155 P. 276 | Mont. | 1916
delivered the opinion of the court.
In an action entitled First National Bank of Miles City v. Theo. Lindsey, tried in the district court of Fergus county, resulting in a verdict and judgment for plaintiff, the defendant gave notice of his intention to move for a new trial upon a bill of exceptions thereafter to be prepared. A draft of the proposed bill was served and delivered to the judge for settlement. At the instance of the plaintiff, the proposed bill was stricken from the files and settlement refused November 29, 1915. To the application of the moving party for an alternative writ of mandate, the respondent judge has made return that the order striking the bill has been rescinded and the bill restored to the files, and that he has refused to settle it because it does not contain all the proceedings or all the evidence or the substance of it, and contains a misstatement of facts. These reasons will be treated as additional grounds for the order refusing settlement on November 29, 1915. We do not concede that the court
So far as the record discloses, the relator pursued the stat-
An attorney who intentionally presents a false or unfair statement of the court proceedings for settlement as a bill of exceptions merits discipline; but attorneys even are fallible, and of this fact the legislature took notice in providing for amendments (sec. 6788, Eev. Codes), which would be altogether unnecessary if the moving party’s draft must be absolutely correct in the first instance.
Generally, the bill should not contain all the evidence taken upon the trial. Section 6788 commands “the judge or referee
Writ Issued.