Yellowstone Nat. Bank v. Gagnon
| Decision Date | 15 April 1901 |
| Parties | YELLOWSTONE NAT. BANK OF BILLINGS v. GAGNON. |
| Court | Montana Supreme Court |
Appeal from district court, Yellowstone county; O. H. Loud, Judge.
Action by the Yellowstone National Bank of Billings against E. H Gagnon. From a judgment in favor of defendant, plaintiff appeals. Affirmed.
Gib A Lane, for appellant.
O. F Goddard, for respondent.
The plaintiff has appealed from the final judgment in an action upon promissory notes executed by the defendant.
1. A paper entitled "Bill of Exceptions" is by copy included in the transcript. Appended to it is the following certificate by the judge who tried the cause: "The foregoing bill of exceptions is signed, settled, and allowed by me this 27th day of June, A. D. 1898, together with the proposed amendments of defendant." Counsel for the plaintiff, while conceding that the amendments offered by the defendant were allowed, but were not incorporated into the bill, asserts that since they appear in the transcript the court should consider them in connection with the supposed bill. This we may not do. It is true that there is copied into the transcript a paper purporting to embrace the amendments proposed by the defendant and allowed by the judge, but it is no part of the record on appeal. It is not included within any bill of exceptions or statement on motion for a new trial, nor is it one of the papers which section 1196 of the Code of Civil Procedure designates as part of the judgment roll; neither is it required by section 1736 of the Code of Civil Procedure to be furnished to this court on appeal; hence we cannot look to it for any purpose. What the amendments are, or whether the matter therein contained be material or immaterial, relevant or irrelevant, we have no means of determining. They must be disregarded. We have then, the certificate of the judge to the effect that the bill of exceptions proposed by the plaintiff, together with the defendant's amendments proposed thereto, are settled, but what the amendments are is not disclosed, and it is apparent that the amendments are not in the bill. The proposed bill and the amendments--not one, but both--were necessary to constitute a bill of exceptions. The judge should not, in any event, have made the certificate he did, nor should he have certified the supposed bill to be correct until after the amendments were incorporated. He ought not to have given any certificate before engrossment. Although there is in subdivision 3 of section 1173 of the Code of Civil Procedure an express provision requiring proposed statements on motions for a new trial and the amendments to be engrossed, no such provision is made, so far as we are advised, in respect of bills of exceptions; but the bill and amendments, when settled, must nevertheless be engrossed, in order to constitute such a bill of exceptions as is contemplated by the law. The amendments allowed must be inserted, and the proposer of the bill must see that this is done. Such has always been the rule and practice in the territory and state of Montana. Nothing in Wulf v. Manuel, 9 Mont. 276, 23 P. 723, nor in Mining Co. v. Schreiner, 14 Mont. 121, 35 P. 878, indicates anything to the contrary. The so-called bill of exceptions must also be disregarded.
2. Having eliminated the supposed bill of exceptions, nothing remains for our consideration except the judgment roll. Counsel for the plaintiff contends that the answer fails to state facts sufficient to constitute a defense or counterclaim to the second cause of action alleged in the complaint. That question was determined adversely to the plaintiff upon the former appeal in this case, the opinion being reported in 19 Mont., on page 402, 48 P. 762. This court there held that the answer in the respect mentioned does state a defense, and it matters not...
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