Steuffen v. Jefferis , 9 Mont. 66 ( 1889 )

Bach, J.

Judgment was rendered in the court below in favor of the plaintiff and against the defendant, and defendant made a motion for a new trial, which motion was denied.

The order denying the motion for a new trial cannot be considered in this court, against the objection of respondent: First, because the so-called statement was never certified to by the judge as having been allowed by him. (See Scherrer v. Hale, ante, page 63, decided at this term of court, and cases cited.) Second, because the defendant has not properly appealed from the order denying a new trial.

The notice of appeal is as follows: “You, and each of you, are hereby notified that the defendant and the intervenor in the above-entitled action hereby appeal to the Supreme Court .... from the judgment, .... and all other orders of said court,” etc.

The order denying a motion for a new trial is one from which an appeal may be taken directly; but a litigant, wishing to appeal from such order, must give notice thereof, and his notice of appeal must direct the attention of the adverse party to the fact that such order will be the subject of review in the appellate court. (See Day v. Callow, 39 Cal. 593; Sperling v. Calfee, 7 Mont. 514.) This court will not consider the order denying the new trial.

The statement in the record cannot be considered as a statement on appeal, because it has neither been allowed by the court, nor does it contain any certificate of the parties or their attorneys “that it has been agreed upon by them, and is correct.” (See § 435, p. 178, Comp. Stats.; Scherrer v. Hale, ante, page 63, decided at this term. See, also, Raymond v. Thexton, 7 Mont. 299, and cases cited.) Further: No brief has been filed by the appellant, calling our attention to any error contained in the judgment roll proper, and we must presume that there is none. Judgment and order denying a new trial are affirmed, with costs.

Liddell, J., and De Wolfe, J., concur.