author: ME. JUSTICE HOLLOWAY, Me. Justice MixbubN:

text:
    FARLEIGH et al., Respondents, v. KELLEY, Appellant.
    (No. 1,575.)
    (Submitted May 14, 1903.
    Decided June 19, 1903.)

      Wills — Probate—Contest—Burden of Proof — Bight to Open and Close — Evidence—Conspiracy—Subscribing Witness— Absence from State — Impeachment.
    1. under Code of Civil Procedure, Section 2340, in a will contest, tbe contes-ants have the burden of proof, and are entitled to open and close.
    2. In a will contest, where contestants alleged that petitioner and others conspired to defraud contestants out of their rights as heirs of deceased, and, pursuant to such conspiracy, had forged the will sought to be probated, evidence that, before this will was offered for probate, petitioner had procured her appointment as administratrix of deceased’s estate, falsely alleging that she was his only heir, and, while acting as such ad-ministratrix, had sold a large portion of the property of the estate to her husband, and that contestants had instituted an action to have such proceedings and sale set aside, was admissible, under Code of Civil Procedure, Section 2340.
    3. On the probate of a will, where the subscribing witnesses are out of the state, evidence that they had made statements contradictory of the facts contained in the attestation clause, and evidence that the reputation of such subscribing witnesses for honesty and integrity is bad, is admissible.

      4. In a will contest, where contestants had alleged that petitioner and others had conspired to defraud them of their rights as heirs of deceased, evidence that petitioner’s husband, who was acting as her agent with reference to the estate, had asked the clerk of the district court to write to one of contestants, in answer 10 an inquiry as to the estate, that the property was not very valuable, and that petitioner had written a letter to the inquiring heir, stating that the estate had been settled and the property left to petitioner, was admissible, as tending to prove the charge of conspiracy.
    5. In a will contest, evidence that one of the subscribing witnesses had, some years after the execution of the will, brought the document to witness and explained his possession of it, was inadmissible.
    6. Extrajudicial declarations, not under oath, corroborating testimony given in court, cannot be received.
    7. where evidence is offered as a whole, and part of it is incompetent, the exclusion of all of it is not error.
    8. ’ In a will contest, evidence that witness had, prior to the date of the trial, met one of the subscribing witnesses of the alleged will, who said that a certain person had given him money with which to leave the state, 'and that he was going to leave, and that the person who had advanced the money had contracted with contestants to buy whatever interest in certain property they acquired from the estate, was inadmissible; the absence of the subscribing witness having been already sufficiently accounted for.

      Appeal from District Court, Jefferson County; Henry C. Smith, Judge.

