Fant v. Tandy

McLeary, J. This controversy arose in the United States land-office at Helena, by the application of Tandy and others for a patent to the land in dispute as a placer mining claim. This application was adverse to Fant, and under the United States statute, this suit was brought to determine the question whether or not the mineral patent should issue. The case was tried before the court without a jury, and on findings of fact and conclusions of law made by the court, judgment was rendered in favor of the plaintiff, from which this appeal was taken. The court, in rendering judgment, also delivered an oral opinion, which was taken down by the stenographer, written out, and filed among the papers of this case, and is made a part of the record herein, in accordance with the statute. There was a motion for a new trial made and overruled, from which order only this appeal is taken. There is nothing in the transcript to show where the statement begins, or what papers are included therein. One hundred and sixteen pages of the transcript are covered with questions and answers to and [447] by the witnesses wbo were supposed to have testified in the case. It may be possible that this is a transcript of the stenographer’s notes taken in the case, but there is nothing in the record to show this. It has been repeatedly decided by this court that the mere transcript of the stenographer’s notes, giving the questions and answers propounded to and made by the witnesses, cannot be regarded as a statement on motion for new trial, or a statement on appeal; and evidence presented to this court in such a manner will be disregarded. It is not the business of this court to wade through over one hundred pages of questions and answers, composed largely of irrelevant matter, to ascertain what are the material points presented in the evidence. In making up a statement, it is the duty of counsel to condense the testimony of witnesses into narrative form, omitting all irrelevant matter, and presenting only so much of the evidence as bears upon the points in controversy on appeal. Then, after notice and amendments by the opposite party, the same should- be approved and allowed by the court, and signed as such, and appear in the transcript as a statement, either on a motion for a new trial, or on appeal. Unless this is done, the appellate court must be confined in the consideration of the case, where the appeal is taken from the judgment, to the judgment roll alone. Sec. 438, div. 1, Comp. Stats. Mont. 178. For these reasons, the evidence introduced in this case cannot be considered by this court in the manner in which it is presented. Raymond v. Thexton, ante, p. 313; Griswold v. Boley, 1 Mont. 545; Montana R’y Co. v. Warren, 6 Mont. 275. This transcript is made out in a very slovenly manner, and entirely disregards rule 6, and should not have been filed by the clerk, as he is forbidden to file such a transcript by the ninth rule of this court. Some stress is laid by the appellant on the fact that the opinion of the [448] court delivered in the case was, by order of the court, to be taken as findings of fact and conclusions of law therein. A note to that effect is inserted in the transcript, on page 123, by being pasted over some other note or memorandum, which is thereby rendered illegible. Such a mutilation of the transcript, whether it was done under the authority, of the district clerk or not, should not be tolerated. We cannot regard this order, presented in this manner, as properly a part of the transcript in this case. Rules Sup. Ct., in extenso; Comp. Stats. Mont., sec. 523, p. 198. But it is not the intention of the statute that the written opinion of the district court, placed on file in the case, shall be taken in lieu of findings of fact and conclusions of law. It is merely made a part of the record to aid this court in the determination of the issues involved. Comp. Stats. Mont., div. 1, sec. 438. A very interesting question was considered in the court below, which is not before this court for consideration; and that is, at what time must it be determined whether or not the lands embraced within the Northern Pacific Railroad grant are mineral or agricultural in their character? or in other words, is this question open until the patent issues to the railroad company, or not? The district court held that the matter could be inquired into by an adverse claimant at any time prior to the issuance of the patent to the railroad company; but'as the decision of this question was in -favor of the appellant, it has not been brought here for review. No appeal from the judgment having been taken, and the evidence not being properly incorporated into the statement on motion for new trial,'there is nothing left for this court to consider. In order to enable this court to consider eases tried in the district courts, and to reverse the judgment in case error is found therein, it is absolutely necessary that the [449] record should he presented in accordance with the statutes and the rules of court. There being no error in the record as properly presented here, the judgment of the court below must be affirmed. Judgment affirmed. Galbraith, J., and Bach, J., concur.