30 Mont. 367 | Mont. | 1904
delivered the opinion of the court.
This action was brought to recover a judgment against the defendants for a balance alleged to be due the plaintiff for the rent of certain premises in the city of Butte. Yerdict and judgment were for the plaintiff. Defendants moved for a new trial, alleging as grounds therefor that the court misdirected
Within the time allowed by the statute after notice of intention w7as served and filed, defendants prepared and served upon counsel for plaintiff their bill of exceptions and statement of the case. Certain amendments were proposed by counsel for the plaintiff, and accepted by the movants. Thereupon -the amended statement and bill were presented to the judge for settlement, and were settled and filed with the clerk; the certificate being as follows: “I hereby certify that the foregoing statement on motion for a new trial in the above cause is correct, and the same is hereby settled, allowed and ordered filed in the cause.” Thereafter, on motion of counsel for plaintiff, the court entered an order striking the statement and bill from the files, and dismissing the motion for a new trial, on the ground that the bill and statement did not contain “a true and correct transcript of the evidence heard at the trial.” From this order, defendants have appealed.
At the hearing on the motion, and in support of it, it was made to appear that counsel for defendants had incorporated in the statement and bill of exceptions a transcript of the evidence obtained from some other person than the official stenographer, instead of a transcript prepared by him from his notes. This fact, made to appear by the testimony of the official stenographer, -was the sole ground of the motion, and the basis of the action of the court, though it also appeared from this witness’ statement that the transcript was substantially correct. The court proceeded upon the theory that, in the preparation of bills of exceptions and statements, the parties must use transcripts of the evidence furnished by the official stenographer, and that he is the only' source from, which they may be obtained. This view is erroneous. The duties of the official stenographer are prescribed in the Code of Civil Procedure (Sections 370-377). While he is required to attend all sittings of the court, and to take full notes of all proceedings had thereat, and must file with the clerk his notes of such proceedings,
Nor should the motion have been dismissed. The defendants ’ had a right to have the motion considered by the court and de
• The order striking the statement from the files is reversed. The order of dismissal is set aside, and thei cause is remanded, with directions to the district court to restore the statement to the files, and to hear and determine the motion for new trial.
Reversed and remanded.