169 P. 49 | Mont. | 1917
Lead Opinion
a Judge of the First Judicial District, sitting in place of the Chief Justice, delivered the opinion of the court.
This is an appeal from the judgment in favor of the plaintiff and from an order overruling defendant’s motion for a new
The notice of intention to move for a new trial specifies as the grounds thereof:- (a) Insufficiency of the evidence; (b) that the verdict is against law; (c) errors in law occurring at the trial, etc. The errors assigned on this appeal relate to (1) the admission of evidence over defendant’s objection; (2) striking out of evidence, over objection of defendant; (3) refusal to give defendant’s instruction No. 14; (4) error in overruling defendant’s motion for a new trial.
It is maintained by appellant that the appeal is taken under the provisions of Chapter 149 of the Laws of the Fourteenth Legislative Assembly. The respondent maintains that the judgment appealed from should be affirmed or the appeal dismissed, for the reason that the record presented is not sufficient to enable the court to consider any of the errors assigned.
It is disclosed by the record that on the tenth day of July, 1915, appellant served notice on the respondent that he desired to incorporate in his transcript all of the stenographer’s notes of the testimony taken on the trial, and that he would also require the clerk to certify to the supreme court the original exhibits on file in the case, “and that these documents and éxhibits will be used on the appeal, instead of the bill of exceptions or statement pursuant to the provisions of Chapter 149 of the Laws of the Fourteenth Legislative Assembly.”
On the tenth day of September, 1915, the “transcript on appeal” was filed in the supreme court, and the same was within the time required served upon the attorneys for the respondent. This transcript on appeal contains the judgment-roll and some other papers, but does not contain any of the testimony in the case. The transcript was printed. A transcript of the evidence was made by the stenographer, which was, on August 31, 1915, agreed to by the counsel for appellant and respondent as cor
Section 1 of this law provides: “All pleadings, docket entries, minute entries, judgments, all the minutes of the trial court, including all papers and files, all testimony, exhibits and other evidence, whether settled in a bill of exceptions or statement of the case or not, shall be deemed to be brought up by an appeal and to be subject to review, and to be deemed part of the record on appeal in all cases. * * * The supreme court may ordain rules to regulate the manner in which any such papers may be brought up. In the absence of such rules, the following procedure may be followed. ” It is then provided that if the appellant desires to incorporate in his transcript all or any part of the stenographer’s notes or transcript, or any paper not appearing in the judgment-roll, or any bill of exceptions or statement of the case, he shall file and serve a praecipe, stating what papers and what, if any, part of the stenographer’s notes or transcript he desires to have incorporated in the transcript on appeal. The respondent may then serve and file a praecipe, stating what additional matters or other evidence he desires to have incorporated in the transcript. The transcript shall then be composed of the matters so designated, and of the judgment-roll.
The supreme court has not, since the enactment of this Chapter, ordained any rules relating to appeals; nor does the statute conflict with the rules of court theretofore existing relating to the service and printing of transcripts on appeal. Section 2 of the Act makes provision for “a stenographer’s transcript,” and
Section 1 of the Act relates to the “transcript on appeal,” which, under the rules of this court, must be served on the adverse party; and section 2 relates to the “stenographer’s transcript,” and not any provision is made, either in the Act or in the rules of the court, for its service. Section 1 gives direction as to what papers may be included in the transcript, and specifically provides that, if any parts of the stenographer’s notes are required to be incorporated, the same must be specified in the praecipe.
Section 2 gives authority for the filing of the stenographer’s transcript, and specially provides that this provision shall not be construed as relieving the appellant from having the same incorporated as a part of his transcript on appeal. Whatever
Assignment No. 3, relating to defendant’s proposed instruction
Assignment No. 4, relating to the order overruling defendant’s motion for a new trial, cannot be sustained, for the reason
The judgment and order appealed from are affirmed.
Affirmed.
Rehearing
On Motion for Rehearing.
(Submitted October 2, 1917. Decided December 11, 1917.)
delivered the opinion of the court.
