This cause was heretofore before this court in Calvert etal. v. Anderson et al., 73 Mont. 551, 236 P. 847, on an appeal from a judgment of dismissal entered after a demurrer had been sustained to the plaintiffs' second amended complaint, and the plaintiffs had elected to stand thereon. On that appeal it was held that the second amended complaint did state a cause of action, and the judgment was reversed. For a detailed statement of the nature of the action and the relief sought by the plaintiffs, reference is made to the opinion of the court in that case.

After the case went back to the district court, answers were filed by the defendants and issues joined, by which two questions were presented for determination: (1) Whether defendants had negligently caused damages to plaintiff's property, and, if so, the amount thereof; and (2) whether plaintiffs were entitled to an injunction restraining the defendants from maintaining and operating their ditch as it had theretofore been maintained and operated. When the cause came on for trial, the question of damages was submitted to a jury, which returned a verdict in favor of the plaintiffs. The court having expressly reserved to itself the question whether plaintiffs were entitled to the injunctive relief prayed for, subsequently determined that question in favor of plaintiffs, and thereafter rendered and entered its judgment and decree in favor of plaintiffs and against the defendants for the amount of damages determined by the jury and for the injunctive relief asked for in the complaint. From this judgment the defendants have appealed.

The defendants undertook to make a motion for a new trial in[1] the lower court and to settle a bill of exceptions in support thereof. Over the objections of the plaintiffs, the court did settle such a bill, and the same is included in the transcript on appeal filed in this case. The plaintiffs have moved the court to strike this bill of exceptions from the transcript *Page 444 herein. In the course of the proceedings leading up to the settlement of such bill of exceptions, the court, on March 31, 1926, made an order granting to the defendants an extension of time in which to prepare, serve and file their bill of exceptions, and from this order the plaintiffs appealed to this court. That appeal, No. 5,987, entitled Calvert et al. v.Anderson et al., ante, p. 334, 254 P. 184, was decided on February 24, 1927. In the opinion therein all of the facts and circumstances leading up to the making of the order of March 31 are fully set forth, and it is unnecessary to repeat them here. We there held that said order was made without jurisdiction and was therefore void, for the reason that no motion for a new trial had been made in the cause, because the notice of motion for new trial had been prematurely served and filed, and consequently that order was set aside. The determination therein is decisive of the plaintiffs' motion to strike the bill of exceptions from the transcript filed on this appeal. Upon the authority of the decision in said cause No. 5,987, the motion is sustained and the bill of exceptions embraced in the transcript herein is ordered stricken therefrom.

This leaves before us for consideration only the judgment-roll. Appellants, in their brief, have set out[2] twenty-six specifications of error, each of which is based upon matters shown only in the foregoing bill of exceptions, and because these specifications are based upon matters which could be brought to the attention of the court for review only by a bill of exceptions, duly allowed, settled and filed, they cannot be considered on this appeal.

Since there is nothing before the court which can be reviewed, it follows that the judgment must be affirmed, and it is so ordered.

Affirmed.

MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, MATTHEWS and GALEN concur. *Page 445