Sanderson v. Billings Water Power Co.

Buck, J. Appellant insists that the complaint in this action does not state facts sufficient to constitute a cause of action, and hence does not support the judgment. His counsel suggests in support of this only ambiguities and uncertainties in the averments of the pleading. The record fails to disclose that a demurrer was interposed to the complaint on any ground whatsoever, and by- answering appellant has waived the right to object to any such defects, if they exist. The complaint, in our opinion, states a cause of action. We are also asked to examine certain instructions given by the lower court, which counsel for appellant claims are ‘‘inconsistent with, not justified by, and unsupported by the pleadings.” At the time the judgment roll in this case was made up, which was before the codes of 1895 went into effect, the instructions in a case were not a part of the judgment roll, unless included in a bill of exceptions. See Kleinschmiat v. McDermott, 12 Mont. 315, 30 Pac. 393, and especially the concurring opinion written by Mr. Justice De Witt. (Missoula Electric Light Co. v. Morgan, 13 Mont. 394, 34 Pac. 488, and State v. Black, 15 Mont. 143, 38 Pac. 674.) The instructions in this case were never included in any bill of exceptions, and thereby made a part of the judgment roll. It is true -they were set forth in the statement on motion for a new trial originally in the record, but they were there merely as a part of said statement. When this court struck out that sta ement, it also struck out of the record the instructions in the case, and therefore they are not before us for any consideration whatsoever. The judgment is affirmed. Affirmed. Pemberton, C. J., and Hunt, J., concur.