    PetitioN by Caroline V. Kelley for tbe probate of an instrur ment purporting to be tbe last will of John D. Allport, deceased, to wbicli Lillie Sue Farleigh and others filed objections as contestants. From an order overruling a motion for a new trial, petitioner appeals.
    Affirmed.
    Statement oe tiie Case.
    On July 3, 1899, the appellant, Caroline Y. Kelley, filed in tbe district court of Jefferson county her petition for the probate of an instrument in writing purporting to be tbe last will of Jpbn D. Allport, deceased, and to have been executed October 18, 1895. Tbe petition sets forth tbe jurisdictional facts; alleges that tbe property left by tbe deceased was approximately of tbe value of $26,000; that petitioner is a sister of deceased; and then gives tbe names and residences of other relatives. By tbe terms of tbe alleged will, tbe petitioner is made sole legatee, and nominated executrix without bonds. On July 29, 1899, tbe respondents filed their written grounds of opposition to tbe probate of the alleged will. These-grounds are that the proffered instrument is not the will of John D. Allport, and that he never made a will, but died intestate. It is then alleged that the contestants Lillian Sue Farleigh and Mary A. Miller are sisters of deceased; that the contestant Deviney Allpcrt is a brother of deceased; that contestant Frances C. Wellman is a daughter and only heir of Galista Goolidge, deceased, who -was a sister of John D. Allport; and that the contestants are entitled to share in the estate. As a further ground of contest, the contestants then set forth facts which they claim show a conspiracy on the part of the petitioner and other parties to them unknown to cheat and defraud the contestants out of their interests ,in Allport’s estate. It is alleged that, for the purpose of carrying out this- conspiracy, immediately after the death of Allport, which occurred November 26, 1895, the petitioner, Caroline V. Kelley, who then resided in Denver, Colorado, came to Montana and filed her petition for letters of administration of the estate of Allport, in which she falsely alleged that she was the only heir of the deceased; that she thus fraudulently procured letters of administration to be issued to her as administratrix; that appraisers were appointed to appraise the property belonging to such estate, and that the petitioner falsely withheld from them the knowledge that certain valuable mining claims situated in Jefferson and Silver Bow counties belonged to such estate; that she procured an order for the sale of certain real property belonging to the estate to be made, and under such order she sold nearly all the property to her husband, George II. Kelley; that she procured an order of partial distribution to bo made, upon the hearing for which she again falsely claimed to be the only heir of the deceeased, to whom all of the estate thus distributed was transferred; that these contestants then discovered the facts above set forth, and, upon filing their petition alleging their relationship to the deceased and their interest in liis estate, the petitioner, Caroline Y. Kelley, admitted such relationship and interest, and the decree of distribution was set aside; that thereafter the said Caroline Y. Kelley, in furtherance of the conspiracy charged, procured to be forged a writing purporting to be the last will of John D. Allport, deceased, and commenced proceedings to have the same admitted to probate (in this alleged will these contestants were not mentioned at all, and were excluded from sharing in the estate) ; that these contestants filed their protest to the probate of the same; that issues were joined, and 'che cause set for trial to a jury, but before the conclusion of the trial the petition was, on the application of petitioner, withdrawn,- and the proceedings dismissed; that thereafter such petitioner and others to contestants unknown, in furtherance of such conspiracy, procured to be forged the writing dated October 18, 1895, purporting to be the last will of said Allport, by the terms of which the said Caroline Y. Kelley was made sole legatee, and nominated executrix without bonds. To these written objections the petitioner filed a reply (so called), denying all the material allegations contained in the written opposition. The cause came on for trial before the court and a jury, and upon application of contestants, and over the objections of the petitioner, the court ruled that the contestants had the burden of proof, and should open and close, after the petitioner had made formal proof of the execution of the alleged wall, and that the contestants had the right to open and close the argument to the jury.
    In answer -to the several special interrogatories propounded, the jury found against the petitioner, and declared that the instrument offered was not the will of John D. Allport. From an order overruling petitioner’s motion for a new trial, this appeal is taken.

      Mr. T. J. Walsh, Mr. B. II. Giles, and Mr. George F. Cowan, for Appellant.
    In a will contest the right of the proponent to open and close the case to the jury is established by an almost unbroken line of American authorities. Whether the proceedings are for a proof of the will in “solemn form,” after it has been admitted to probate in “common form,” whether by bill in chancery after it is formally admitted by the probate court, or whether it takes the form of a “contest,” such as is provided for by our statute, seems to make little difference. (Hubbard v. Hubbard, 7 Oregon, 42; 12 Eincy. PI. & Pr. 197; 1 Greenleaf on Evidence, 77; 1 Thompson on Trials, 239; Bailey osi Onus Pro-bandi, 389; Eice on Am. Probate Law, 54; Horner’s Probate Law, 71; Brooks v. Barrett, 7 Pick. 94; Seebrock v. Fedawa, 30 Neb. 424; Hardy v. Merrill, 56 N. H. 227; Taff v. IIos-m-er, 14 Mich. 309; Fatten v. Gilley, 42 Atl. 47; Roger v. Thomas, 1 B. Mon. 930; Taylor v. Cox, 153 Ill. 220,-231;' Mayo v. Jones, 78 N. 0. 402; Comstock v. Society, 8 Conn. 254; Sec. 1080, Code of Civil Procedure, as amended by Act of March 1, 1897, Laws of 1897, page 241; McCutcheon v. Loggins (Ala.), 19 So. 810; Woodruff v. Hundley (Ala.), 32 So. 570; Janvison v. Jamison (Del.), 3 Houst 112; Rich y. Lemmons (D. O.), 15 App. Ct. 507; Potts v. House, 6 G-a. 324; Thompson v. Bennett, 194 Ill. 57; Morell v. Morell, 157 Ind. 179; Crowninshield v. Crowninshield, 67 Mass. 524; Kempsey v. McCinniss, 21 Mich. 147; Ankin v. Weckerly, 19 Mich. 502; Harvey v. Heirs of Sullins, 56 Mo. 373; Board-man v. Woodman, 47 N. II. 120; Syne v. Boughton, 85 N. C. 367; Brown v. Griffith, 11 Ohio St. 329; Banning v. Banning, 12 Ohio St. 437; Runyan, v. Pnce, 15 Ohio St. 1; Nicols v. Kershner, 20 W. Va. -253; Kerr v. Lunsford, 31 W. Ya. 659, S. C. 8, S. E'. 493; Kaine v. Tnjstees, 5 N. W. 838; Aultman v. Falkum, 47 Minn. 414; Carpenter v. First NaiT Bank, 199 Ill. 352; Bradley v. Brady (Ill.), 50 N. E'. 124.)
    The denial of the right of opening and closing a case to the jury constitutes reversible error. (Tobvn v. Jenkins, 29 Ark. 151; Mann v. Scott, 32 Ark. 593; Manseur v. Implement Co., 61 Ark. 627; Royce v. Gazan, 76 Ga. 79; Sohn v. Jervis, 101 Ind. 573; Peed et al. v. Brennan, 89 Ind. 252; Crabtree v. Atchison, ■'HZ Ky. 338; Lucas v. Hunt, 91 Ky. 279; Wright!s Admr. v. N. W. etc. Ins. Co., 91 Ky. 208; Abot v. Sugwra, 5 Martin, N. S. 73; Johnson v. Josephs, 75 Me. 544; Edelen

