First National Bank v. Gebo , 46 Mont. 263 ( 1912 )

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In August, 1911, the First National Bank of Thermopolis commenced an action against S. W. Gebo, and caused a writ of attachment to be issued and levied upon certain property of the defendant. In October of the same year the State Savings Bank of Butte commenced an action against Gebo, and caused a writ of attachment to be levied upon the same property covered by the attachment in the first ease. In November the State Savings Bank intervened in the first action, and moved to discharge the writ of attachment issued in that action, upon the ground that the undertaking for the writ was not accompanied by the affidavit required in such cases by section 7195 of the Revised Codes. Thereafter the Thermopolis bank moved the court for permission to amend the undertaking by attaching thereto an affidavit by the sureties containing one of the recitals omitted from the affidavit attached to the undertaking in the first instance. Some time thereafter — the record does not disclose when — the trial court overruled the motion to amend, and sustained the motion to discharge the attachment. On January 15, 1912, the Thermopolis bank presented its bill of exceptions, and served a copy upon the attorneys for the State Savings Bank. On January 17, and before the time allowed for filing amendments to the proposed bill had expired, the district court settled, signed, and allowed the bill of exceptions. On February 3, 1912, the Thermopolis bank appealed from the order discharging the attachment. On February 27, 1912, the trial court by a supplementary certificate again settled and allowed the bill of exceptions. The clerk of the district court certifies that the transcript before us contains true and correct copies of the bill of exceptions, the supplementary certificate, and the notice of appeal.

At the outset we are asked to affirm the order from which the [1] appeal is sought to be taken, upon the ground that the appellant has not furnished this court with the record required by section 7113, Revised Codes, and certified as required by section 7115 of the same Codes. Section 7113 provides that upon an appeal of this character the appellant must furnish the supreme court with a copy of the notice of appeal, a copy of the order appealed from, and a copy of each of the papers used upon the hearing in the court below. Section 7115 provides that the copies mentioned in section 7113 must be certified to be correct by the clerk or the attorneys. There is not any certificate whatever by the attorneys, and the clerk in his certificate does not mention the papers used upon the hearing in the court below or the order from which the appeal is taken. The notice of appeal recites that the appeal is from an order made on the 18th day of December, 1911; but the record fails altogether to disclose when the order was in fact made. We are asked to review an order of which we do not have any authenticated copy. Indeed, from the beginning the plain provisions of the Code have been entirely disregarded by this appellant at every step of the proceeding.

This court has been most liberal in construing the statutes, to the end that every appeal may be heard on its merits; but we cannot, under the guise of liberal construction, suspend the operation of the statute, or change the statute itself, in order to assist a litigant to perfect his appeal or get his case before us. The provisions of sections 7113 and 7115 are so plain that a failure to meet their requirements cannot be excused. Those provisions are mandatory, and were enacted in order that this court may know that the record presented to it contains correct copies of the papers which the statute declares must be before the court before it is authorized to review au order of this character. Furthermore, at the time respondent presented its brief the attention of appellant was called to the defects in the record, and yet it neglected for four months to take any steps to supply this court with a record upon which its appeal could be heard, and finally submitted the cause upon the record as described above.

The order is affirmed.

Affirmed.

Mr. Chief Justice Brantly concurs; Mr. Justice Smith, being absent, did not hear the argument, and takes no part in the foregoing decision.