Gum v. Murray

• Citation: 6 Mont. 10
• Parties: GUM v. MURRAY and others.
• Decision Date: 09 January 1886
• Court: United States State Supreme Court of Montana

6 Mont. 10

GUM

v.MURRAY and others.

Supreme Court of the Territory of Montana.

Filed January 9, 1886.

Appeal from First district, Gallatin county. XHN

Luce & Armstrong, for appellants, Nelson Murray and others.

Vivion & Shelton, for respondent, Jacob Gum.

GALBRAITH, J.

This is an appeal from a judgment rendered against the appellant Nelson Murray, and from an order which, it is claimed, overruled his motion for a new trial. Upon the examination of what purports to be a statement on motion for a new trial, we do not find either a motion for a new trial, or a notice of such motion. After this statement we find in the record the following order: “And on the second day of January, 1885, said motion, coming on to be heard, was overruled, to which Nelson Murray duly excepted.” This order does not indicate what motion was overruled. There being no motion for a new trial, nor notice of such, so far as we can discover from the record before us, we cannot say that this order referred to a motion for a new trial. It refers to some former motion; but no motion of any kind whatever appears in the record before us. But even were we to say that this order did refer to a motion for a new trial, still the statement is fatally defective in that it contains no motion for a new trial, nor notice thereof as required by law.

In the case of First Nat. Bank of Helena v. McAndrews, 5 Mont. 251, S.C. 5 Pac. Rep. 279, this court said:

“That section [referring to section 287 of the Code of Civil Procedure] provides that the party intending to move for a new trial must, within ten days after the verdict of the jury or decision of the court, file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or the minutes of the court or a bill of exceptions or a statement of the case. These provisions of the statute must be substantially complied with before this court can be called upon to review the action of the lower court in overruling or sustaining a motion for a new trial. Unless there is a notice or motion designating the errors complained of, upon which the lower court has passed, there is nothing for this court to review. *** We cannot establish a precedent declaring that a decision upon a motion for a new trial may be reviewed in this court, when the record does not show that any motion for a new trial was filed in the lower court, nor that any notice of motion designating the errors complained of was filed or served upon the opposite party. *** The recital in the statement, which was made up after the notice of motion was or should have been filed, that the...