Further consideration of this case on motion for rehearing convinces us that, while the conclusions announced touching the meaning of Chapter 149, Session Laws of 1915, are correct so far as they go, the final order of affirmance is too drastic. The appeals were sought to be taken under the provisions of that Act, and it is confessed by the opinion itself, as well as generally notorious, that the Act is not easy to construe. Being on the statute books, however, the appellant was entitled to follow it if he could, and he ought not to be deprived of a hearing on the
Reduced to its lowest terms, the Act provides:
(a) “All pleadings, docket entries, minute entries, judgments, all the minutes of the trial court, including all papers and files, all testimony, exhibits and other evidence, whether settled in a bill of exceptions or statement of the case or- not, shall be deemed to be brought up by an appeal and to be subject to review, and to be deemed part of the record on appeal in all cases.” This is clear and comprehensive. It means that all the proceedings in the court below may be brought up and submitted for consideration by either party on any appeal whatsoever. It is, and was intended to be, a distinct departure from the only system theretofore recognized whereby this court was restricted in its investigations to what was made to appear upon the judgment-roll, or in a settled bill of exceptions, according to the nature of the appeal.
(b) “It shall not, however, be necessary actually to bring all such papers before the supreme court, or to print them; only such as may be material or proper or necessary to be considered on the appeal need be brought up or printed. ’ ’ In other words, although the entire proceedings in the trial court are “deemed” before the supreme court, only such of them are in reality there as are actually brought up.
(c) “If the appellant desire to incorporate in his transcript * * * any paper or matter not appearing in the judgment-roll or in a bill of exceptions * * * he shall serve * * * and file * * # a praecipe stating what # * # he desires to have incorporated; * # * thereafter * * * any
(d) “In any case where the proceedings * * * have been reported by the official stenographer * * * and his notes shall have been transcribed and filed * * * and * * * certified by the court or judge as correct * * * or agreed to by * * * the attorney such transcript may at the request of either party be forwarded to the clerk of the supreme court with the transcript on appeal. * * * Such stenographer’s transcript may be referred to by the supreme court for the decision of any matter before the court * * * as fully as if it had been part of the bill of exceptions * * * as well as to supplement the record or correct any insufficiency or defect therein. This provision, however, shall not be construed as relieving the appellant from having the same printed as part of the transcript on appeal when requisite for the purposes of his appeal, nor relieve the respondent from the necessity of specifying in his praecipe what if any parts or additional parts of such stenographer’s transcript he desires incorporated in the
(e) “In all cases of insufficiency or other defectiveness in the transcript or papers on appeal, the appellant or other party in interest may be allowed to complete or correct the same. * * * In all such cases, the supreme court may impose such terms, costs or penalties upon the party responsible * * * as to the court may seem proper.” The result of this provision is [5] greater than appears at first glance, for it means not only what the words imply; it also removes a barrier which has heretofore prevented this court from authorizing more than merely formal corrections, or corrections resulting from suggestion of diminution. The rule announced in Cornell v. Matthews, 28 Mont. 457, 72 Pac. 975, and many preceding cases, that this court is without jurisdiction to hear the appeal unless the record is made up in compliance with the provisions of statute in that behalf, exists no longer; but any defect or insufficiency, short of a total disregard of the law, is now subject to correction upon terms suitable to the offense. This is as it should be.
Summing up the whole Act, the general purpose is apparent. It is to make it possible for either party to show that any given appeal is or is not meritorious and thus to further and extend the public policy of this state as expressed in section 9412, Revised Codes, and repeated decisions of this court. In short, the Act is in furtherance of justice, so far as justice may be done by this court exercising its constitutional functions of a court of review.
It is to be observed, however, that while the field of investigation is thus broadened, the canons of judgment in any appeal are in no wise changed. We are still to determine whether re
In the present instance the appellant assigns errors which do not appear upon the face of the judgment-roll, and seeks to have them reviewed on his appeal from the order denying him a new trial. It is manifest from what is said in the original opinion that he is in no position to do this as his transcript is now constructed; nor can he, by any effort, bring the supposed refusal of instruction No. 14 before us. Neither in the tran
The other questions sought to be presented here could be considered if the appellant should do what he notified the respondent he would do, viz., incorporate in his transcript on appeal the stenographer’s record, and cause to be certified to this court the original exhibits in the case; and this he must do at his own cost if he would be further heard. Ordered accordingly.