Blessing v. Sias

• Decision Date: 22 July 1887
• Citation: 7 Mont. 103
• Parties: BLESSING v. SIAS.
• Court: Montana Supreme Court

7 Mont. 103

BLESSING

v.SIAS.

Supreme Court of the Territory of Montana.

July 22, 1887.

Appeal from district court, Lewis and Clarke county.

Action upon promissory note. The opinion states the case.

Chumasero & McCutcheon, for appellant.

Toole & Wallace, for respondent.

McLEARY, J.

This was a suit brought on a promissory note for $2,719, less $1,000 credit. The note was made on the thirteenth day of October, 1884, due in one year, and payable to Arthur W. Sias by Newkirk Bros. On the twenty-fourth of March, 1885, prior to maturity, Sias transferred and indorsed the note to Blessing. The note being unpaid, on twenty-seventh March, 1886, Blessing filed his suit against Newkirk Bros., and also against Sias, as indorser. In order to avoid his neglect of presentment and notice of non-payment, the plaintiff alleges a waiver thereof by Sias, by means of a letter written to him (Blessing) by Sias. Whether or not the letter, by its terms, amounted to a waiver of presentment and notice of non-payment, is the question involved in this cause here presented.

But we are met at the outset of this investigation by a preliminary question, in the shape of a motion to strike from the record all contained therein, except the judgment roll; that is to say, the statement on motion for a new trial. It is apparent from the record that no motion for a new trial was ever made in this case, and it is contended that the error alleged in the statement consists in the insufficiency of the evidence to support the findings, and, as the appeal was not taken until more than 60 days after the judgment, this statement should be stricken from the record as surplusage. “This court cannot review any question of fact, if there is no appeal from an order granting or refusing a motion for a new trial. The facts stated in the findings of the court must be regarded as true; and we cannot consider on this appeal the insufficiency of the evidence to support the findings.” Alport v. Kelly, 2 Mont. 344, 345; Chumasero v. Vial, 3 Mont. 379;Twell v. Twell, 6 Mont. 19, 20, 9 Pac. Rep. 537;Alder Gulch Con. Min. Co. v. Hayes, 6 Mont. 32, 9 Pac. Rep. 581;Porter v. Clark, 6 Mont. 247, 11 Pac. Rep. 638. On these authorities this motion must be sustained, and the statement stricken from the record.

We have, then, before us, the appeal from the judgment and the record containing the judgment roll alone. And it is laid down in our statute “an exception to the decision or verdict, on the...