Watts v. Billings Bench Water Ass'n
| Decision Date | 27 January 1927 |
| Docket Number | 6016. |
| Citation | 253 P. 260,78 Mont. 199 |
| Parties | WATTS v. BILLINGS BENCH WATER ASS'N. |
| Court | Montana Supreme Court |
Rehearing Denied Feb. 14, 1927.
Appeal from District Court, Yellowstone County; O. F. Goddard Judge.
Action by Ollie Watts against the Billings Bench Water Association. Judgment for plaintiff, and defendant appeals. Affirmed.
Wood & Cooke, of Billings, for appellant.
T. F Shea and R. G. Wiggenhorn, both of Billings, for respondent.
Appeal from judgment in favor of plaintiff in an action for damages for the destruction of crops by the breaking of defendant's irrigation canal.
The defendant is the owner of a large ditch or canal constructed some 19 years prior to the injury complained of for the purpose of diverting water from the Yellowstone river to and upon lands owned or controlled by stockholders in the association. North of the city of Billings this canal follows the base of a high bluff or "rim-rock" and from its south bank the ground slopes precipitately to the valley below. On this slope, at a considerable distance below the level of the canal, the plaintiff held under lease a plot of land on which he raised produce for market. On a Saturday in July, 1924, and at a time when plaintiff had a considerable crop well along toward completion of its growth, the canal broke at a point immediately above plaintiff's lands and, by erosion of water and the deposit of earth, sand, and débris thereon, destroyed plaintiff's crops. Plaintiff presented a claim to the defendant and thereafter commenced action for damages.
Issue was joined in the trial court and the cause tried in the usual manner; the trial resulted in verdict and judgment for the plaintiff. No motion for a new trial was made; the defendant appealed directly from the judgment, and in due time presented and served its bill of exceptions, whereupon the plaintiff served and filed proposed amendments thereto. These amendments, in the main, sought to have incorporated in the bill rulings made against the plaintiff, with his exceptions thereto, and offers of proof made by the plaintiff and excluded by the court, and in particular sought to show the facts with reference to the introduction of the testimony of two witnesses discovered by the plaintiff after both the plaintiff and the defendant had rested. At that time plaintiff's counsel moved the court to permit the plaintiff to reopen his case; he supported the motion by affidavit in which he set forth the facts and further asserted that the evidence was then discovered only because the witnesses, believing the case to be ended, divulged their knowledge. This motion was denied, but the court thereafter permitted these two witnesses to testify in rebuttal over the objection of defendant that their testimony was a part of plaintiff's case in chief and improper rebuttal testimony.
The court refused the amendments and settled and allowed the bill of exceptions as presented by the defendant; therein it only appears that the testimony of the two witnesses mentioned was admitted as rebuttal testimony, and defendant assigns error on the court's ruling against it in this regard.
During the month of July, 1926, counsel for plaintiff filed in this court a "petition to prove exceptions," but was advised by the Chief Justice that, as the court was in recess and could not then be assembled, counsel might prepare their briefs as though the amendments were made, and that "when the matter comes up for consideration we will consider the amendments to the bill of exceptions as proposed to have been made, in so far as they should be made." This procedure was followed, and, in addition to briefs on the merits of the appeal, we have before us briefs on the question, of the right of the plaintiff to have the matter set forth in his petition incorporated in the bill of exceptions settled and allowed and before us for consideration.
1. Counsel for defendant contend that the matter which plaintiff sought to have incorporated in the bill does not constitute "amendments" thereto, as contemplated by the provisions of section 9390, Revised Codes of 1921, under which the bill was prepared and settled, and which, in so far as it affects the question, reads as follows:
"The party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must, * * * prepare and file with the clerk of the court and serve upon the adverse party a bill of exceptions, containing all of the proceedings had at the trial upon which he relies, * * * within ten days after such service, the adverse party may propose amendments thereto," etc.
