Lisker v. O'Rourke

MR CHIEF JUSTICE BRANTLY delivered the opinion of the court. This action was brought by the plaintiff, as surety, to obtain contribution from the defendant, his cosurety. The defendant had judgment. The plaintiff has appealed' from the judgment and an order denying a new1 trial. ’ 1. Upon the appeal from the order, the errors assigned are ulppn the rulings of the court in excluding certain evidtence offered by the plaintiff, and) in striking, out a certain statement made by the defendant when testifying in his own behalf. The evidence offered and excluded wasi neither, relevant to, nor did it tend in any way to establish, the cause of action alleged in the complaint. It related wholly, to matters alleged in the answer by way of affirmative defense. The plaintiff cannot complain because he was not permitted to introduce in chief evidence [131] which, though relevant to the issue made by the answer, was' not necessary to make out his case as alleged. The evidence was properly excluded. -The evidence stricken out was a voluntary statement made by the defendant, not responsive to any question asked him, and wholly irrelevant to the issues in the: case. This ruling was also correct. 2. We cannot consider any. error assigned upon the appeal from the judgment, for the reason that the record does not show that any judgment has been entered in the case in the court below. To support an appeal, the judgment must not only be entered (Code of Civil Procedure, Sec. 1722, Session Laws of 1899, p-. 146), but the record on appeal must contain a copy of it (Code of Civil Procedure, See. 1736). The record contains a copy óf a minute entry directing judgment to be entered for the defendant. This order is: not a judgment. (Butte & Boston Con. Mining Co. v. Mont. Ore Pur. Co., 27 Mont. 152, 69 Pac. 714.) This appeal must therefore be dismissed. (Brunell v. Logan, 16 Mont. 307, 40 Pac. 597.) The appeal from the judgment is' dismissed; the order denying a new trial is affirmed.