply with the provision of the law which requires that statements, upon motions for new trials, shall be signed by the judge, “ with his certificate that the same is allowed.” Comp. Stats., div. 1, sec. 298. In this respect the statute in relation to statements on motion for a new trial differs from that in relation to statements of the case on appeals in general. In the latter case, the statement, in place of its being required to be certified to and signed by the judge, may be agreed to by the parties or their attorneys, and certified to by them as being correct. But in relation to statements on motion for a new trial, there is no provision for such agreement, and the requirement that it be signed and allowed by the judge appears to be imperative. Where there is a general rule of law assuming to be applicable to all cases, and there exists also a special rule assuming to be applicable to a particular case, which might otherwise be included within the general rule, the special rule will prevail. This is substantially our statute upon this subject. Section 631, division 1, Compiled Statutes, provides that “ when a general and particular provision are inconsistent, the latter is paramount to the former.” Section 298, above referred to, is an exact copy of the statute of California in relation to the same subject; and the supreme court of that state has held that it must be literally complied with. Schreiber v. Whitney, 60 Cal. 431; Adams v. Dohrmann, 63 Cal. 417. The statement should have been certified to and signed by the judge. Again, this is not a statement on motion for a new trial, such as is contemplated by the statute. The above section (298) requires that the statement shall contain a specification of “ the particulars in which ” the “ evidence is alleged to be ” insufficient, or any “ particular error ” in law upon which the appellants “ will rely.” This evidently refers to cases where the testimony is alleged to be insufficient to justify the verdict or decision, or where it is claimed that errors of law occurred at the trial, as designated in subdivisions 6 and 7, section 296, division 1, Compiled Statutes. It contains no specification of errors whatsoever, but is simply the undigested, unarranged mass of testimony taken in the case. The specification of errors “ forms [to use the language of a former decision of this court] the frame-work of the statement”; it is the basis of the edifice; “and the evidence is only produced to strengthen and support the structure and make it complete.” Griswold v. Boley, 1 Mont. 545. In this case, Wade, C. J., delivering the opinion of the court, says: “The motion must designate and specify with exactness and precision the grounds upon which the motion will be made, and these specifications must be carried into the statement, and form a part thereof; and only so much of the evidence shall be reproduced as tends to explain the specification of error.” Without the specifications of error there is no statement on a motion for a new trial, such as is contemplated by the statute, when the motion is based upon subdivisions 6 and 7, section 296, Code of Civil Procedure (Comp. Stats.). It will be observed that the above section in relation to new trials uses the terms “ specify” when referring to the statement only. The notice of motion is only required to designate “ the grounds upon which the motion will be made.” It is the statement, therefore, which should contain the specifications which are referred to by this same section, when it provides that “ if no such specification be made, the statement shall be disregarded on the hearing of the motion.” But if required to be disregarded upon the hearing of the motion in the district court, it certainly cannot be regarded here. Graham v. Stewart, 68 Cal. 374; Vilhac v. Biven, 28 Cal. 410; Ferrer v. Insurance Co., 47 Cal. 416; Reamer v. Nesmith, 34 Cal. 624; Walls v. Preston, 25 Cal. 60; Spencer v. Long, 39 Cal. 700; Butterfield v. Railroad Co., 37 Cal. 381.

Again, this so-called statement is claimed to be objectionable in that it is simply a literal copy of a deposition taken upon interrogatories, and also a literal copy of the stenographer’s notes taken upon the trial, reduced to manuscript. These are not even reduced to the narrative form, but are verbatim copies of the questions and answers. It occupies over eighty pages (type-writing) of the transcript. We have had occasion before to advert to this method of stating the testimony, and to say that “ it is not such a record as should be filed in this court.” Railway Co. v. Warren, 6 Mont. 275. Such a statement of testimony must necessarily contain much immaterial, useless, and redundant matter. The section of the statute in relation to statements on motions for new trials, above referred to, requires that all useless and redundant matter shall be stricken out. Such a statement of the testimony as appears in this case, where it is all expressed in the interrogative form, is in itself objectionable. It is, upon, its face, repugnant to the statute. It compels this court to perform that which is the duty of counsel, — to search through a mass of testimony, much of which is obviously useless and redundant, to discover what is pertinent and material. We have heretofore been lenient in the consideration of records of this character, but hereafter they will be disregarded.

The exceptions contained in the so-called statement cannot be considered, for the reason that they are not settled and signed by the judge. Section 1981 of the act in relation to stenographers (div. 5, Comp. Stats.) evidently contemplates that the stenographer’s notes of the exception are not to be the bill of exceptions, but only become so when settled and signed by the judge.

The notice of intention to move for a new trial, and the affidavits in support of the motion, are not certified to or in any way identified as having been used upon the hearing of the motion for a new trial, as required by section 438, division 1, Compiled Statutes, and must be disregarded. The instructions contained in the transcript are not properly authenticated, and cannot be considered.

What purports to be a bill of exceptions signed by counsel for the appellants is in no way contemplated by our Code of Civil Procedure. Bills of exceptions must be settled and signed by the judge. It is probably intended as a specification of errors, apd if so, should be contained in a statement on motion for a new trial or statement on appeal. There is no statement on appeal, and it is not contained in the so-called “ statement,” no doubt intended as a statement on a motion for a new trial, which, as we have seen, must be disregarded. If intended as the common-law assignment of error, it is not a part of the transcript. For the foregoing reasons,' the motion to strike from the transcript the portions thereof designated in the motion must be sustained

Motion sustained.

McLeary, J., and Bach, J., concur.