Kirk v. Smith

MR. JUSTICE SANNER delivered the opinion of the court. Action for malicious prosecution. Yerdict and judgment for the plaintiff. Defendant appeals from the judgment, and from an order denying his motion for a new trial. The judgment itself is not assailed nor in any wise questioned, save as affected by the order denying the motion for new [1] trial. That order is a general one, and must be sustained, if ground therefor appears upon the face of the record, Such ground does appear in the fact that the defendant’s bill of exceptions was not presented for settlement within ninety days of the verdict. The time for such presentation was extended [197] by the trial judge, but without the consent of the plaintiff or his attorney. The case, both as to the facts and the law, is squarely within the decision of this court in Canning v. Fried, 48 Mont. 560, 139 Pac. 448; and, as the plaintiff insists in this court that the order of the district court was correct, because, among other reasons, there was no bill of exceptions, we see no escape from that conclusion. The judgment and order appealed from are affirmed. Affirmed. Mr. Chief Justice Brantly and Mr. Justice Holloway concur.