      Admr. v. Edelen, 6 Md. 288; Spaulding v. Hood, 8 Cush. 602; Hobson v. 'Harrison, 11 Cush. 40; Hickman v. Layne, 47 Neb. 177; Rea y. Bishop, 41 Neb. 202; Millerd et al. y. Thorn, 56 N. Y. 402; Murray v. Jus. Co., 85 N. Y. 236; Gonselyea- et al. v. Swift, 103 N. Y. 604; Hudson v. IN eherington, 79 N. C. 3; Steiuart v. Bledsoe, 85 N. O. 473; Addison v. Duncan, 35 S. 0. 165; Bennett v. difer, 15 S. O. 165; Sanders v. Bridges, 67 Tex. 93; N. K. Co. v. Strand, 4 Wash. 311; Hall v. Dairy Co., 15 Wash. 542; Sammons v. Hanvers, 25 W. Va. 678.)

      Messrs. Walsh & Newman, Mr. Robert B. Smith, and Mr. Charles R. Leonard, for Respondents.
    The court did not err in granting the contestants the right to open and close. (Code of Civil Procedure, Sec. 2340, div. 4; Code of Civil Procedure, Sec. 1080, as amended by Act of March 1, 1897 ; In re Doyle, 73 Cal. 564, 15 Pac. 125; Allen v. Qriffin, 65 Wis. 529, 35 N. W. 21; McCulloch v. Campbell, 5. S. W. 590; Underhill on Wills, Sec. 165, p. 231; McDonald v. McDonald, 41 N. E. 336; Patten v. Cilly, 42 Atl. 47; Schoff v. Laithe, 58 N. H. 503; Rogers v. Kendrick, 63 N. H. 335; Manufacturing Go. v. Head, 59 N. H. 332; Hilliard v. Beattie, 50 N. H. 462; Scott v. Hull, 8 Conn. 296, p. 303; Blwne v. Hartman, 8 Atl. 219.)
    The discretion of the court in granting or refusing the right to open and close, is not reviewable on appeal, and is not reversible error. (Marshall v. Am. Express Co., 7 Wis. 1; Kaime v. Trustees Village of Ormo (Wis.), 5 N. W. 838; Elclerkin v. Wiswell (Wis.), 21 N. W. 541; Austin v. Austin, 45 Wis. 526; Viele v. German Ins. Co., 26 la. 9; Preston v. Walker, 26 la. 205; Smith v. Cooper, 9 la. 379; Woodward v. Laverty, 14 la. 383; White v. Adams, 77 la. 295 ; Van Horn v. Smith, 59 la. 142; Dent v. Smith, 53 la. 262; Delaiuare v. Duncat, 48 la. 488.; Ashurst v. Grub, 47 la. 353; Aultman v. Falkum, -47 Minn. 414; Carpenter v. First NatT Bank of

