Carr, Ryder & Adams Co. v. Closser

• Decision Date: 11 March 1901
• Citation: 63 P. 1043,25 Mont. 149
• Parties: CARR, RYDER & ADAMS CO. v. CLOSSER et al.
• Court: Montana Supreme Court

63 P. 1043

25 Mont. 149

CARR, RYDER & ADAMS CO. v. CLOSSER et al.

Supreme Court of Montana

March 11, 1901

Appeal from district court, Deerlodge county; Welling Napton. Judge.

Action by the Carr, Ryder & Adams Company against Floyd Closser and another. Findings in favor of plaintiff were entered, and from an order granting a new trial the plaintiff appeals. On motion to strike out from the transcript notice of intention to move for a new trial. Motion granted.

McHatton & Cotter, for appellant.

Walsh & James and H. P. Napton, for respondents.

PIGOTT, J.

Findings in favor of plaintiff and against the defendants having been entered in the court below, the defendants moved for a new trial, which was granted. The plaintiff has appealed from the order granting it. It now moves this court to strike from the transcript the notice of intention to move for a new trial containing it, on the ground that the notice is improperly included therein. It appears that the clerk of the court below inserted in the transcript a copy of the notice of intention to move for a new trial, without any request therefor upon the part of the plaintiff. The notice is not made part of any bill of exceptions or statement of the case on motion for a new trial; nor is it a constituent part of the judgment roll provided for and defined in section 1196 of the Code of Civil Procedure; neither is it in the absence of a bill of exceptions or statement on motion for a new trial, one of the papers required by sections 1176 and 1738 of the Code of Civil Procedure to be furnished by copy to this court. It is, therefore, not a part of the transcript or record on appeal, and must be stricken out. It is, therefore, ordered that the copies of the notice of intention to move for a new trial, which appear twice in the transcript, be stricken therefrom. Motion granted.

MILBURN, J., concurs.

BRANTLY, C.J., having tried the cause in the court below, takes no part in the foregoing opinion.