Porter v. Clark

• Decision Date: 16 August 1886
• Parties: PORTER, Adm'r, v. CLARK and others.
• Court: Montana Supreme Court

11 P. 638

6 Mont. 246

PORTER, Adm'r, v. CLARK and others.

Supreme Court of Montana

August 16, 1886

Appeal from Second district, Silver Bow county.

Robinson & Stapleton, for appellants, James R. Clark and others.

Knowles & Forbis, for respondent, Thomas C. Porter, Adm'r.

BACH, J.

This is an appeal from a judgment entered upon the decision of the judge in the court below, where the case was tried without a jury. The transcript contains the complaint, answer, and replication; a demurrer to the complaint, which was overruled; and a statement signed as correct by the attorneys for both parties. The transcript does not contain any bill of exceptions, findings of the court, motion for new trial, or an order overruling any such motion. The points relied upon by the appellants, and the only points mentioned in the brief of their attorneys, are-- First, insufficiency of the evidence to justify the decision of the court below; second, that said decision is against the law, as shown by the evidence.

In order that this court may review a decision or verdict for either of the causes assigned, the evidence must be properly before the court. It is true that there is a statement; but there is no bill of exceptions, motion for new trial, or order denying the same, which we are to consider by means of that statement. Subdivision 6 of section 408 of the Code, as amended by the Laws of 1881, defines the proper procedure in cases in which a decision is against the law, as well as in cases in which the insufficiency of the evidence is the ground complained of; and the interpretation of that section found in Allport v. Kelley, 2 Mont. 343, and in Chumasero v. Vial, 3 Mont. 376, must apply to the whole of subdivision 6.

The only question in the record for us to consider is, "Do the pleadings sustain the judgment?" Such a question is not raised in appellants' points, and therefore need not be considered by us. A careful inspection of the statement, however, does not disclose the fact that the appellant suffers from any misapprehension of his proper remedy. The evidence contained in the statement fully supports the decision of the court.

The judgment of the court below is affirmed, with costs.