      Joliet, 119 Ill. 352; Parle v; Durham, .85 Ill. 569; Valley v. Teewalt, 79 Va. 421; Day v. Woodworth, 13 How. 363; Hall v. Weare, 92 U. S. 728; Lancaster v. Collins, 115 U. S. 222; Scott v. Hall, 8 Conn. 303; Florence O. B. Co. v. Farrar, 109 Fed. 254; Cheelc v. Watson, 90 N. O. 307; Moore v. Brown, 6 S. E. 833; Smith v. Fullenweider, 19 Pae. 314; Bradley v. Brady (Ill.), 50 N. E. 124; Nash’s PL & Pr., 2d Nash,-972.)
   ME. JUSTICE HOLLOWAY,

after stating the case, delivered the opinion of the court.

1. Had the contestants the right to open and close the case ? It is considered by the petitioner that so long as she was required to make some proof in the first instance, even though it be formal in character, and only such as she would be required to make in case no contest had been inaugurated, she was- entitled to open and close the case, and in deciding against this contention the district court committed prejudicial error.

Whatever may be the rule in other jurisdictions, where peculiar statutory provisions have entered into the determination of the question, there can scarcely be any serious controversy as to the proper practice in this state. If the issues to be tried were raised upon the allegations of the'petition for probate, and the objections made thereto in the written opposition of contestants, it would then seem reasonable that the burden would be cast upon the petitioner to maintain by a fair preponderance of the evidence the allegations of her petition, and this burden would carry with it the right to open and close, but such is not the case. The proceedings for the contest of a will (before probate) are provided for in Sections 2340-2346 of the Code of Civil Procedure. Paraphrased, Section 2340 would’ read: The contestants must file written grounds of opposition to the will offered, and serve a copy on the petitioner, who may demur thereto upon any grounds for which a demurrer to a complaint in a civil action may be interposed. If the demurrer be sustained, the contestants may amend their written opposition. If petitioner’s demurrer be overruled, sbe may file her answer traversing or otherwise obviating or avoiding the allegations of the written opposition, and the issues of fact raised by these, two pleadings — '(1) the written grounds of opposition, and (2) the petitioner’s answer thereto — and none others, must be tried, by a jury if demanded; and upon such trial the contestants are the plaintiffs, and the petitioner is the defendant.

The issues to be tried, then, are raised by the allegations of the plaintiffs’ (contestants’) written grounds of opposition or complaint, and the defendant’s (petitioner’s) answer thereto. Thus the actual trial of the contest is not initiated until the proffered will is before the court (not the jury) upon the formal proof necessary to the probate of an uncontested will. The very fact that the petitioner’s answer need be nothing more than a general denial of the allegations contained in the written grounds of opposition emphasizes the evident intention of the legislature that the contestants shall have the laboring oar throughout the trial. No other construction can be given to the language of Section 2340, above, and the plain meaning of the terms employed, be preserved.

The contestants are the plaintiffs. They have the burden-of proof imposed upon them, and with that they have the righto open and close. (Section 1080, Code of Civil Procedure, as amended by Act Fifth Legislative Assembly, approved March 1, 1897 [Laws of 1879, p. 241].) Section 1312 of the California Code of Civil Procedure is in terms identical with Section 2340, above, and received a construction in In re Doyle's Estate, 73 Cal. 564, 15 Pac. 125, in which Temple, L, concurring, said: “The same procedure is made applicable to a contest after the will has been admitted to probate as before. In both, the contestant has the laboring oar, as though he is attacking something which he must overcome by affirmative proof. Under such circumstances, I think the theory of the statute must be that the contest begins after the petitioner has made his prima facie case. In such case the burden would naturally be on the contestant, and all the provisions consistent and harmonious. ”

2. Contestants were permitted to make proof of the proceedings had in the administration of Allport’s estate, of the attempt to probate the former will, of the transfer by Caroline V. Kelley to her husband, G-eorge H. Kelley, of a large portion of the property belonging to the estate, and of the proceedings instituted in the district court to recover such property back into the estate. Of this complaint is now made.

