Jordan v. Andrus

• Decision Date: 29 October 1901
• Citation: 66 P. 502,26 Mont. 37
• Parties: JORDAN et al. v. ANDRUS et al.
• Court: Montana Supreme Court

66 P. 502

26 Mont. 37

JORDAN et al. v. ANDRUS et al.

Supreme Court of Montana

October 29, 1901

Appeal from district court, Custer county; C. H. Loud, Judge.

Proceedings by W. A. Jordan and others against W. W. Andrus and others. From a judgement in defendants' favor, plaintiffs appeal. Dismissed.

Strevell & Porter and Geo. W. Farr, for appellants.

G. W Myers and Sydney Sanner, for respondents.

MILBURN J.

This cause is before the court upon the motion of the respondents to dismiss the appeal upon the grounds: "(1) That the transcript on appeal herein by the said appellants is not printed, nor made upon paper ten inches long by seven inches wide, nor are the typewritten pages thereof seven and one-half inches long by three and one-half inches wide, nor is said transcript otherwise or at all made in conformity with subdivision 1 of rule 6 of this court [57 P. vi.]. (2) That said transcript on appeal is not in conformity with subdivision 1 of rule 7 of this court [57 P. vi.], in this that the cover thereof does not state the title of this court or of said cause, or otherwise or at all conform to said rule in relation to covers in transcripts on appeal. (3) That said transcript is made out in a slovenly manner. *** (4) That the order of the district court from which this appeal is taken or sought to be taken, to wit, the order made and entered July 16, 1901, dissolving and vacating the temporary restraining order theretofore made in this action, is not an appealable order, within the meaning of sections 1722 and 1723 of the Code of Civil Procedure, as amended Feburary 28 1899, and an appeal does not lie from said order to this court."

The transcript is typewritten. Subdivision 1 of rule 6 (57 P vi.) requires transcripts to be printed. Is the rule abrogated and annulled by the act of the legislature approved March 9, 1901, known as "Senate Bill 101," and providing that all transcripts, documents, and papers filed in the supreme court in connection with any appeal taken and mentioned in the chapter in the Code of Civil Procedure upon appeals in civil actions may be printed or typewritten, at the election of the appellant? If the act is within the powers of the legislature, then the rule of this court opposed to it is null, and the motion to dismiss the appeal must be denied, so far as the first ground is concerned. This particular question is not treated of in any opinion of any court to which we have been referred, or by any of the learned writers, many of whose works we have examined. The constitution of this state vests the powers of government in three different and distinct departments,--the legislative the executive, and the judicial. It is not necessary to quote from the multitudinous authorities supporting the proposition that it is not lawful for any department, or officer thereof, to interfere with the power of any other department It is sufficient to refer to the constitution (article 4, § 1) and to State v. Smith, 23 Mont. 44, 57 P. 449. Section 3 of article 8 of the constitution of this state declares that "the appellate jurisdiction of the supreme court shall extend to all cases at law and in quit, subject, however, to such limitations and regulations as may be prescribed by law." Section 2 of the same articles also gives the legislature power to subject the appellate jurisdiction to "regulations" and limitations", and section 15 of the article is as follows: "Writs of error and appeals shall be allowed from the decisions of the said district courts to the supreme court under such regulations as may be prescribed by law." What is meant by "limitations" and "regulations"? The words in their ordinary senses are easily understood to mean what they in legal parlance, respectively, imply to wit, restrictions of power and rules of conduct or proceedings. The matter of this rule need not be treated as in any wise affected by the power of the legislature to establish limitations to jurisdiction. Its power to make rules of conduct or proceeding (that is, rules of procedure and practice) is all that can be considered on this motion. The question is, has the legislature the authority under the constitution, after having enacted a Code of Civil Procedure including a chapter establishing the procedure and practice in the matter of appeals to the supreme court, to dictate to the supreme court as to the very physical substance of the pleadings and other instruments which it may be necessary for the justices to handle, read, and study in their deliberations after the cause is submitted? What style of typewriter would the legislature permit the appellant to use? What size of type? How close shall the lines be? How thick is to be the paper? How small or large shall the pages be? What sort of ink shall the operator use in preparing the papers,--record of copying? How skillful in the use of the machine shall the typewriting operator be? if the legislature has the power to dictate as to carbon copies of transcripts to be used on appeal, why has not the legislature the power, under the constitution, to force the justices to read, study, and handle, during its deliberations, sometimes extending through a long period of time, papers prepared upon tissue paper, with machines making faint impressions from small type, and with such ink or carbon that they will be annoying, inconvenient, untidy, and soon indecipherable? Could a regulation such as that last above suggested by within the powers of the legislature to regulate the procedure and practice on appeal to the supreme court? If not, then we cannot see how any regulation of any character dictating to our department of the state government what kind of ink or other material substance shall be used, or how the ink shall be put on, in the manufacturing of the pleadings and papers to be handled and perused by the justices, can be valid. Might not the legislature go further, and permit the appellant to use a pen instead of a typewriter? Power to dictate to this department of government as to the use of typewritten transcripts includes the right to order us to struggle through a mass of pen written transcripts and all other records and papers, including briefs. Wherein would such acts be within the power of the legislature, as a "regulation" of the appellate jurisdiction of this court? ...