State ex rel. Pierson v. Millis

Buck, J. This purported appeal is from a special order made in the case after final judgment. Rader v. Nottingham, 2 Mont. 157, affirmed in Orr v. Haskell, Id. 350, holds that an order overruling a motion to retax costs is not appealable. These cases are cited with some apparent doubt in Mining Co. v. Weinstein, 7 Mont. 346, 17 Pac. 108, but without disapproval, and are also commented upon in Ryan v. Maxey, 15 Mont. 100, 38 Pac. 228, and Bank v. Boyce, 15 Mont. 175, 38 Pac. 829. They still, however, correctly enunciate the law of Montana, that, in order to review a ruling on a motion to retax costs, an appeal must be taken from the judgment. Even if the record in the present case was in proper form, which wé shall presently show it is not, there being no appeal from the original j udgment, we are not in a position to review that portion of the order attempted to be appealed from which pertains to the retaxation of the costs. It is true the motion is designated as one to reform the judgment, but. in substance, that part of it is in the nature of a motion to retax costs in a judgment. Whether erroneously or not, these costs were included in the judgment-at the time of its rendition. An objection to them could only be considered with the judgment before us on a direct appeal from the judgment itself. This would leave for the consideration of this court, then, the question only of whether or not the lower court erred in refusing to quash the execution on some other ground than the costs contained in the judgment. But the record is in such a condition as to present absolutely nothing for review. The certificate of the clerk is fatally defective in itself. It fails to state, as required by section 1739, Code of Civil Procedure 1895, that an undertaking on appeal in due form was properly filed. See Railroad Co. v. Anderson, 77 Cal. 297, 19 Pac. 517, which construes section 953 of the present California Code of Civil Procedure, — a section identical with section 1739 of the Montana statutes. Said section 1739 is as follows : ‘ ‘The copies provided for in the last three sections must be certified to be correct by the clerk or the attorneys, and must [448] be accompanied with a certificate of the clerk or attorneys that an undertaking on appeal in due form has been properly filed, or the stipulation of the parties waiving an undertaking. ’ ’ Again, the district court clerk had no authority, under said section 1739, to certify what evidence, documentary or oral, the court had before it on the hearing of the motion. See Baker v. Snyder, 58 Cal. 617, and Walsh v. Hutchings, 60 Cal. 228. Nor had he any authority to make the statement contained in the certificate that no memorandum of costs was ever filed. Section 1739 points out clearly what the certificate of the clerk shall be, and necessarily any statements contained in that certificate, except what the statute permits, are mere surplusage and meaningless on appeal. The present Montana Code of Civil Procedure, like the California Code, contains no express provision for the authentication or identification on appeal of the evidence, oral or written, used on a hearing like the one had in this case in the lower court. Section 1739 is, as we have stated, section 953 of the California Code of Civil Procedure, which was in force when the cases of Baker v. Snyder and Walsh v. Hatchings, supra, were decided by the supreme court of California. That there must in some manner be a proper identification or authentication of the evidence in such a case, for the purpose of having it considered on appeal, is essentially necessary, however. Hayne on New Trial and Appeal (section 264) discusses the question in detail, and cites California decisions, and the statutes of that state applicable to the inquiry are similar to those of Montana. There are also decisions of the supreme court of California on the subject later than those referred to in Mr. Hayne’s work.' See Somers v. Somers, 81 Cal. 608, 2 Pac. 967, and White v. White, 88 Cal. 429, 26 Pac. 236. In Somers v. Somers; Mr. Justice Works, with whom concurred Mr. Justice Fox, declares that the proper and simplest way of bringing up such evidence for review on appeal is by means of a bill of exceptions; that.is to say, of course, when the attorneys themselves do not certify as they are authorized [449] to do under said section 1739. We are inclined to agree with this view of the subject. After the case of Somers v. Somers, supra, was decided, the supreme court of California adopted a rule as follows : “ In all cases of appeal to this court from orders of inferior courts, the papers and evidence used or taken on the hearing of the motion must be authenticated by incorporating the same in a bill of exceptions, except where another mode of authentication is provided by law. ’ ’ The adoption of this rule simply carried out the views of Justices Works and Fox. Section 1156 of the Montana .Code of Civil Procedure is sufficiently comprehensive to admit of this practice without a formal rule of this court. This is a digression, but the question of practice is so important a one that we deem it appropriate to intimate our view of the matter. Returning to the record before us, we find that it consists of unidentified papers strung together, with nothing to suggest that they were used on the hearing of the appellant’s motion; with nothing even to indicate that there was no other evidence before the court when it made the order complained of. Under these circumstances, every presumption is in favor of the correctness of the order of the lower court. As early as 1874, Justice Knowles, in Hibbard v. Tomlinson, 2 Mont. 220, said : £ £A motion to retax costs should always be supported either by the records in the case, or by affidavits showing the illegal charges, or by a statement presenting them. ” In Rader v. Nottingham, Id. 127, this court, said: “Holding, as we do, that we have no jurisdiction to. determine the issue presented in this appeal, any judgment or order that we might render thereon would be void. Not desiring to cumber our records with a void judgment or order to vex the court below with, we must dismiss this appeal on our own motion. ’ ’ On our own motion, therefore, we dismiss this appeal. Dismissed- Pemberton, C. J., and Hunt, J. ,*■ concur.