Yellowstone National Bank v. Gagnon, 25 Mont. 268

Yellowstone National Bank v. Gagnon

25 Mont. 268 | Mont. | 1901

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

The plaintiff has appealed from the final judgment in an action upon promissory notes executed by the defendant.

1. A paper entitled “Bill of Exceptions” is by copy included in the transcript. Appended to it is the following certificate by the judge who tried the cause: “The foregoing bill of exceptions is signed, settled and allowed by me this 27th day of June, A. D. 1898, together with the proposed amendments of defendant.” Counsel for the plaintiff, while conceding that the amendments offered by the defendant were allowed, but were not incorporated into- the bill, asserts that since they appear in the transcript the court should consider them in connection with the supposed bill. This we may not do. It is time that there is copied into' the transcript a paper .purporting to embrace the amendments proposed by the defendant and allowed by the judge; but it is no part of the record on appeal. It is not included within any bill of exceptions or statement on motion for a new trial, nor is it one of the papers which Section 1196 of the Code of Civil Procedure designates as part of the judgment roll; neither is it required by Section 1736 of the Code of Civil Procedure to be furnished to' this Court on appeal; hence we cannot look to it for any purpose. What the amendments are, or whether the matter therein contained be material or immaterial, relevant or irrelevant, we have no means of determining. They must .be disregarded. We have, then, the certificate of the judge to the effect that the bill of exceptions proposed by the plaintiff, together with the *270defendant’s amendments proposed thereto^ are settled, but wbat tbe amendments are is not disclosed, and it is apparent that tbe amendments are not in tbe bill. Tbe proposed bill and tbe amendments — not one, but both — were necessary to constitute a bill of exceptions. Tbe judge should not, in any event, have made tbe certificate be did, nor should he have certified tbe supposed bill'to be correct until after the amendments were incorporated.- He ought not to bave given any certificate before engrossment. Although there is in Subdivision 3 of Section 1173 of tbe Code of Civil Procedure an express provision requiring proposed statements on motions for a new trial and the amendments to be engrossed, no such provision is made, so far as we are advised, in respect of bills of exceptions; but the bill and amendments, when settled, must nevertheless be engrossed, in order to constitute such a bill of exceptions as is contemplated by the law. The amendments allowed must be inserted, and the proposer of tbe bill must see that this is done. Such has always been the rule and practice in the territory and state of Montana. Nothing in Wulf v. Manuel, 9 Montana, 276, 23 Pacific Reporter 723, nor in Penn Placer Mining Company v. Schreiner 14 Montana 121, 35 Pacific Reporter 878, indicates anything to the contrary. Tbe so-called bill of exceptions must also be disregarded.

2. Having eliminated the supposed bill of exceptions, nothing remains for our consideration except the judgment roll.

Counsel* for the plaintiff contends that the answer fails to state facts sufficient to constitute a defense or counterclaim to the second cause of action alleged in tbe complaint. That question was determined adversely to the plaintiff upon tbe former appeal in this case, tbe opinion being reported in 19 Montana, on page 402, (61 Am. St. Rep. 520, 48 Pac. 762). This Court there held that tbe answer in tbe respect mentioned does state a defense, and it matters not wbat view may now be taken of the correctness of tbe decision, for tbe law of tbe case was declared, and it is binding upon this Court as well as upon the court below.

*2713. The court, without a jury, tried the cause; and made certain express findings of fact, which in and of themselves ■do not support the judgment. But Sections 1114 and 1115 of the Code of Civil Procedure are as follows: “Sec. 1114. No judgment shall be reversed on appeal for want of findings at the instance of any party who-, at the close of the evidence and argument in the cause-, shall not have requested findings in writing and had such request entered in the minutes of the court; nor in cases tried by the court shall the judgment be reversed on appeal for defects in the findings unless exceptions be made in the court below for a defect in the findings or in a finding.- Sec. 1115. In cases of exceptions for defective findings, the particular point or issue upon which the party requires a finding to be made, or the particular defect to be remedied, shall be specifically and particularly designated; and upon failure of the court to remedy the alleged defect, the party moving shall bo entitled to his exceptions, and the same shall be settled by the judge as in other cases.” It does not appear that the plaintiff either requested findings in writing or filed exceptions for defective findings. In this state the system of implied findings prevails (Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447; Haggin v. Saile, 23 Mont. 375, 59 Pac. 154), and, in the absence of a compliance with the requirements of the sections quoted, the presumtion obtains that the court impliedly found for the prevailing party upon the issues of fact not covered by the express findings. Unless the party .seeking a reversal has followed the course prescribed by sections 1114 and 1115, the express findings are supplemented by implied findings. So considered, the findings in this case are responsive to the issues, and support the judgment.

Owing to the want of any bill of exceptions, the evidence cannot, as we have said, be examined for the purpose of ascertaining whether it tended to1 prove the facts found or warranted the coui't in making the decision. Por the same reason, the question whether the court erred in sustaining the defendant’s motion for the judgment that was rendered cannot be determined.

*272The judgment will be affirmed, and it is so. ordered. Remittitur may issue forthwith.

Affirmed.

Mr. Justice Milburn, having presided as judge in the court below upon the first trial of the cause, did not hear the argument on the present appeal, and does not participate in the foregoing opinion.