Frost v. O'Neil , 4 Mont. 226 ( 1882 )

Q-albraith, J.

This is an appeal from a judgment of non-suit, in an action to quiet title.

Upon examination of the record before us, we find that it purports to be a statement and bill of exceptions. There does not appear to have been at any time an exception taken to the order sustaining the- motion for a non-suit, as provided in sec. 279 of the Code of Civil Practice, •which is the only kind of specific exception recognized in our practice.

A statement of the pleadings, evidence, motion for non-suit, order sustaining the same, and judgment thereon, and what purports to be a “statement and bill of exceptions,” was presented to and signed by the judge as correct, four days after the trial. But this is not an exception as provided by law. The only exception appearing in the record is an exception to the action of the court in sustaining an objection to the admission of the declaratory statement in evidence.

But this exception is defective, if in no other particular, in that it does not designate the point of the objection.

But we have already held, in the case of Kleinschmidt et al. v. McAndrews et al., which was affirmed upon the rehearing in an opinion rendered at this term, that the only proper method of bringing up a judgment on a non-suit for review is by statement on appeal. There is no such statement before us in the record. Sec. 419 of the Code of Civil Procedure.

In. addition to the reasons advanced in the opinion referred to, we will add the brief one which follows: Section 279 of the Code of Civil Procedure defines an exception to be “an objection taken at the trial to a decision upon a matter of law, .... from the calling of a case for trial to the rendition of the verdict or decision.”

The section following, 280, provides what “are deemed to have been excepted to,” among which is enumerated “the final decision in an action or proceeding.”

The order of court sustaining the motion for a non-suit is certainly the “final decision in the action.”

Sections 281, 282 and 816 provide the method for preparing an exception, and what it shall contain. And when so prepared, it is called a bill of exceptions'. Certainly the language employed in sections 281, 282 and 816 is only applicable to an exception as defined in sec. 297, and not the phrase “are deemed to be excepted to,” used in sec. 280.

The code provides three methods for bringing evidence before this court: 1st, in a bill of exceptions, as provided in the foregoing jisections; 2d, by a statement on motion for a new trial; 3d, by statement on appeal.

These three methods are fully adequate for the purposes for which they were intended. They afford a plain, easy and safe guide in all cases.

Being provided by the law-making power, we think also the maxim applies, “expressio unins, exclusio alterius.”

The order sustaining the motion for a non-suit being, as we have noticed, the “final decision,” it is “deemed to have been excepted to,” as provided in sec. 280, and an exception, as provided in sec. 279, cannot be taken thereto.

Therefore the evidence upon which it is ordered cannot come before this court in a bill of exceptions. As we have seen in the case of Kleinschmidt et al. v. McAndrews et al., a motion for a new trial is not necessary. Nor, indeed, could there be a motion for a new trial on the evidence already in the case, for a trial as provided by the code never was had when the court grants a non-suit.

Therefore the evidence cannot come before us in a statement on a motion for a new trial The only remaining means provided by the code is by a statement on appeal, which we hold to be the proper method for bringing up the evidence upon which the court below has ordered a non-suit.

Judgment affirmed, with costs.

Judgment affirmed.