Becker v. Board of Commissioners

De Witt, J. The record in this case does not commend itself to the unqualified approval of the court. There purports to be a statement on motion for a new trial. There is nothing to indicate where it commences or ends, except that at a point in the transcript respondent’s attorney admits that the foregoing statement is correct and true. The judge nowhere settled it. (Raymond v. Thexton, 7 Mont. 299.) The statement, or that which we have tried to ascertain was intended as such, is a transcript of the stenographer’s notes by question and answer, apparently containing every syllable that fell from the lips of counsel, court, and witnesses, whether material or not. The order in which papers are inserted are as follows: Account, order of the board of commissioners, appeal from .the board, instructions on the trial in the District Court, verdict, evidence, exhibits introduced on the trial, stipulation of counsel, specifications of particulars, admission of service of statement, admission by defendant’s attorney that statement is correct, stipulation for hearing the motion for new trial at chambers, order denying the motion, notice of motion for new [89] trial, admission of service of the notice, notice of appeal, and undertaking on appeal. The exhibits are not engrossed in the evidence at their appropriate place, but are referred to with such notes as, “Here copy Exhibit B;” “Witness handed paper,” etc. The exhibits then appear after all the evidence. The record appears to be a skeleton draft, with directions to the engrosser as to how to fill in the superstructure. The engrosser, instead of constructing a perfect work, has simply piled up the material in a disorderly mass as it came to his hand. That this is not an adherence to chronological order does not require extended discussion. The court will not consider such a record. This court has expressed this view before in language which seems to us not wholly uncertain. (Newell v. Meyendorff, 9 Mont. 254; 18 Am. St. Rep. 746, and cases there collected; and Barger v. Halford, ante [this term], p. 57.) The fact .that the judge of the District Court never settled the statement, of course removes it from our consideration, and these criticisms may be gratuitous; but if the rules of practice in those matters are not clear, we have, perhaps not unwisely, been led into the domain of dieta to make them so. If the judge who presides in the seventh district had had opportunity to settle the statement, it would probably have been free from the rather apparent objections which we have noted. With no order on motion for new trial to review, and no statement on appeal before us, we have to examine only the judgment, and to consider only the judgment roll. The account, which takes the place of a complaint, and must be treated as the pleading, charges for 230 folio, at $1.50, $345; and 230 folios, at 50 cents, $1,035; the total of which sum is $1,380. The inconsistency between the items and the footing is manifest. In this disagreement, we must rely upon the items. We then find the claim to be 230 folios, at $1.50, $345; and 230 folios, at 50 cents, $115; total amount, $460. The pleading, therefore, claims $460. The claimant was allowed $460 by the board. He was allowed all he claimed, and the judgment of the District Court was properly in favor of the defendant board, which judgment we hereby affirm. Blake, C. J., and Harwood, J., concur.