Butte Mining & Milling Co. v. Kenyon , 30 Mont. 314 ( 1904 )

ME. COMMISSIONER CLAYBEBGr

prepared the following opinion for the court:

Statement.

Appeal from- judgment in favor of defendants, and order overruling plaintiff’s motion for a new trial.

On and prior to May 8, 1894, the plaintiff was the owner and in possession of a certain quartz mill and machinery. On this day defendants; went into, possession under an agreement with plaintiff for the use thereof upon a stipulated rent. After the defendants had been in possession for some months, and on the 28th day of September, 1894, the mill was. destroyed by fire.

Plaintiff brings this suit for the purpose of recovering the value of the mill, and states his cause of action in two separate counts. In; the first count he alleges that defendants did willfully and recklessly place a damper in the smokestack connected with the fire box and combustion chamber, and did willfully and recklessly close such damper, which had the effect of forcing the fire products through cracks in the lining of the fire box and combustion chamber, and setting fire to the mill. The second count is based upon the alleged provisions of an oral lease, that defendants should return the mill in good condition and repair at the end of the term, and that through their negligence (alleged practically in the same manner as the negligence alleged in the first count) the mill was destroyed, causing a breach of the covenant of the lease, which rendered the defendants liable for the value of the mill.

Insueeiciency oe the Evidence. '

We have carefully examined the record in tbis case, and, after such examination, are convinced that testimony was offered by defendants tending to contradict all the allegations of the complaint in regard to tbe negligence alleged in the first count, and in regard to the terms of the lease alleged in the second count thereof. The evidence in the case is very, conflicting, and it would serve no useful purpose to enter into- a discussion of it in this opinion.. The rule of law in this jurisdiction is well settled, that where the evidence is. conflicting this court- will not consider the question of its- insufficiency to sustain the verdict or judgment-. (Nelson v. Great Northern Ry. Co., 28 Mont. 297, 72 Pac. 642; Hefferlin v. Karlman, 29 Mont. 139, 74 Pac. 201.)

Errors in Instructions.

Counsel for appellant assigns error to the giving of certain instructions requested by respondents. These errors cannot be considered, for the reason that the instructions excepted to are not before us. Instructions are a part of the judgment roll. (Section 1196, Code of Civil Procedure.) The judgment- roll must be certified to this court as an entirety. (Featheman v. Granite County, 28 Mont. 462, 72 Pac. 972.) These instructions do not appear in the judgment roll as certified to this court, but in the statement- on motion for a new trial. This is insufficient. (Featherman Case, supra.)

The clerk of the court below, in his original authentication of the record, did not certify that it contained copies of the instructions. After the hearing of the case, counsel presented an amended certificate of the clerk, and asked that it-be attached to the transcript on file. By this amended certificate the clerk certifies that the transcript contains “a true, correct and complete transcript” of certain papers (naming them), and then continues, “with instructions given in said cause, and contains all the papers which constitute and are included in the judgment roll in said action.”

(Decided June 13, 1904.)

Aside from the sufficiency of this paper as a certificate under the provisions of our statute* which we do' not find necessary to decide, and aside from the question whether or not it is presented to this court in such a manner as to he received, of which we have very serious doubt, but which we do not decide, this amended certificate does not in any way or manner aid the transcript in the defect above mentioned.

Errors in the Admission and Rejection oe Testimony.

Paragraph “c,” Subd. 3, Rule X, of this court provides that the brief shall contain “a brief of the argument, exhibiting a clear statment of the points of law or fact to be discussed, with a reference to the page of the record, and the authorities relied upon in the support of each, point.” Appellant’s brief contains fifty-two specifications of error, all of which are commented upon in the argument. The argument covers twenty-nine pages of the printed brief, and in only two instances is there any reference made to the page of the record, and these references are upon alleged errors which are immaterial. The record consists of 171 pages of printed matter. This court will not spend the time searching the record for errors when no reference is made thereto as provided by its rules.

Therefore the assignments of error upon the admission or rejection of testimony are not presented to this court* within the purview of the rule above announced, and will not be considered by the court.

We advise that the judgment and order appealed from be affirmed.

Per, Curiam.

Eor the reasons stated in the foregoing opinion, the judgment and order are affirmed.