Coquard v. Weinstein

• Decision Date: 25 March 1895
• Citation: 39 P. 849,15 Mont. 554
• Parties: COQUARD v. WEINSTEIN.
• Court: Montana Supreme Court

39 P. 849

15 Mont. 554

COQUARD v. WEINSTEIN.

Supreme Court of Montana

March 25, 1895

Appeal from district court, Deer Lodge county; Frank H. Woody Judge.

Action by L. A. Coquard against Tessie Weinstein, administratrix. From a judgment rendered, defendant appeals. Motion by plaintiff to strike from the record the bill of exceptions. Denied.

Cole & Whitehill, for appellant.

McConnell Clayberg & Gunn, for respondent.

DE WITT, J.

The respondent moves to strike from the record the bill of exceptions therein contained, for the reason that the judge who signed and settled the same had no jurisdiction so to do. The case was tried June 21, 1893. On June 23d the court made an order granting 30 days' time to prepare and file a bill of exceptions. The defendant (the appellant) served a bill of exceptions on respondent's counsel on July 17 1893. They filed the bill of exceptions with the clerk for the judge on July 23, 1893. On the same day the respondent's counsel filed with the clerk their objections and exceptions to the bill of exceptions. The case was tried by Judge Woody, of the Fourth district, sitting for Judge Brantly, in the Third district. The bill of exceptions was finally settled by Judge Woody, October 23, 1893. The terms of the Third district court were held commencing on the first Mondays of June, September, and November. This case was tried during the June term. That term lasted until September 2d, when it was adjourned for the term.

Counsel for respondent, in moving to strike out the bill of exceptions, rely upon section 294, Code Civ. Proc., which is as follows: "All bills of exceptions shall be reduced to form, unless noted by the clerk, and signed during the term in which the same is tried, except in cases where the counsel consent, or the judge, by an entry on the record, direct that it may be prepared in vacation, and signed nunc pro tunc. The bill of exceptions must be signed by the judge who tried the cause, and if he has inadvertently omitted to sign a bill of exceptions, he may, on motion, be permitted to do so although his term of office has expired, or said office has otherwise become vacant." It was the proper practice for the respondent to note his objections to the settling of the bill of exceptions, and have the same made a part of the record. Sweeny v. Railway Co., 11 Mont. 34, 27 P 347; Arnold v. Sinclair, 12 Mont. 261, 29 P. 1124. One objection was that the term at which the case was tried expired and adjourned long prior to the service of said proposed bill of exceptions upon respondent's counsel. The record does not sustain this objection, for, as observed above, the bill of exceptions was served on the 17th of July and filed on the 23d, and the term did not finally...