Kleinschmidt v. McAndrews , 4 Mont. 8 ( 1881 )

• Galbraith, J.

This is an appeal from a judgment directed to be entered by the court in pursuance of its action in granting a motion for a non-suit. The transcript, in addition to papers constituting the judgment roll in the case, contains an “agreement” between the parties in relation to what questions should be tried; a “ stipulation ” in relation to an amendment of the ad damnum clause of the complaint, the disposition of the property, and other matters between the attorneys in the case; and also contains evidence introduced upon the trial (which was to a jury) by the plaintiff. Neither the “agreement,” the “stipulation,” nor the evidence, are expressly made part of, nor expressly stated in any bill of exceptions, but are simply certified to by the clerk as being a “full, true and correct transcript of certain records and proceedings filed, made and had in said court, in the above entitled cause, as the same are of record and filed in my office.” Therefore, the above “agreement,” “stipulation” and evidence do not constitute any part of the judgment roll, not having been made a part of or stated with a bill of exceptions, excepting that part of the “stipulation” which relates to the amendment of the complaint. This may be considered a part of the judgment roll, as constituting a portion of the pleadings. It is contended on the part of appellants that the power to make any of its proceedings under the hand and seal of the judge a part of the record is inherent in courts, independent of statute. Be this as it may, nevertheless, when the law-making power has denominated what shall constitute the judgment roll, the court will not assume to add to or detract from its specifications in relation thereto.

An exception is designated by the statute as being “an objection taken on the trial to a decision upon a matter of law at any time from the calling of the action for trial to the rendering of the verdict or decision.” Sec. 279 of the Code of Civil Procedure. Section 291 of the same act also provides what papers shall constitute the judgment roll, and specifies among them, “all bills of exception taken and filed in said action.”

The exception taken by the appellant to the ruling of the court sustaining the motion for a non-suit, and directing judgment to be entered in favor of the defendant, could not, in the very nature of the case, be an exception within the meaning of the above provisions, and therefore is no part of the judgment roll. It could not have been taken until after the rendition of the decision of the court. But granting, for the sake of the argument, that the above bill of exceptions did constitute a part of the judgment roll, nevertheless the evidence and other matters contained in the “agreement” and “stipulation,” so far as they relate to the motion for a non-suit, cannot be considered in connection with such a bill of exceptions. The bill of exceptions is as follows, viz.: “ To the entry ■of which said judgment the plaintiff then and there excepted, and asked the court to sign this bill of exceptions, and that the same be made part of the record, which is done accordingly this 22d day of March, 1880. (Signed) D. S. Wade, Judge.”

Section 282 of the Code of Civil Procedure requires that “the objections shall be stated with so much of the evidence or other matter as is necessary to explain it.” Section 281 requires that “the point of the exception shall be particularly stated, . . . and may be delivered in writing to the judge; . . . when delivered in writing, . . . it shall be made conformable to the truth, or be at the time corrected until it be made so conformable.”

