Miners Nat. Bank v. Proulx

This suit involves the determination of various interests and rights in and to a large ditch, known as Creeklyn Ditch, taking water from the Jefferson river. All the litigants except the defendant Grace B. Woods, were owners in various proportions of the ditch and asserted rights in the water conveyed therein.

In April, 1944, the suit was tried before the district court sitting without a jury.

On March 20, 1945, the district court's decree was made and entered adjudicating the respective rights, privileges, duties and liabilities of the various parties to the action. Incorporated in the decree were fourteen findings of fact and six conclusions of law made by the court concluding with, "Let Judgment and Decree be entered in accordance with the foregoing Findings of Fact and Conclusions of law."

On April 16, 1945, the defendants Thomas Kesl and Miners National Bank of Butte, excepted in writing to certain of the court's findings and conclusions contending that they were defective in the particulars specified.

On April 25, 1945, the district court denied defendants' exceptions and made the following minute entry order thereon, viz.:

"The exception of the defendants Thomas Kesl and Miners National Bank of Butte, to the findings of fact and conclusions of law contained in the decree heretofore entered herein having been presented to the Court.

"Now the Court does refuse to make any of the requested changes in said findings and conclusions and said defendants are given exceptions to such refusal and it is ordered that said defendants be and they are given 60 days in addition to the time allowed by law within which to prepare, serve and present for settlement bill of exceptions thereupon."

On June 15, 1945, defendants served and filed a proposed bill of exceptions to the action, ruling and decision of the court in overruling and denying defendants' exceptions to the court's findings and conclusions.

On June 19, 1945, the trial judge settled and allowed the proposed bill as to all of the proceedings, documents on file pertaining to the exceptions taken by the defendants to the findings of fact and conclusions of law for defects therein, "but not including any proceedings, papers or files done, taken, filed or entered prior to the entry of findings of fact, conclusions of law and decree in said cause." Thus in his certificate the trial judge carefully specified that the bill of exceptions which he allowed does not include any proceedings, papers or files done, taken, filed or entered prior to March 22, 1945, being the date of the entry of the findings, conclusions and decree in said cause.

Defendants have appealed to this court from the final decree and judgment of March 22, 1945, and from the minute entry order of April 25, 1945, refusing to make the changes in the said findings and conclusions as requested by defendants.

Appellants' brief sets forth fourteen specifications of error. Thirteen of said specifications of error are predicated upon the proceedings had at the trial of the cause.

At pages 102 to 122, both inclusive, of the transcript on appeal, is incorporated a purported transcribed report of the proceedings had upon the trial of the cause to which is attached a certificate of the court stenographer wherein he certifies, "I took full and complete shorthand notes in writing of proceedings had upon the trial, and that after the close of the trial of said cause, I printed in type my said shorthand notes taken by me as aforesaid; that the above and foregoing is a full, true and correct reproduction printed in type and a full, true and correct transcript of the proceedings in the case, and I certify the same to be a true transcript of the proceedings then and there had in the case."

Respondents filed a timely motion for an order to strike from the transcript on appeal herein all that portion thereof contained on pages 102 to 122, both inclusive, on the ground that none thereof has been incorporated in any bill of exceptions.

The proceedings so incorporated in the transcript are not a[1] part of the judgment roll (sec. 9409, Rev. Codes of Montana, 1935) and, without first being settled in the bill of exceptions they may not properly be included in the transcript on appeal nor reviewed by this court. Sec. 9390 Rev. Codes.

"Under the provisions of section 9390, a party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must have the same incorporated in a bill of exceptions, settled as therein provided. Such being the case, this court cannot now consider the evidence and proceedings at the trial * * *." In re Bitter Root Irrigation District,67 Mont. 436, 442, 218 P. 945, 947.

That part of the record set forth at pages 102 to 122, both[2] inclusive, being matter which is improperly incorporated in the transcript on appeal and being matter which is not properly authenticated is hereby ordered stricken.

The proceedings at the trial not having been incorporated in a[3] bill of exceptions, this court is precluded from reviewing such proceedings or considering the thirteen specifications of error predicated thereon.

The remaining specification, being No. XI, asserts that, "The Court erred in entering judgment contemporaneously with entering the findings of fact and conclusions of law, and in not permitting the period of time to elapse after the Court's findings were filed and before entering the judgment." No authority is cited by appellants to sustain their contention respecting specification No. XI. We find no merit in the specification nor in the appeal.

The decree and judgment of the district court is affirmed with the costs to be taxed against appellants.

Mr. Chief Justice Lindquist and Associate Justices Morris and Cheadle concur.