274 P. 844 (Mont. 1929), 6390, Loncar v. National Union Fire Ins. Co. of Pittsburgh, Pa.

Docket Nº:6390.
Citation:274 P. 844, 84 Mont. 141
Opinion Judge:ANGSTMAN, J.
Attorney:Smith & Eickemeyer and W. F. O'Leary, all of Great Falls, for appellant. Freeman, Thelen & Freeman, of Great Falls, for respondent.
Judge Panel:CALLAWAY, C.J., and MATTHEWS, GALEN, and FORD, JJ., concur.
Case Date:February 08, 1929
Court:Supreme Court of Montana

Page 844

274 P. 844 (Mont. 1929)

84 Mont. 141




No. 6390.

Supreme Court of Montana

February 8, 1929

Rehearing Denied March 6, 1929.

Appeal from District Court, Cascade County; Wm. E. Carroll, Judge.

Action by Marko Loncar against the National Union Fire Insurance Company of Pittsburgh, Pa. Judgment was entered for plaintiff, and, from an order granting new trial conditionally, plaintiff appeals, and defendant cross-assigns error. Order reversed, and verdict and judgment permitted to stand.

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Smith & Eickemeyer and W. F. O'Leary, all of Great Falls, for appellant.

Freeman, Thelen & Freeman, of Great Falls, for respondent.


This action was brought to recover damages under a fire insurance policy. The policy was issued by the defendant and covered a dwelling house, furniture, and a small barn belonging to plaintiff, all of which were destroyed by fire. The policy was issued for $3,000, which is the amount demanded in the complaint. The answer denied liability in any amount in excess of $500, which was alleged by the answer to be the cash value of the property. It also set up three affirmative defenses. The reply denies all of the affirmative allegations of the answer.

The trial was had before Hon. W. H. Meigs, sitting with a jury. A verdict for plaintiff was rendered in the sum of $2,500, and judgment entered on the verdict. A motion for new trial was heard before Hon. Wm. E. Carroll, Judge Meigs having been disqualified. The motion was granted upon the following condition: "Unless the plaintiff, within five (5) days after notice of the order remits and agrees to accept in satisfaction of said judgment, as and for the cash value of the property insured at the date of its destroyal by fire, the sum of $900; in which event and upon the satisfaction of said judgment this cause shall not be held for further or other proceedings." This appeal was taken by plaintiff from that order.

At the time of the arguments in this court, defendant presented a motion to strike from the transcript all of what appears to be the stenographer's report of the evidence introduced at the trial, on the ground that it was not settled in a bill of exceptions as provided in section 9390, Revised Codes 1921, and does not contain a certificate of the court as required by section 9402, Id.

Counsel for plaintiff assert that defendant has waived the right to object to the record on appeal. With this we agree. Section 9747 provides: "All objections to the record and brief of appellant shall be deemed waived unless a motion to dismiss is made because thereof, except such as will prevent a fair hearing, consideration, and decision of the appeal on its merits; and as to any such objection the court may, in its discretion, permit a compliance with the provision of the law or rule of court violated, within such time and upon such terms as may be just." As hereinbefore stated, the motion under consideration was not filed until the day of the argument. It failed to meet the requirements of Rule 14, subd. 3, of this court.

Counsel for both parties in their briefs treated the record as correctly setting forth the evidence. No contention is now made that the testimony is not accurately set forth in the record.

The facts in this case are not substantially different from those appearing in the case of Sevanin v. Chicago, etc., Ry. Co., 62 Mont. 546, 205 P. 825, wherein this court held that there had been a waiver of objections to the transcript, and said: "To take any other view than that of considering the transcript would be chasing a shadow at the expense of letting the substance escape." The motion to strike is accordingly denied.

The several assignments of error in plaintiff's brief raise the question of the correctness of the court's conditional order granting a new trial. It is contended by plaintiff that the evidence does not justify the action of the court in reducing the amount of the verdict from $2,500 to $900. In considering this question the same presumptions do not attend the act of the judge who granted the motion as if granted by the judge who tried the case. Judge Carroll, not having seen nor heard the witnesses, was governed in his consideration of this case by the same rules which govern this court on appeal. Marcellus v. Wright, 65 Mont. 580, 212 P. 299. If there is substantial

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evidence in the record supporting the verdict of the jury, its verdict should not be reduced and the judgment of the judge, who neither saw nor heard the witnesses, substituted for that of the jury, more especially so where, as here, there was no evidence upon which to base the order made by Judge Carroll conditionally granting the new trial, as hereinafter pointed out.

The record discloses that according to the terms of the policy the house was insured for $1,500, the furniture for $1,200, and the barn for $300. It limited the liability of the defendant to the actual cash value of the property at the time of loss or damage, and it also provided that the liability of the defendant should not exceed the cost of repairing or...

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