Mahoney v. Dixon

MR JUSTICE HOLLOWAY, after stating the case, -delivered the opinion of the court. ' A question of practice is presented by respondent’s motion to strike from the files and disregard the statement on motion for new trial. It is contended that, as the appeal from the order overruling the motion for new trial has been dismissed, there is now properly before this court for consideration only the judgment roll. The question presented calls for a construction of Section 1736 of the Code of Civil Procedure, which reads as follows: “Sec. 1736. On an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies. Any statement used on motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing .a new trial.” [113] Notwithstanding the statute provides that any statement used on motion for a new trial may be used on appeal from the final judgment, it has wholly failed to provide any means by which it may be ascertained that a particular statement was so used, for the order disposing of the motion for a new trial is not a part of the statement itself, and there is no statute which requires the district court, in any event, in such order, to specify the papers which were used. A statute similar to Section 1736, above, has long been in force in California, and has been considered by the supreme court of that state a number of times. Spelling, in his work on New Trials and Appellate Practice, after carefully reviewing all these decisions, reaches this conclusion : That if the record before the supreme court discloses a' statement prepared, settled and filed according to law, and it is made to appear that a decision on the motion was made, it will be presumed, in the absence of any showing to the contrary, that such statement was actually used upon such motion. (2 Spelling on New Trials and App. Practice, Sec. 423.) We are disposed to accept the conclusion reached above, and adojit the practice therein indicated. The extent of the use which may be had of such statement on an appeal from the final judgment was determined, in Whalen v. Harrison, 26 Mont. 316, 67 Pac. 934, to be for all purposes for which a bill of exceptions may be properly used. In other words, any question of law which may be raised in the statement, if otherwise properly presented, will be considered and passed upon by the supreme court. While we cannot consider the question of the insufficiency of the evidence to support the verdict or other decision, we can determine the question of law suggested by the inquiry, is there any evidence to support it? Instruction No. 6, above, given by the court, is indefinite. The jury should have been made to understand that it is only for damages proximately caused by the wrongful act of defendant Dixon that the plaintiff may recover. If, in fact, the plaintiff did not rely upon the statements contained in the notary’s certificate, then the mere fact of the notary’s violation of [114] his official duty could not have been the proximate cause of plaintiff’s injury. It was necessary for the plaintiff to allege, as he did, that he did rely upon such certificate, but this allegation is put in issue by the answer. It was therefore, necessary to be supported by the proof, and considered and passed upon by the jury. Upon a retrial of this cause, this instruction may be modified in the particular indicated. Rehearing denied September 28, 1904. Instruction No. 8, above, is wrong. It submitted to the jury an entirely erroneous standard by which the jury might determine the measure of plaintiff’s damages. By it the jury was told that the measure of such damages is the value of the property described in the spurious mortgage, not exceeding the amount of the notary’s official bond. A simple illustration will show the absurdity of this position. Assuming that the property was of the value of $4,500, and that there were prior mortgages or liens upon the property to the amount of $4,000, in that event the utmost extent of plaintiff’s loss would be $500, for that would be the full value of the security which he would have had for his loan, had the mortgage been genuine. Therefore the value of the property is not necessarily the criterion for determining the measure of damages. On the contrary, the measure of damages in this instance is the value of the security which the plaintiff would have received, had the mortgage been valid, not exceeding the amount loaned by plaintiff, and the burden of proof was upon the plaintiff to show such value. We have examined the other assignments of error which are properly before us, but find no merit in them. The motion to strike the statement on motion for new trial from the files is overruled, and the judgment is reversed, and the cause remanded for new trial. Reversed and remanded.