Charles Schatzlein Paint Co. v. Passmore

PIP. JUSTICE PIGOTT delivered tlie opinion of the court. These are appeals by the defendant from the final judgment entered against him and an order denying his motion for a new trial. 1. The action u as commenced in the court of a justice of the peace', where a judgment was rendered. From that judgment an appeal was taken to the district court, where, upon a trial de novo-, the present judgment was given and entered on October 28, 189S. Notice of appeal therefrom to this court was served on April 20, 1899, and filed on April 22, 1899. Subdi visit n 2 of Section 1123 of the Code of Civil Procedure", as amended in 1899 by House Pill No. 124 (Laws of 1899, page 140), provides that an appeal may be taken to the supreme court from a final judgment of a district court rendered on an appeal from an inferior court within ninety days after the entry of such judgment. The appeal from the judgment, not having been taken within ninety days after its entry in the district court, must, upon our own motion, be dismissed for want of jurisdiction to entertain it. (Morris v. McLaughlin, 25 Mont. 151, 64 Pac. 219; Warren v. Humble, 26 Mont. 495, 68 Pac. 851; Madigan v. Harrington, 26 Mont. 358, 67 Pac. 1121; Gallagher v. Cornelius, 23 Mont. 27, 57 Pac. 447.) Whether Section 1724 of the Code of Civil Procedure requires the notice of appeal to be filed and served on the same da}7 is a question reserved. ■ 2. There remains for consideration the appeal from the order refusing a new trial. It is contended that the, complaint fails to state facts sufficient to constitute a cause of action. This point was made by demurrer, which was overruled before the trial of the issues of fact, and the objection raising this point was not renewed or otherwise presented during the trial. A new trial is a re-examination of an issue of fact in the same court after a trial and decision by a jury or court, or by referees. (Section 1170, Code of Civil Procedure.) One of the causes for which, on application of the party aggrieved, the [503] verdict or oilier decision may be vacated and a new trial granted, is an error in law occurring at the trial, duly excepted to by him and materially affecting’ his substantial rights. (Subdivision 7, Sec. 1111, Code of Civil'Procedure.) If the court was wrong in overruling the demurrer, the error did not occur at the trial, and cannot be reached by the motion for a new trial. It could properly be presented on appeal from the judgment, but, as that attempted appeal must be dismissed, we are precluded from inquiring into the sufficiency of the complaint. 3. The other' specifications of error we have examined. After a careful consideration of the entire record, we are of the opinion that no one of them is meritorious. The instructions of which complaint is made are doubtless open to objection on the score of inaccuracy, but it is clear that error prejudicial to the defendant did not result therefrom. With respect to the verdict, we observe that while the evidence, as it appears in type, seems to- preponderate in favor of the defendant,- it was nevertheless sufficient to justify the verdict- against him. The weight of the evidence was for the jury. The attempted appeal from the judgment- is dismissed, and the order denying a new trial is affirmed. Let remittitur issue forthwith.