We are of the opinion that the- evidence was properly admitted. TJnder Section 2340, above, the issues formed upon the contest of a will may involve the competency of the testator, his freedom from duress, etc., the due execution of the will, or any other question substantially affecting the validity of the will. In this instance the pleadings put in issue the due execution and attestation of the will offered, and the question of the existence of a conspiracy formed by the petitioner and unknown parties to defraud the contestants out of their interests in the estate by successive attempts to have the property transferred to the petitioner, and, when all efforts had failed, by forging, or procuring to be forged, the alleged will offered for probate. The petitioner interposed a motion to strike out all allegations with reference to the conspiracy charged, but no error is predicated upon the court’s denial of the motion, and no question is made as to the sufficiency of the pleading.

The evidence offered tended to prove the allegations of the written opposition; tended to .show the improbability that the will in controversy is genuine, and to disclose the motives of the petitioner in offering it. It cannot be said that the only possible issues which can arise upon the contest of a will are such as involve the competency of the decedent to make a will, or his freedom from duress, menace, fraud, or undue influence, or the due execution or attestation of the will itself, for, if this be’ so, Subdivision 4 of Section 2340, above, is meaningless. Any question, other than these just enumerated, which affects tbe validity of tbe will, may properly be tbe subject of controversy.

3. lipón tbe trial tbe contestants were permitted to introduce evidence tending to prove that the. subscribing witnesses to tbe will offered bad made statements contradictory of the facts contained in the attestation clause attached to tbe will, and which also tended to impeach each of such subscribing witnesses by showing that bis reputation for honesty and integrity is bad. It developed upon tbe trial that both subscribing witnesses were then absent from tbe state, and proof of the genuineness of their signatures to the purported will was made before the testimony above complained of was offered.

Section 1123 of the Civil Code provides the manner of executing and attesting all wills, other than holographic and nun-cupative wills, and those provisions are mandatory. They are: “(1) It [every will] must be subscribed at the end thereof by the testator himself, or some person in his presence and by his direction must subscribe his name thereto. (2) The subscription must be made in the presence of the attesting witnesses, or be acknowledged by the testator to them, to have been made by him or by his authority. (3) The testator must, at the time of subscribing or acknowledging the same, declare to the attesting witnesses that the instrument is his will; and (4) there must be two attesting witnesses, each of whom must sign his name as a witness, at the end of the will, at the testator’s request, and in his presence.” When a will is contested; the subscribing witnesses, if present in the county and of sound mind, must be produced and examined. If absent, the court may receive other evidence, if any can be had, of the facts mentioned in Section 1723, above, but, as a rule, such facts, or many of them, can be proved only by the subscribing witnesses; and, for the purpose of making such proof, Section 2343 of the Code of Civil Procedure provides for the identification of the handwriting of the absent subscribing witnesses to the will, and, that done, those parties, though dead or out of the jurisdiction of the court, become, to all intents and purposes, active, living witnesses in court, giving testimony, as if under tbe sanctity of an oath, that at the time the instrument bears date the testator either signed it in their presence, or acknowledged to them that he had signed it or caused it to be signed, and that he then declared such instrument to be his will, and requested them to sign it as such witnesses, and that they did so in the testator’s presence; and thus evidence of the due execution of the will in conformity to the requirements of Section 1723, above, is made. If this was not so, it would be practically impossible to prove the due execution of any contested will. The proof of the genuineness of the signature of the dead or absent subscribing witnesses to the attestation clause, when one is appended, is evidence in the case that all the facts recited in it, and which are prerequisites to the due execution of the will, actually took place as therein set forth, (2 Rice on Ev. 1207; Allaire v. Allaire, 37 N. J. Law, at page 325; Scribner v. Crane, 2 Paige, 147, 21 Am. Dec. 81), and supplies the proof which in many, if not in most, instances it would otherwise be impossible to obtain. This view is further emphasized by the language of Section 2343, above, which requires the subscribing witnesses, who are in the county where the cause is tried, and of sound mind, to be produced and examined; and, if such witnesses were present and sworn and examined by the petitioner, it would hardly be contended that they would not then be subject to the same rules of evidence, as mentioned in Sections 3379 and 3380 of the Code of Civil Procedure, as are applicable to other witnesses.

The provisions defining the term “witnesses,” and the circumstances under which contradictory statements may be shown, are modified by Section 2343, above, to the extent that the exigency of the case permits the statement of the subscribing witnesses contained in the attestation clause, though not made under oath, to be received as primary evidence, or, in other words, permits the dead or absent witnesses to speak through the instrumentality of the statute itself, that its requirements have been fully met.

