Robertson v. Longley

28 Mont. 128 | Mont. | 1903

MR. GHIE'F JUSTICE! BRANlTLY

delivered the-opinion of the court.

This action was brought by the plaintiffs, as stockholders of the Enterprise Mining & Smelting Cbmpany, a corporation, to "obtain a decree declaring the defendants! trustees of the title to the New: Enterprise and Blue Mountain quartz lode mining claims for the benefit of the corporation, and requiring them to make conveyances of the property to it. From a judgment in favor of the defendants', plaintiffs have appealed.

There was no motion for a newi trial in the court below, and the only question argued in the brief of appellants is the insufficiency of the evidence to sustain, the findings. TJpon examination of the transcript, we find that we cannot consider this question for two reasons:

1. Section 1152 of the Code of Civil Procedure provides that, “when the exception is to the verdict or decision, upon the ground of the insufficiency of the evidence to 'justify it, the objection must specify the particulars in which such evidence' is alleged to- be insufficient.” The bill of exceptions found in the record contains no specifications whatever, nor any attempt in any manner to- point out any alleged insufficiency of the evidence. It must, therefore, be disregarded.

2. It is not apparent from any recital in the record that it contains all the evidence, or the substance thereof, heard by the court below at the trial; nor is there any statement in the certificate of the judge from which- the inference is permissible that the bill contains all the evidence in substance-. The record, therefore, does not present the question which appellant® desire to have reviewed. (State v. Shepphard, 23 Mont. 323, 58 Pac. 868; T. C. Power & Bro. v. Stocking et al., 26 Mont. 478, 68 Pac. 857; King v. Pony Gold Mining Co. et al., 28 Mont. 74, 72 Pac. 309.) The judgment is therefore, affirmed.

Affirmed.