Easton v. Western Life & Casualty Co.

MR. JUSTICE REYNOLDS delivered the opinion of the Court. Plaintiff brought action upon an accident policy against defendant for recovery of damages for injuries sustained. Defendant appeals from the judgment for plaintiff and order overruling motion for a new trial. [435] Respondent has moved this court to dismiss the appeals, for the reason that the transcript does not contain any copy of the judgment. It is elementary that an appellate court [1] cannot consider an appeal from a judgment which is not before it. This court has held that, when the transcript does not contain a copy of the judgment on appeal from the judgment, it has no jurisdiction to review and dispose of the cause on its merits. ’ (State ex rel. Bank v. Taylor, 33 Mont. 364, 83 Pac. 597; Lisker v. O’Rourke, 28 Mont. 129, 72 Pac. 416, 755.) Appellant, however, insists that he is entitled to have the [2] ease reviewed on its merits by virtue of the fact that he has appealed from the order overruling motion for new trial. However, on appeal from order overruling motion for new trial, it is necessary that the record show the judgment-roll, which necessarily includes the judgment. (Rev. Codes, secs. 6799, 7114, 7115; Minneapolis Threshing Machine Co. v. Stanford Merc. Co., ante, p. 359, 197 Pac. 993.) It has been decided by this court that, without such judgment in the record, no question is properly before this court for consideration. (Lisker v. O’Rourke, 28 Mont., at page 131, 72 Pac. 416, 755, on motion for rehearing.) The motion to dismiss the appeals is granted. Dismissed. Mr. Chief Justice Brantly and Associate Justices Cooper, Holloway and Galen concur.