Counsel further contend that it is only the party presenting the bill of exceptions for settlement who is accorded the right to petition this court to prove exceptions under the provisions of section 9392, Revised Codes of 1921, and rule 5 of this court, and that this court has no authority to review the disallowance of amendments proposed by the prevailing party to a bill of exceptions taken by the losing party, and that the only manner in which the prevailing party in an action can present exceptions on appeal is by complying with section 9389, which provides that:
"A bill containing an exception to any decision may be presented to the court or judge for settlement, at the time the decision is made, and after having been settled shall be signed by the judge and filed by the clerk."
Section 9392, above, provides that "if the judge in any case refuse to allow an exception in accordance with the facts, the party desiring the bill settled may apply by petition to the Supreme Court to prove the same; the application may be made in the mode and manner, and under such regulations as that court may prescribe"; while rule 5 of this court merely prescribes the procedure to be followed.
In support of their contention counsel rely upon the decision in Re Gates, 90 Cal. 257, 27 P. 195, construing California statutes similar to ours just quoted and declaring in accordance with defendant's contentions above, but in which it is said, "This court can interfere with such statement or bill only in the cases provided by statute, and the only case thus provided is found in said section 652 [Code Civ. Proc.]" (similar to our section 9392 above), while the only provisions California then had for the settlement of bills of exceptions were similar to our sections 9389 and 9390, above quoted.
Counsel assert that this court, by analogy, sustained a portion of their contention in Forrester v. Boston & Montana, etc., Co., 23 Mont. 122, 58 P. 40, when it said that the court had no power, under section 1157, Code of Civil Procedure of 1895 (now section 9392), to strike out amendments in a bill of exceptions on the application of the prevailing party. However, that statement was made only incidentally and after the court had held that "the petition must be dismissed upon the ground that the amendments allowed are immaterial; hence we do not consider or decide, but expressly reserve, all questions which might arise, were the amendments material, in respect to the power and right of the supreme court, under section 1157"; and it must be remembered that, as in the California case of In re Gates, the above quoted sections were all that we had on the subject of bills of exceptions at the time the decision in the Forrester Case was rendered. Nor have the decisions in Re Application of Plume, 23 Mont. 41, 57 P. 408, and Harding v. McLaughlin, 23 Mont. 334, 58 P. 865, any application here, as those decisions merely hold that section 1157 (now section 9392) does not apply to cases wherein the court refuses to settle any bill of exceptions whatsoever.
Were the above sections the only provisions which we now have on the subject, the decision in the Gates Case and counsel's position would be unassailable, as section 9390 provides only for the inclusion in the bill of those matters on which the defeated party relies for a reversal of the judgment, and section 9392, read only in connection with that section 9390, would accord the right to petition this court for the proving of exceptions only to the party appealing, while "amendments thereto" can refer only to a "change for the better by freeing from faults, vices, errors or defects, or by supplying deficiencies." Standard Dictionary. This being the condition of the statutes with reference to bills of exceptions, a strict construction thereof, as they existed prior to 1907, would require each party to an action, not knowing which would finally prevail therein, to settle a bill as to each exception taken to a ruling or decision throughout the trial, or lose the benefit of that exception, as to the prevailing party, and on appeal leave the record in such a condition that the Supreme Court would be compelled to reverse the final judgment in spite of the fact that, had the court the full record before it, substantial justice would require an affirmance.
With our procedure on appeal in this condition, and, it may well be, with the above cited cases in mind, our Legislature enacted chapter 35, Laws of 1907. This enactment contains two sections and bears the following significant title:
"An act relating to bills of exceptions and statements of the case, providing that the exceptions of the prevailing party shall be incorporated therein, and providing for review by the Supreme Court on appeal of such exceptions and the orders and rulings relating thereto."
Section 1 of the act, now section 9394, Revised Codes of 1921, provides that:
"Hereafter all district courts and judges, on settlement and allowance of any bill of exceptions at any stage of the trial of a cause, shall, upon demand of either party, or, in the discretion of said court or...
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