Prom these sections we must conclude that the particular facts, whether evidence or other matter, upon which the court rules, are intended to be presented in the bill of ■exceptions. It is apparent that it is principally for this reason that it is made the duty of the court to settle the exception, or, in the language of the statute, to correct it when delivered in writing, until “it shall be made conformable to the truth.” That the Code of Civil Procedure intends that the bill of exceptions shall contain the evidence or other matter upon which the alleged objectionable ruling of the court is made, is also evident fro m the fact that the only kind of papers specified, among those constituting the judgment roll, which could possibly contain the evidence, are bills of exception. The Code-of Civil Procedure contemplates an appeal from the judgment, in which the judgment roll alone' may be considered. This is when there is no statement annexed to the-judgment roll. The provisions of the California Practice Act, in respect to the method of presenting the action of the court below for review, are almost identical with those of our Code of Civil Procedure. In reference te this subject, in Wetherbee v. Carroll, 33 Cal. 549, Sawyer, J., giving the opinion, says: “The judgment roll is itself a record for an appeal, and there may be no occasion for anything further to present the question raised. But it has been settled from an early day, that, by an appeal from a judgment without statement, nothing is brought up or is a part of the record on appeal except the judgment roll, and no question arising outside of the roll can be considered. If any further record is required, it must be in the form of a statement.” Also in reference to exceptions, in the same case, the same judge says: “They are the only exceptions or bills of exceptions known to our Practice Act, except so far as a ruling and exception to it, presented by a statement made in the mode prescribed by that act, may be regarded as a bill of exceptions. Quivey v. Gambert, 32 Cal. 304 The reasons upon which this restriction of the cases for exceptions, and for the mode prescribed for taking them,, seem obvious enough. At the trial both parties are present, and in settling the exceptions can be heard. Each party can see that everything necessary to the presentation of the entire merits on both sides is introduced. ‘The objection shall be stated with so much of the evidence, or other matter, as is necessary to explain it, but no more.’ Seep. 92; Mont. Code of Civil Procedure, sec. 282. The parties have the same opportunity for securing a correct presentation of the exceptions as is offered in settling a statement. The only other mode of making up anything like, or answering to, a bill of .exceptions is by a statement proposed in the manner prescribed by the Practice Act, in the preparation of which both sides are also heard. The policy of the act is that, whenever there is a possibility that a partial record for presenting a point may be made, both parties shall have an opportunity to take part in settling it. And the two modes prescribed, one by settling the exception during the progress of the trial in the presence of both parties, and annexing it to the judgment roll; the other by a subsequent statement in the mode designated, afford an orderly and convenient mode of accomplishing, that end.”

The above language is quoted as being expressive of our own view in relation to our practice on appeal. It. will be observed that the above bill of exceptions does not contain, nor is it stated with, any evidence or other matter contained in the transcript. It does not refer in any manner to any such evidence or matter. It does not appear from the bill of exceptions, or even from the transcript, that the evidence which the transcript contains was all the evidence upon which the court ruled, or that it was settled by the judge, or that both parties had the same opportunity for securing a correct presentation or took part in the settlement thereof. We must therefore conclude that the evidence set forth in the-transcript is not any part of the bill of exceptions, and therefore no part of the judgment roll. The transcript does not show any compliance with, or attempt to comply with, section 119 of • the Code of Civil Procedure, in relation to statements on appeal. There is, therefore, no such statement. If, therefore, the appellants rely upon their bill of exception, the evidence cannot be considered in connection therewith, for it is not any part of the judgment roll. If they rely upon the other position taken in their brief, that the final decision in the case is deemed to have been excepted to, and that the granting of the non-suit was such a decision, then for the reasons that the evidence is no part of the judgment roll, and that there is no statement on appeal, the evidence cannot be considered. The bill of exceptions is also defective, in that it does not particularly state the point of the exception, as required by section 281 of the Code of Civil Procedure. We can see no error in the judgment roll. When nothing appears to the contrary, the decision of the court will be presumed to be correct. Therefore, when the court grants a non-suit, and the evidence introduced does not appear or cannot be considered, it will be presumed that the plaintiff failed to prove a sufficient case for a jury. The above reasons are sufficient for the dismissal of the appeal. But in order to aid in the settlement of the practice, some other questions presented by the arguments of counsel will be briefly considered. It is argued by appellants that under the organic act they are entitled to have the cause reviewed upon the showing made by the transcript, notwithstanding the provisions of the Code of Civil Procedure in relation to appeals. According to appellants’ brief, the provision of the organic act which is relied upon to support this position is as follows: “ Bills of exception and appeals shall be allowed in all cases from the final decision of said district courts to the supreme court.”

It will be seen by reference to section 9 of said act, containing the above language, that the sentence in which the same appears concludes with the additional language, “under such regulations as may be prescribed by law.”

