28 Mont. 123 | Mont. | 1903
delivered the opinion of the court.
Original application for a wilt of mandamus to compel William Clancy, as judge of the Second judicial district court, to settle a statement on motion for a new1 trial. On application to this court an alternative writ was issued, directing the defendant judge to settle the statement or show cause why he had not done so. He appeared by motion to quash the writ, and also by answer. After argument, the question of law arising upon the record was submitted.
Thera is no material controversy as to the facts. So-1 far as they are necessary to be stated, they are the following: The causa of Harrington v. Stromberg-Mullins Company, a corporation, was tried in the district court of Silver Bow county on December 8, 1902, the defendant judge presiding. The plaintiff had verdict, and a judgment was rendered thereon. On December 10th the relator, through' its counsel, served and filed its notice of intention to' move for. a new trial, and on the same day obtained an order granting it'thirty days’ additional time in which to1 prepare and serve its -statement. The statement was served on counsel for the plaintiff in the case on January 17, 1903. Counsel proposed various amendments to the statement on January 20th. On January 21st he was served with notice that certain of the amendments had been adopted, but that others of them had not, and that the statement would be' presented to the defendant judge for settlement on January 27th, at 10 o’clock a. m., at the courtroom where the judge held court. At the appointed hour counsel for the plaintiff appeared. Counsel for the defendant (relator) did not appear, nor did they on that day leave with the cleric of the court or with the judge the statement, with the amendments. Sometime ini the afternoon of that day, however, one of counsel for the relator took the statement, without the amendments, to one of the clerk’s deputies, and, after having, him indorse upon it the date of its reception, took it' away again. It was retained by counsel until the
The question presented, therefore, is: Did- the relator, by its failure to present the statement, with the amendments, in accordance with the statute, or, in lieu thereof, by its failure to leave them with the clerk for the judge, lose its right to have the statement engrossed and settled ? It is argued by counsel that, notwithstanding they had first elected toi pursue the course indicated by their notice to secure the settlement, and the situation in which they found themselves on February 3d, they nevertheless had the right at that time to adopt the amendments! theretofore rejected, and insist that-the judge should settle the statement. In this we think counsel are in error. A motion- for a new trial is a statutory remedy, and, in order to successfully invoke it, the mode pointed out hy the statute must he pursued.
We note that the coui*t is made a party to this proceeding. Under the statute, it is the duty of the judge to settle statements and bills of exception, and for this purpose they must be pre*-sented to him, and not to the court as such. No point is made by counsel on either side as to whether this is proper pfractiee. We therefore pass it without comment.'
The alternative writ isi quashed and set aside, and the proceeding is dismissed.
Dismissed.