Raymond v. Thexton

• Decision Date: 10 January 1888
• Citation: 7 Mont. 299
• Parties: RAYMOND v. THEXTON et al.
• Court: Montana Supreme Court

7 Mont. 299

RAYMOND

v.THEXTON et al.

Supreme Court of the Territory of Montana.

January 10, 1888.

Appeal from district court, Madison county; before Justice McCONNELL.

Motion to dismiss an appeal in the case of Winthrop Raymond, plaintiff and respondent, against George Thexton and others, defendants and appellants.

Blake & Pigott, for respondent.

James E. Calloway, for appellants.

GALBRAITH, J.

This is a motion to strike from the record certain portions of the transcript, on an appeal from an order overruling a motion for a new trial. The first of these alleged objectionable portions of the transcript are the original complaint and the demurrer thereto. Before any action was had by the court upon the demurrer to the original complaint, the respondent filed an amended complaint for substantially the same cause of action, and dismissing as to one of the defendants, mentioned in the original complaint as executor. This was a virtual confession of the demurrer. No objection was made to the filing of the amended complaint, and it was a substitute for and superseded the original. This amended complaint was practically an abandonment of the allegations contained in the original, which could not be considered for any further purposes in the action. The demurrer to the original complaint was never acted upon by the court. Therefore both the original complaint and the demurrer thereto are wholly useless and immaterial portions of the record, and it should not be incumbered thereby. Another portion of the transcript alleged to be objectionable is the deposition of one Ramsey, and also what appears to be a literal copy of the stenographer's notes taken upon the trial. This constitutes all the testimony in the case, and it, and it alone, is contained in what purports to be a “statement,” and is certified to by the attorneys for the respondent to be correct. It does not purport, even on its face, to be a statement on motion for a new trial, but simply a “statement.” This so-called “statement” does not comply with the provision of the law, which requires that statements, upon motions for new trials, shall be signed by the judge, “with his certificate that the same is allowed.” Comp. St. div. 1, § 298. In this respect the statute in relation to statements on motion for a new trial differs from that in relation to statements of the case on appeals in general. In the latter case the statement, in place of its being required to be certified to and signed by the judge, may be agreed to by the parties or their attorneys, and certified to by them as being correct. But in relation to statements on motion for a new trial there is no provision for such agreement, and the requirement that it be signed and allowed by the judge appears to be imperative. Where there is a general rule of law assuming to be applicable to all cases, and there exists also a special rule assuming to be applicable to a particular case, which might otherwise be included within the general rule, the special rule will prevail. This is substantially our statute upon this subject. Section 631, div. 1, Comp. St., provides that “when a general and particular provision are inconsistent, the latter is paramount to the former.” Section 298, above referred to, is an exact copy of the statute of California in relation to the same subject; and the supreme court of that state has held that it must be literally complied with. Schrieber v. Whitney, 60 Cal. 431;Adams v. Dohrmann, 63 Cal. 417. The statement should have been certified to and signed by the judge. Again, this is not a statement on motion for a new trial, such as is contemplated by the statute. The above section (298) requires that the statement shall contain a specification of “the particulars in which” the “evidence is alleged to be” insufficient, or any “particular error” in law upon which the appellants “will rely.” This evidently refers to cases where the testimony is alleged to be insufficient to justify the verdict or decision, or where it is claimed that errors of law occurred at the trial, as designated in subdivisions 6, 7, § 296, div. 1, Comp. St. It contains no specification of errors whatsoever, but is simply the undigested, unarranged mass of testimony taken in the case. The specification of errors “forms [to use the language of a former decision of this court] the frame-work of the statement;” it is the basis of the edifice; “and the evidence is only produced to strengthen and support the structure and make it complete.” Griswold v. Boley, 1 Mont. 545. In this case, WADE, C. J., delivering the opinion of the court, says: “The motion must designate and specify with exactness and precision the grounds upon which the motion will be made, and these specifications must be carried into the statement, and form a part thereof; and only so much of the evidence shall be reproduced as tends to...