Smith v. Kirk

MR. CHIEF JUSTICE BRANTLY delivered the opinion of the court. Action for damages for loss sustained by the plaintiff by reason of the sale to him by defendant of a glandered horse. The defendant suffered default, and judgment was thereupon entered for the. relief demanded. On motion of defendant, an order was made setting aside the default and judgment, and he was permitted to file an answer. Plaintiff has appealed. The appeal cannot be considered on the merits, for the reason that, whereas the motion was based upon a showing of excusable neglect, the record does not embody properly authenticated copies of the affidavits filed in support of it. It has often been [1] announced by this court that, upon an appeal from an order such as the one at bar, the papers actually used as the basis of it in the district court must be embodied in a bill of exceptions certified by the judge a quo, and that copies certified by the clerk or attorneys only will not be considered, that further announcement on the subject ought not to be necessary. On the authority of Latimer v. Nelson, 47 Mont. 545, 133 Pac. 680, the latest announcement on the subject, and the cases cited therein, the order appealed from is affirmed. Affirmed. Mr. Justice Holloway and Mr. Justice Sanner concur.