Emerson v. McNair , 28 Mont. 578 ( 1903 )

ME. COMMISSIONER CLAYBEEG-

prepared the opinion for the court.

This is an appeal from an order setting aside a judgment taken against the defendants by default.

After a hearing of the appeal it appeared to the court, from an examination of the record, that certain important points involved in the case had not been noticed by counsel, either in their briefs or argument. The court thereupon stibmitted eight questions for reargmnent, among which v7as the following : “Are all of the records' and papers necessary to the hearing of this appeal in the record, and, if so, are they brought up in the proper manner?” All the questions which were thus submitted were argued by counsel with zeal and ability, but, under our view of the case, none of such questions can be considered by this court, except the one above quoted.

The Constitution grants appellate jurisdiction to the supreme court, to be exercised under “such regulations and limitations as may he prescribed by law.” (Constitution, Art. VIII, Sees. 2, 3 and 15.) In pursuance of this grant, and as furnishing methods for the exercise of the jurisdiction granted, the legislature has enacted statutes providing how appeals may be taken, determining of wliat the record on such appeal shall consist, and how such records shall be certified to this court. Substantial compliance with these provisions is necessary to give this-court the right to exercise the jurisdiction granted. (Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.)

Therefore a brief reference to some of these statutory provisions, as to the contents of the record on appeal, and how it must be certified to this court, is important.

Section 1736, Code of Civil Procedure, provides that, on an appeal from a final judgment, “the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case, upon which the appellant relies.”

Section 1738 provides that, on an appeal from an order granting or refusing a new trial, “the appellant must furnish the court with a copy of tbe notice of appeal, of tbe order appealed from, and of tbe papers designated in Section 1176' of tbis Code.”

Section 117 6 provides: “Tbe judgment roll, and tbe affidavits, or bill of exceptions or statement, as tbe case may be, used on tbe bearing, with a copy of tbe order made, shall constitute tbe record to be used on appeal from tbe order granting or refusing a new trial.”

Section 1737 provides that, on appeal from an order except an order granting or refusing a new trial, “the appellant must fumisb tbe court with a copy of tbe notice of appeal, of tbe judgment or order appealed from, and of papers used on tbe hearing in tbe court below.”

Tbis court has held that, upon an appeal which requires tbe judgment roll to be a part of tbe record, such judgment roll must be certified up as an entity, and that it is not sufficient that all or any part thereof be copied in a bill of exceptions or statement on motion for a new trial, although such bill of exceptions or statement is contained in tbe record on appeal. (Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.)

■ Tbe case at bar is an appeal from an order other than one granting or refusing a new trial. Tbe statute does not require tbe judgment roll as such to be made a part of tbe record on such appeal, and therefore it is not properly a part thereof. Tbe statute provides that tbe record upon such an appeal shall consist of “a copy of tbe notice of appeal, tbe judgment or order appealed from, and of tbe papers used on tbe bearing in tbe court below.”

Section 1739 provides that “tbe copies provided for in tbe last three sections must be certified to be correct by tbe clerk or tbe attorneys.”

Tbe statute does not seem to provide any specific method for certifying to tbis court tbe fact as to what papers were “used on tbe bearing in the.court below.” Tbis court has, however, said, “Tbe district court clerk bad no' authority, under Section 1739, to certify what evidence, documentary or oral, tbe court bad before it on tbe bearing of tbe motion” (State ex rel. Pierson v. Millis, 19 Mont. 414, 48 Pac. 773) ; and in tbe case of Rumney Land & Gattle Co. v. Detroit & Montana Cattle Co., 19 Mont. 557, 49 Pac. 395, tbis court uses tbe following language : “Under tbe Code of Civil Procedure of 1895, on appeal from an order, tbe only proper mode of bringing up for consideration tbe evidence relied on, whether oral or written, used or before tbe court on tbe bearing of tbe motion for tbe order, is by a bill of exceptions; and unless such evidence has been included in, and made a part of, tbe record, by bill of exceptions taken in pursuance of, and prescribed in, said Code, it is not, and cannot be, considered as properly identified on appeal.”

In State ex rel. Pierson v. Millis, supra, Rumney Land & Cattle Co. v. Detroit & Montana Cattle Co., supra, and Beach v. Spokane Ranch & Water Co., 25 Mont. 367, 65 Pac. 106, it was stated by tbe court, by Way of argument merely, that tbe papers used by tbe court below might be identified by tbe certificate of counsel. Tbis court, however, considered the correctness of these statements in tbe case of Cornish v. Floyd-Jones, 26 Mont. 154, 66 Pac. 838, and used tbe following language: “We take occasion now to say that we doubt whether that section (1739, Code Civ. Proc.) is susceptible of tbe construction assumed in these cases to be proper. We think tbe authority given by it extends no further than to permit counsel by their certificate to obviate tbe necessity of a certificate by tbe clerk as to tbe correctness of tbe copies contained in tbe transcript. As was held in tbe first two cases cited, tbe clerk may not certify tbe papers as those used, or tbe only ones used, on tbe bearing. Neither, in our opinion, may tbe attorneys do so. We shall therefore not feel bound by these cases when tbe point properly arises.” Tbe point arises directly in this case, and we apply tbe doctrine here announced.

We are therefore of tbe opinion that, on appeal from an order like tbe one at bar, tbe only method by which tbe papers used by tbe court below on tbe bearing may be certified to tbis court as tbe pajiers used on the hearing is hy incorporating the same in a bill of exceptions.

The bill of exceptions in this case recites that the records and files in the action were offered and used on the hearing, but neither the complaint, summons, motion for cost bond, nor the proposed answer is incorporated therein. These papers are therefore not properly before* the court. Compliance by appellant with “such regulations and limitations as may be prescribed by law” being necessary to give this court jurisdiction, of an appeal, without substantial compliance therewith jurisdiction does not attach. As well said by Judge Knowles, in the case of Rader v. Nottingham, Mont. 151: “Holding, as wa do, that we have no jurisdiction to determine the issue presented in this appeal, any judgment or order that we might render thereon would be void. Not desiring to cumber our records with a void judgment or order to vex the court below with, we must dismiss this appeal on our own motion.” This language is quoted with approval in the case of State ex rel. Pierson v. Millis, supra.

In our opinion, inasmuch as the papers used upon the hearing in the court below are not properly certified to this court, the appeal must be dismissed, under the piovision of Section 1140 of the Code of Civil Procedure.

Per Curiam. — Eor the reasons stated in the foregoing opinion, the appeal is hereby dismissed.

It is the opinion of this court that it is important that the practice in perfecting appeals to this court be permanently settled in accordance with the provisions .of the statute1.