Beach v. Spokane Ranch & Water Co.

• Decision Date: 21 March 1898
• Citation: 52 P. 560,21 Mont. 7
• Parties: BEACH et al. v. SPOKANE RANCH & WATER CO.
• Court: Montana Supreme Court

52 P. 560

21 Mont. 7

BEACH et al. v. SPOKANE RANCH & WATER CO.

Supreme Court of Montana

March 21, 1898

Appeal from district court, Lewis and Clarke county; Henry C. Smith Judge.

Action by Calvin Beach, by his guardian, E. Beach, and others against the Spokane Ranch & Water Company. From a judgment for defendant, plaintiffs appeal. Motion to dismiss appeal denied.

McConnell & McConnell, for appellants.

Sanders & Sanders, for respondent.

PIGOTT J.

Motion to dismiss appeal. Judgment was entered against defendant on July 3, 1897. On October 11, 1897, the court made the following order, which was entered on the minutes: "On motion of counsel for defendant, and by consent of plaintiffs, court this day granted thirty days' additional time to defendant in which to prepare, serve, and file statement on motion for new trial and bill of exceptions herein." December 28, 1897, plaintiffs moved the court to correct the order of October 11th by striking out the words, "and by consent of plaintiffs." Upon the hearing of the motion plaintiffs claimed that the order was irregular, and was made without their knowledge or consent. The motion was denied. Evidence adduced upon the bearing is brought here by bill of exception taken to the order denying the motion. Defendant moves to dismiss the appeal upon three grounds:

1. It is urged that the order is not appealable. Subdivision 2 of section 1722 of the Code of Civil Procedure authorizes appeal from any special order made after final judgment. Upon authority of Clarke v. Gonu, 2 Mont. 538; Mining Co. v. Weinstein, 7 Mont. 346, 17 P. 108; Calderwood v. Peyser, 42 Cal. 110; Clark v. Crane, 57 Cal. 629; and Empire Gold Min. Co. v. Bonanza Gold Min. Co., 67 Cal. 406, 7 P. 810,--and for the reasons there assigned, we hold that the order is appealable. See, also, Hayne, New Trial & App. § 196. It is also insisted that, if the order of October 11th is subject to appeal, the subsequent order denying a motion to correct or modify it is not appealable. The general rule is that, when an appeal can be taken from an order, a subsequent order, denying a motion to change the first order, is not appealable. But we are of opinion that it does not apply when the original order was irregularly issued, or was made exparte, and without notice. The principle of this exception to the rule was recognized in Mayor, etc., of City of San José v. Fulton, 45 Cal. 316, and is approved in Hayne, New Trial & App. § 199, subd. 4. In the case at bar there is a controversy in respect of the order of October 11th, plaintiffs insisting that it was made without their knowledge or consent, and irregularly, while defendant contends to the contrary. We think this is sufficient to establish prima facie the appealable character of the subsequent order.

2. The second reason stated as a ground for dismissing the appeal is "that there is no bill of exceptions herein, for the reason that the objection is made upon a matter of fact, and an exception does not lie thereto." Even if this were true, it would...