Latimer v. Nelson

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. This is an appeal from an order of the district court of Missoula county refusing to issue an injunction pendente lite. The principal question submitted for decision involves the validity and construction of Chapter 30 of the Laws of the Twelfth Legislative Assembly. When the appeal was perfected, the plaintiffs presented to this court their petition asking that an injunction issue pending the appeal under the rule of this court relating to appeals from injunction orders. (Rule XXI, [546] 44 Mont, xxxix.) The petition was granted upon terms, and thereafter the hearing was upon motion of counsel expedited. We are precluded, however, from considering the appeal on the merits for the reason that counsel for the appellants have failed to file a properly authenticated transcript of the record of the [1] district court upon which the order was made. The record submitted consists of the petition presented to this court at the time the injunction was issued, embodying copies of the pleadings, certain affidavits and a stenographic report of the evidence of one of the defendants. But while these are certified to by the clerk as correct copies, they are not embodied in a bill of exceptions identifying them as the papers used at the hearing in the district court. Section 7113, Revised Codes, provides: “On appeal from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below.” Section 7115 provides that the copies referred to in the preceding sections must be certified to as correct by the clerk or attorneys. As has been repeatedly announced by this court, while this latter section authorizes the clerk or attorneys to certify that the copies furnished are correct copies, it does not authorize either to convey to this court in a certificate the information that the copies furnished are copies of the papers actually used as the basis of the order from which the appealo is taken. This information can be furnished only by a bill of exceptions, settled by a certificate of the judge in the usual way. (Rumney Land & Cattle Co. v. Detroit & Mont. C. Co., 19 Mont. 557, 49 Pac. 395; Cornish v. Floyd-Jones, 26 Mont. 153, 66 Pac. 838; Emerson v. McNair, 28 Mont. 578, 73 Pac. 121; In re Dougherty’s Estate, 34 Mont. 336, 86 Pac. 38.) Since we are not furnished] with a transcript which we can accept without question as a copy of the record upon which the district court based its order, we must observe the rule adopted in the eases cited and decline to consider the appeal on the merits. The order is therefore affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.