8 Mont. 168 | Mont. | 1888
In this case the attorney-general for the Territory “ moves the court to dismiss the appeal, .... for the reason that the transcript was not filed within thirty days after the taking of said appeal.” The transcript was filed July 6, 1888, the notice of appeal was served upon the county attorney and the District Court clerk of Deer Lodge County, the place of trial, on the fourteenth day of May, 1888, and the necessary undertaking on appeal was executed May 17, 1888; hence the appeal was consummated on that day. (Comp. Stats. § 398, p. 477.) It will thus be seen that fifty days elapsed between the time of taking the appeal and the filing of the transcript. Section 397, page 476 of the Compiled Statutes provides that “the appeal must be taken within six months after the judgment is rendered, and the transcript must be filed within thirty days after the appeal is taken.” In the case of Territory v. Flowers, 2 Mont. 392, this court held that the foregoing statute, in so far as it requires the transcript to be filed within thirty days after the appeal has been taken, is merely directory, and not mandatory. We do not feel called upon to disturb it. The motion is therefore disallowed. But we cannot pass from this subject without remarking that the practice of attorneys in filing transcripts in this court just upon the eve of its meeting, or after the term has commenced, is reprehensible, and ought not to be followed except when it is absolutely unavoidable. It gives the attorney-general no opportunity to examine them, and prepare for hearing at that term. Conviction of a misdemeanor, motion for a new trial overruled, and an appeal to this court. The following grounds of error are relied upon for a reversal of this case, to wit: (1) Error for refusing to sustain defendant’s motion for a nonsuit, and to discharge the defendant. (2) Error in the refusal to admit certain testimony offered by the defendant. (3) Error in certain instructions given by the court.
The motion for a nonsuit was predicated upon the following grounds, to wit: “That the prosecution failed to prove that there was any such mine ever located as the Oregon Lode Claim; that the same had never been staked off, so that its boundaries could be traced on the ground; that there was no proof of the mineral character of the said Oregon Lode Claim; that there was no
Judgment reversed