Kleinschmidt v. Iler

• Decision Date: 25 January 1886
• Citation: 9 P. 901,6 Mont. 122
• Parties: KLEINSCHMIDT v. ILER.
• Court: Montana Supreme Court

9 P. 901

6 Mont. 122

KLEINSCHMIDT v. ILER.

Supreme Court of Montana

January 25, 1886

Appeal from Third district, Lewis and Clarke county.

E. W. & J. K. Toole and Wm. Wallace, Jr., for respondent, Reinhold H Kleinschmidt.

Sanders & Cullen, for appellant, Julius C. Iler.

WADE C.J.

This was an action to dissolve and wind up the affairs of a partnership. For this purpose a referee was appointed to state an account between the partners, (the respondent and appellant,) and a receiver to take possession of and sell a certain stock of merchandise. The referee heard testimony and returned his findings and statement of account between the parties to the court, and the receiver filed his report. Thereupon said findings were approved and adopted by the court, and said report confirmed, and the receiver discharged; and, on motion of the respondent, judgment was rendered in his favor upon said findings and account, to the rendition of which the appellant made a general exception which was entered of record, but no bill of exceptions was taken or filed in that behalf. The appeal is from the judgment.

The appellant now asks to have this judgment reversed for the reason that the referee did not report to the court the testimony taken before him, together with the objections thereto and the exceptions taken to his findings thereon. The testimony is not contained in the record. Whether the same was reduced to writing and reported to the court we have no means of knowing. No objection was made because the testimony did not accompany the findings. The court was not asked to pass upon objections to the testimony, or the sufficiency to support the findings, and no complaint is made that the findings do not support the judgment. If the appellant objected to the testimony, or any part thereof, for incompetency, and an exception had been saved before the referee, or for that the same did not support the findings, he ought to have made his objection and saved his exception before the rendition of the judgment, and then, by bringing the testimony before this court, on motion for a new trial, had these decisions and rulings reviewed.

There was no motion for a new trial. It is a fundamental principle often repeated in our decisions, that such a motion is the only means by which the testimony can be brought into this court for review. Such a motion is the only means by which the district court can be called on to review...