Benham v. Lemhi Mining, Milling & Reduction Co. , 18 Mont. 591 ( 1896 )

PembertoN, C. J.

The respondent contends that this court cannot consider the appeal in this case, for the reason that the record nowhere contains any specification of errors.

Plaintiff’s notice of intention to move for a new trial is based £ £ on the ground of errors in law occurring at the ti ial and excepted to by the plaintiff.” An inspection of the record discloses that this is the only attempt at any specification of errors. The record contains nowhere any other pretense of a specification of errors. We are, therefore, at a loss to determine from an inspection of the record what errors ivere assigned and specified as grounds for a new trial in the court below, if in fact any errors were assigned.

The principal ground of error contended for in appellant’s brief is that the court refused to permit the plaintiff to introduce certain evidence, claimed to be rebuttal; but the respondent says in his brief that the plaintiff in opening the case, and in introducing his testimony in chief, went thoroughly into the case, including the plaintiff’s evidence and cause of action, as well as all matters of the defense set up in the answer, and that the evidence which plaintiff sought to introduce under the claim of rebuttal was substantially the same evidence which the plaintiff had introduced in his evidence in chief. But, however this may be, the record does not contain the evidence in chief introduced by the plaintiff, nor the evidence introduced by the defendant, which plaintiff offered to rebut, and which he complains that the court would not permit him to do.

Under these circumstances, if there were in the record sufficient specifications of errors to enable us to consider the case, still we could not determine whether the evidence sought to be introduced, and which was excluded by the court, was rebuttal or not. Under these conditions, and in view of the insufficient record in the case, the presumption is that the action of the court in the matters complained of was correct.

We are, therefore, of opinion that the judgment and order appealed from should be affirmed, and it is so ordered.

Affirmed.

Hunt, J., concurs. De Witt, J., not sitting.