No. 1,604 | Mont. | Jun 22, 1903
delivered the opinion of the court.
This was an adverse suit instituted in the district court of Fergus county, Montana, pursuant to Section 2326 of the Revised Statutes of the United States (U. S. Comp-. St.. 1901, p.
The respondent insists that the motion for new trial was properly denied, for the reason that the proposed statement on motion for new trial and the amendments offered thereto were not presented to the judge for settlement, or left with the clerk for the judge, within the time allowed by law or the order of the court. The record discloses that a decision was rendered in the cause on the 1th day of September, 1899, and on that day the plaintiffs were granted thirty days in addition to the time allowed by law to prepare, serve and file their statement on motion for new trial. The statement was served on defendant on October 9th, and on October 11 th defendant prepared and served upon the plaintiffs his amendments thereto. Nothing further was done until October 30th, when the proposed stater ment, with the amendments, were filed with the district clerk, and on October 31st the plaintiffs notified the defendant that they would not accept his proposed amendments. On November 11th plaintiffs gave notice that they would call the matter up for settlement on November 16th. The defendant thereupon filed and served written objection to the settlement of the proposed statement upon the ground that such statement and amendments offered thereto were not presented by the moving parties •to the judge, or delivered to the clerk of the court for the judge, within ten days after the date upon which the amendments were served upon them. This objection was by the court considered and overruled, but incorporated in and made part of the statement, and such statement was thereupon settled. On March 24, 1900, the court overruled plaintiffs’ motion for a new trial.
Section 1113 of the Code of Civil Procedure provides: “Sec. 1113. * * * (3) If the motion is to be made upon a state
The question raised here is analogous to one where the statement is not served within the time provided by law or the order of the court, and it has hecome the settled doctrine in this state that a disregard by the moving party of the plain requirements of Section 1173, supra,, will defeat his right to have the statement considered for any purpose.
The order of the district court overruling the motion for a new trial does not indicate the particular ground upon which it was made, and it is not necessary that it should, for-every legitimate intendment will be indulged in favor of the order. If it can be supported for any reason, it will be done. (Beach v. Spokane R. & W. Co., 25 Mont. 367" court="Mont." date_filed="1901-06-03" href="https://app.midpage.ai/document/beach-v-spokane-ranch--water-co-6640191?utm_source=webapp" opinion_id="6640191">25 Mont. 367, 65 Pac. 106.)
When the statement and proposed amendments, with defendant’s objection, were presented to the district judge, he could properly refuse to settle the statement, or he could settle the same, and deny the motion for a new trial. In this instance
This disposes of' tbe appeal from tbe order overruling tbe motion for a new trial, for, under tbe circumstances presented by tbe record, “this court must disregard tbe statement and all questions sought to be presented thereby.” (Power v. Lenoir, supra.)
There is in tbe record before us for consideration then only the judgment roll, and an examination of that discloses no error.
-Tbe judgment and order appealed from are affirmed.
Affirmed.