Sherman v. Higgins

McLeary, J. This is an appeal from a judgment of the district court of Meagher County, rendered on the twenty-fifth day of March, 1887, against the defendant, for one thousand dollars and costs of suit. The amended complaint was filed on the eighth day of April, 1886, and was duly followed by answer and replication.. On the 25th of March, 1887, the defendant made an application, through his attorney, William Wallace, Jr., for a continuance of the cause, which was overruled by the court and the cause submitted to a jury, who returned a verdict in favor of the plaintiff, and judgment followed accordingly. On the sixth day of June, 1887, defendant filed his motion for a new trial, and to set aside and vacate the judgment, which was, on the fifteenth day of October following, overruled. And from this order overruling the motion for a new trial, and from the judgment itself, this appeal is taken. It is noted in the order overruling the motion for a new trial, that, “ in consideration of an order heretofore made by this court requiring the defendant to reduce the stenographer’s minutes filed in said action to the form of a statement, upon motion for a new trial, not having been complied with, the said judge declined and refused to sign the same as a statement.” This action of the district judge in refusing to settle a statement wherein the evidence is composed entirely of the stenographer’s notes, without being reduced to proper form, and having irrelevant matter eliminated, was entirely correct. It is the proper practice, and we hope to see it [483] universally adopted hereafter by the judges of the trial courts. As is said in the case of Fant v. Tandy, ante, p. 443, it is not to be expected of this court to take the trouble of extracting from the stenographer’s notes the material evidence bearing upon the points presented here. Counsel seem to misunderstand the object of filing the long-hand copy of the stenographer’s notes. This is done to enable counsel to prepare their statements in accordance with the facts presented on the trial, and to preserve an authentic record to which the judge may refer in settling statements .as prepared by counsel. But the transcript of the stenographer’s notes is not intended to take the place of the statement to he prepared by counsel, or to relieve them of the labor of preparing the statement itself. It is unnecessary to enlarge upon this matter, and we will content ourselves in referring to cases heretofore decided, in which we have announced the rule of practice which will hereafter be followed. Fant v. Tandy, ante, p. 443; Raymond v. Thexton, ante, p. 313. In so far as the appeal is taken from the judgment, we can only consider the judgment roll, which, in this case, should consist of the summons, pleadings, verdict of the jury, bills of exceptions, statement, and a copy of the judgment. Comp. Stats. Mont., div. 1, sec. 306, p. 139. The question of whether or not the court erred in refusing to grant the continuance is not properly brought before us on the appeal from the judgment, because there is neither bill of exceptions nor statement on appeal incorporated in the transcript. The affidavit of counsel on his application, for continuance, although inserted in the transcript, has no proper place there, because it is neither embodied in a bill of exceptions nor a statement; hence it cannot be noticed in considering an appeal from the judgment. Blessing v. Sias, ante, p. 103; Kleinschmidt v. McAndrews, 4 Mont. 8, 223; Noteware v. Sterns, 1 Mont. 314; Hayne on New [484] Trial and Appeal, sees. 261 et seq. This brings us to the question of whether or not the court erred in overruling the defendant’s motion for a new trial. Our statute in regard to new trials provides that the application shall be made either upon affidavits, or upon the minutes of the court, or upon a bill of exceptions, or upon a statement of the case. Comp. Stats. Mont., secs. 296, 297, p. 135. An examination of the transcript will show that no statement was ever settled or signed, and no bill of exceptions was ever prepared or allowed, and the minutes of the court do not appear. Then this motion must be considered, if at all, as being based upon the affidavits presented at the hearing of the motion. Upon examination of these affidavits, it will be found that there is no certificate that they were used by the court below upon the hearing of the motion, as is required by the statute. They should have been included either in a bill of exceptions or a statement on motion for a new trial, or otherwise certified, so as to be identified properly, not only as a part of the record, but also to show that they were used by the court upon the hearing of the motion. Comp. Stats. Mont., div. 1, sec. 438; Mining Co. v. Weinstein, ante, p. 346; Raymond v. Thexton, ante, p. 313; Hayne on New Trial and Appeal, sec. 264, and cases there cited from the California courts. We cannot consider this motion for a new trial as an application to vacate and set aside the judgment under section 116 of our statutes, for no attempt has been made to comply with that section. And even if that section had been complied with, and the matter passed upon by the judge at chambers, still, it being a matter entirely within his discretion under the statute, and no abuse of that discretion having been shown, we could not disturb the judgment on that account. Comp. Stats. Mont., div. 1, sec. 116, p. 88; Whiteside v. Logan, ante, p. 373. From the [485] manner in which this appeal is presented to this court, it would seem that there is a misapprehension among the members of the bar as to the practice upon this subject. This may probably arise from the change in the law of California. Our statute is similar to the old Practice Act in California, under which there was a separate provision for a statement on appeal and a statement on motion for a new trial, and one could not be used for the other. Under the present law of California, the parties may consent to use the statement, on motion for a new trial, for a statement on appeal. But this does not change the rule in regard to what can be considered and reviewed by the court on an appeal from the judgment, and on an appeal from an order overruling a motion for a new trial, respectively. On an appeal from the judgment, errors of law alone can be reviewed; but on an appeal from an order overruling a motion for a new trial, the facts also may be inquired into. Our statute provides that certain orders are deemed excepted to; and in order to have them reviewed by the supreme court, it is not absolutely necessary that a bill of exceptions should be prepared and signed; but they may appear in the statement on appeal, and must appear in either the one or the other when the appeal is from the judgment including such orders. There being no bill of exceptions, and no statement, either on motion for new trial or on appeal in this case, the order overruling the application for a continuance has not been properly brought before this court, it having no independent place in the judgment roll. All presumptions being in favor of the correctness of the judgment of the court below, and no error having been properly presented in the transcript, the judgment of the district court is accordingly affirmed. Judgment affirmed. McConnell, C. J., and Galbraith, J., concur.