State v. Nilan

*399 Opinion: PER CURIAM. This is an attempted appeal by the state from a judgment of the district court of Lewis and dark county sustaining an objection of the defendants to the introduction of evidence in support of the allegations of the information, and dismissing the action. If the state has an appeal it is under the provisions of sub- division 1 of section 12108, Revised Codes of 1921, which provides, in part, that an appeal may be taken by the state from a judgment for the defendant on a demurrer to an information. The attorney general argues that the objection of the defendants to the introduction of evidence was in effect a demurrer to the information, and in support of this contention he relies upon State v. Vinn, 50 Mont. 27, 144 Pac. 773. On the other hand, the defendants assert that this court is without jurisdiction to entertain the appeal. The jurisdiction *400 of the court having been challenged, it is our duty to see whether we have in fact the right to proceed. Section 11901, Revised Codes of 1921, provides: “Upon considering the demurrer, the court must give judgment, either allowing or. disallowing it, and an order to that effect must be entered upon the minutes.” The order sustaining the demurrer constitutes the judgment. (State v. Libby Yards Co., 58 Mont. 444, 193 Pac. 394.) The statute here contemplates two acts: (1) giving judgment, and (2) entering the same upon the minutes; and an appeal will not lie until the judgment is entered. That this is so appears from the express language of section 12110, which declares: “An appeal may be taken by filing with the clerk of the court in which the judgment or order appealed from is entered or filed, a notice stating the appeal from the same, and serving a copy thereof upon the attorney of the adverse party.” The record on appeal in a criminal case, says the statute, shall consist of the judgment-roll as defined in section 12074 of the Code, a copy of the notice of appeal, and all bills of exception settled and filed in the case. (Sec. 12045; Rev. Codes 1921.) It is manifest that section 12045 must be construed with section 12074 and by reference to that section it is seen that the following papers constitute the judgment-roll: “1. The indictment, or information, and a copy of the minutes of the plea or demurrer. 2. A copy of the minutes of the trial.. * * * 4. A copy of the judgment.” The transcript will be searched in vain for a copy of the judgment in this action. As no judgment appears in the record we are without jurisdiction to proceed, and therefore are not permitted to consider whether the action of the court in sustaining an objection to the reception of . evidence was in legal effect a judgment for the defendants as upon a demurrer to the information. We have not overlooked State v. Carmichael, 62 Mont. 159, 204 Pac. 362. That case was decided upon the provision of section 9347, Revised Codes *401 of 1907, which section has been superseded by section 12045, supra. The appeal is dismissed. Dismissed.