Hale v. Belgrade Co.

• Decision Date: 09 October 1925
• Docket Number: 5801.
• Citation: 240 P. 371,74 Mont. 308
• Parties: HALE et al. v. BELGRADE CO., Limited, et al.
• Court: Montana Supreme Court

240 P. 371

74 Mont. 308

HALE et al. v. BELGRADE CO., Limited, et al.

No. 5801.

Supreme Court of Montana

October 9, 1925

Appeal from District Court, Gallatin County; George B. Winston Judge.

Action by Mary Barbara Hale and others against the Belgrade Company Limited, the Farmers' Bank of Belgrade, and others. Judgment for plaintiff, and the second-named defendant appeals. On motion to dismiss appeal. Motion denied.

George Y. Patten, of Bozeman, for appellant.

Walter Aitken, of Bozeman, for respondents.

C. A Spaulding, of Helena, amicus curiæ.

MATTHEWS J.

On August 4, 1925, plaintiffs filed written motion to dismiss defendants' appeal pending herein. The motion was duly noticed for hearing, and on September 18, 1925, was orally argued and submitted.

The record discloses that the appeal is from a judgment entered in favor of plaintiffs February 16, 1925, and that a bill of exceptions herein was duly settled, signed, and filed on June 2, 1925, but that no notice of appeal from the judgment was served or filed until the 27th day of June, at which time there was also filed the necessary undertaking on appeal. The appeal was therefore perfected on June 27, 1925.

On August 5, 1925, defendants filed in this court their transcript on appeal. Counsel for plaintiffs contends that under the provisions of chapter 19, Laws of 1925 defendants' time for filing their transcript expired with the expiration of the 60-day period from and after the settlement of the bill of exceptions. In opposition to the motion, counsel for defendants asserts that the act referred to is void, in that its enactment violated the provisions of section 23 of article 5 of the state Constitution, and that, therefore, rule 4 of the rules of this court still controls. The rule reads as follows:

"IV. Appeals in Civil Cases.

1. Record on Appeal. Appellant is charged with the duty of having the transcript perfected and filed with the clerk of the court in accordance with the statute and these rules.

2. Time of Filing. The transcript shall be filed by the appellant with the clerk of the court within 60 days after such appeal has been perfected; or the appeal will be subject to dismissal on motion of the adverse party; but if it appear that the delay has been without laches on the part of the appellant, his appeal will not be dismissed for such delay, until reasonable time has been allowed for filing the record."

The rule has the force of a statute. State ex rel. Nissler v. Donlan, 32 Mont. 256, 80 P. 244; State v. Kacar (Mont.) 240 P. 365, decided October 6, 1925.

Prior to the enactment of chapter 19, Laws of 1925, no legislative assembly of this state had undertaken to declare within what time the transcript on appeal should be filed in this court, and the matter was regulated solely by the rule quoted.

The act under consideration is entitled:

"An act to amend section 9746 of the Revised Codes of Montana of 1921, relative to the authentication of copies of appeals to the Supreme Court and concerning abbreviated records on appeal to the Supreme Court of Montana."

Section 9746 appears in the Revised Codes as follows:

"9746. Authentication of Copies-Abbreviated Record. All papers furnished to the Supreme Court on appeal shall, before the transcript is filed therein, be certified by the clerk or by the attorneys in the case to be correct, and must be accompanied with a certificate of the clerk or attorneys that an undertaking on appeal, in due form, has been properly filed, or that a deposit has been made as provided for in section 9741, or the stipulation of the party waiving an undertaking or deposit. The appellant may present to the Supreme Court, or any Justice thereof, a copy of the record from which are omitted those parts thereof which appellant believes to be immaterial to any question arising on the appeal, and thereupon, if it shall appear, prima facie, that the parts omitted are so immaterial, the court or Justice, shall make an order allowing such abbreviated record to be served and filed as the transcript on appeal, and directing the clerk of the district court to certify to such transcript, which order shall save to the respondent the right to suggest a diminution of the record in case he can show that without the parts omitted the appeal cannot be fairly and fully heard and determined. The certificate of the clerk of the district court shall refer to such order of the Supreme Court or Justice."

After declaring that section 9746 "be and the same is hereby amended as follows," section 1 of the act copies verbatim section 9746, with the following addition:

"In all cases where no bill of exceptions is presented for settlement in the trial court the party appealing shall file his transcript in the Supreme Court within sixty days after such appeal is perfected; and in cases where a bill of exceptions is settled in the trial court the party appealing shall file his transcript in the Supreme Court within sixty days after such bill of exceptions has been settled."

Section 2 declares that all acts and parts of acts in conflict with the provisions of this act are repealed.

It will be noted that the above provision does not attempt to change the rule in cases where no bill of exceptions is presented for settlement, but, by the second clause it requires the filing of the transcript within 60 days after settlement of the bill of exceptions, regardless of when the appeal is perfected. It will also be noted that, while under the rule of court quoted, the court might relieve a party not guilty of laches, from the effect of failure to file within time, the legislative enactment lays down a hard and fast rule from which there can be no deviation or exception.

Defendants' appeal falls within the latter provision and, as their bill of exceptions was settled on June 2, this provision required the filing thereof on or before August 1, 1925. If the provision is valid, the motion must be granted, for it is only by the filing of a completed record within time that this court acquires jurisdiction to consider the appeal on its merits. Beck v. Holland, 28 Mont. 460, 72 P. 972; Featherman v. Granite County, 28 Mont. 462, 72 P. 972; Adams v. Bankers' Life Ins. Co., 13 Mont. 222, 33 P. 192.

The further effect of this enactment, if valid, but which need only be stated here, is that, providing, as it does, for the filing of the transcript on appeal without regard to the time of the perfection of the appeal, it repeals by implication, or at least modifies, section 9732 of the Revised Codes, which permits an appeal to be taken from a judgment at any time within six months after entry of judgment. That such was not the intention of the Legislature would seem apparent from the fact that the same legislative assembly, within a few days after the passage and approval of this act, amended section 9732 without reference to this act, and without changing the time in which an appeal might be taken from a judgment.

Section 23 of article 5 of our Constitution reads as follows:

"No bill, except general appropriation bills, and bills for the codification and general revision of the laws, shall be passed containing more than one subject, which shall be clearly expressed in its title; but if any subject shall be embraced in any act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be so expressed."

The question for our determination is whether the title to the act under consideration sufficiently declares the purpose of the Legislature, disclosed in the body of the act, to fix the time within which transcripts on appeal shall be filed.

In his work on Constitutional Limitations (7th Ed.) page 202, Mr. Cooley discusses the title to legislative enactments as follows:

"The title of an act was formerly considered no part of it, and although it might be looked to as a guide to the intent of the lawmakers when the body of the statute appeared to be in any respect ambiguous or doubtful, yet it could not enlarge or restrain the provisions of the act itself, and the latter might therefore be good when it and the title were in conflict. The reason for this was that anciently titles were not prefixed at all, and when afterwards they came to be introduced, they were usually prepared by the clerk of the house in which the bill first passed, and attracted little attention from the members. They indicated the clerk's understanding of the contents and purpose of the bills, rather than that of the house; and they therefore were justly regarded as furnishing little insight into the legislative intent. Titles to legislative acts,

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