The same instrument also provides for a legislative assembly. The words, “such regulations as may be prescribed by law,” refer to regulations to be made by the legislative assembly of the territory. Under this provision the legislative assembly may fix the time and prescribe the methods by which appeals may be taken, so long as such regulations do not amount to a denial of the right conferred by the organic act. The provisions of the legislative assembly in relation to appeals are reasonable and sufficient for the purpose. The organic act is not, therefore, infringed by requiring the appellants to comply with the provisions of the Code of Civil Procedure, in relation to the method therein prescribed, regulating appeals.

It is also contended, by respondents, that a motion for a new trial was necessary, and that therefore the evidence should have been presented in a statement on such a motion. Section 284 of the Code of Civil Procedure defines a new trial as “ a re-examination of an issue of fact in the same court, after a trial and decision by a jury, court or referee. ” It contemplates, therefore, a case in which evidence has been submitted to, and has been passed upon by, the proper tribunal provided by law to try an issue of fact. By section 241 of the Code of Civil Procedure, “the trial of an issue of fact must be by a jury, except in actions which involve the settlement of accounts, unless waived by the parties.” “A judgment of non-suit may be entered,” under the fifth subdivision of sec. 234 of the said act, “by the court, upon motion of the defendant, when, upon the trial, the plaintiff fails to prove a sufficient case for a jury.” The jury, therefore, which under the law is the tribunal chosen to try the cause, is prevented therefrom by the action of the court, not acting as having authority to try the issue, but by reason of its general powers as a court to try matters of law, as well as by the express provision of said subdivision of sec. 234. There never was, therefore, a trial of the issue by the proper tribunal, and therefore a motion for a new trial is not, in such a case, contemplated by the code. There never was a trial by a jury because, in the judgment of the court, “the plaintiff failed to prove a case for the jury.” There was not a trial by the court because a jury was not waived, but was the tribunal chosen to try the issue. It was, therefore, by its power as judge of the law applied to the evidence introduced by plaintiffs that the court granted the motion of non-suit and took the case from the jury. This may perhaps be better illustrated by reference to the practice which obtained in England in the same class of cases. Under that practice, what is now provided for by said subdivision of sec. 234, in relation to non-suit, was taken advantage of by what was called a demurrer to evidence. This took place when a party disputed the legal effect of the evidence offered. It was analogous to a demurrer in pleading. It was-a virtual declaration by the party from whom it came, that he would not proceed, because the evidence offered on the other side was not sufficient to maintain the issue. Stephens on Pleading, p. 90.

The motion for a non-suit under the subdivision of section 234, and the demurrer to evidence, if not precisely similar, bear a close analogy. “ A demurrer to evidence is analogous to a demurrer in pleading.” Same reference. We are therefore to conclude that the action of the court in granting a non-suit, upon the ground that the plaintiff has failed to prove a sufficient case for a jury, is as much a decision upon a matter of law as its action in sustaining a demurrer to a pleading. Such a decision, therefore, does not come within the meaning of trial as defined by the code, and such a motion, therefore, could not be properly made as part of the proceeding necessary to present this case for review upon the evidence already in the case. It is desirable that a uniform practice should be enforced. The statute has provided such a method, adapted to the different kinds of judicial proceedings. The only practical mode of securing uniformity in the practice is by requiring a strict adherence to these methods. Eor the purpose of aiding in the furtherance of this object, we will now say that, in our opinion, the method to be pursued in bringing up the evidence, in such cases as the one at bar, for revision, is by statement upon appeal. A statement on motion for a new trial is improper, as such, a motion, after granting a non-suit for the reason that the plaintiff has failed to prove a sufficient case for a jury, is not contemplated by the statute. The objection to the action of the court in granting such non-suit cannot be made until after the rendition of the decision. And such an objection is not an exception as that term is defined by the statute. The evidence can only be made a part of the judgment roll by having it settled in a bill of exceptions. In a case where such motion for non-suit is refused, we are of the opinion that the evidence can be brought up either in a bill of exceptions or in a statement upon appeal. The ruling in .such a case is made both during the trial and before the rendition of the verdict or decision. By the word decision in its connection in section 219, we understand the legislature to indicate the final decision of the court.

The judgment is affirmed, with costs.