Tbe petitioner "may not have tbe benefit of tbe testimony of two witnesses to tbe facts that at tbe time of tbe execution of tbe will tbe testator subscribed tbe same in tbeir presence, and declared it to be bis last will and testament, without having such witnesses subject to be discredited dr impeached. If this was not so, and tbe appellant’s contention prevailed, no contest could be successfully waged against a will offered under such circumstances, for it would be practically impossible to disprove by other evidence tbe facts, or at least some of tbe facts, set forth in tbe attestation clause, or necessary to tbe due execution of tbe will; and, if not disproved, then the facts would stand as actually proved by tbe testimony of two witnesses not only entitled to full credit, but wbo cannot be impeached. (Section 3120, Code of Civil Procedure.) “Tbe subscribing witnesses are subject to the same rules as to contradiction and impeachment as other witnesses.” (Abbott’s Trial Ev. (2d Eld.) 142.)

4. Complaint is also made that tbe court erred in admitting evidence of statements made by George H. Kelley to Henry ,G. Kickerts, then clerk of tbe district court. Before making this proof, tbe contestants bad called tbe petitioner, Caroline V. Kelley, wbo testified that in all that was done by her husband, George H. Kelley, with reference to this estate, he was acting for her, and as her agent. Evidence bad also been introduced of the transfer of a large portion of tbe property belonging to tbe estate by tbe petitioner to her husband, and of tbe efforts required to secure its reconveyance to tbe estate. As further evidence of tbe collusion and conspiracy charged, tbe contestants called Kickerts, wbo testified that, while tbe estate was in course of administration, be bad received a communication from tbe husband of tbe contestant Farleigh, making inquiry with reference to tbe property left by Allport; that George H. Kelley came to him, and asked that be (Kelley) be permitted to answer tbe letter, and, upon a refusal of that request, asked Kick-erts to say to Earleigb that tbe property consisted principally of real estate in tbe town of Basin, and was not very 'valuable. Tbe objection interposed to this' testimony was that it was incompetent, immaterial and irrelevant. Upon tbe issue of a conspiracy to deprive these contestants of participating in tbe Allport estate, tbis evidence, as well as tbe letter written by tbe petitioner to Farleigh, telling him that Allport’s estate bad been settled, and tbe property left to her, was relevant and properly admitted — tbe declarations of George H. Kelley, as of a co-conspirator, or as tbe petitioner’s agent; and those contained in tbe letter of the petitioner, as circumstances tending to prove such conspiracy.

5. Upon tbe trial tbe petitioner sought to prove by the witness Nichols that in May, 1899, tbe subscribing witness Geiger-ich bad come to his office and banded to him tbe will in controversy, at tbe same time explaining tbe circumstances under which be bad held possession of tbe document from tbe time of its alleged execution. Tbe substance of Geigericb’s statement to Nichols was that in October, 1895, Allport bad executed the' will, and gone with Geigerich to tbe office of tbe Butte Hardware Company to leave tbe instrument with one Kirby; that Kirby was not in, and Allport then banded it to Geigerich and asked him to deliver it to Kirby; that be (Geigerich) put tbe will away, and forgot about it until May, 1899, when be went to get a paper from a box in which be kept valuable papers, and discovered tbe will and brought it to Nichols. Tbe offer to prove these declarations by tbe witness Nichols was excluded.

As we have heretofore seen, Geigerich was, to all intents and purposes, a witness in court, testifying under oath that tbe facts recited in tbe attestation clause actually occurred as therein set forth, and tbe reason for tbe rule which now excludes these declarations made by him to Nichols is that bis declarations not made under oath cannot strengthen tbe testimony which be has given under oath. Tbe issue involved was tbe genuineness of the alleged will, and to permit declarations of tbe absent subscribing witness in support of tbe validity of tbe will to be received in evidence for any purpose whatever would be to reverse tbe rule of evidence which has long ago become well settled — that extrajudicial declarations, not under oath, corroborating testimony given in court, cannot be received. Whatever exceptions there may be to this rule have no application to the facts of this ease.

The declarations of Geigerich were hearsay, and notably so are his declarations of declarations made to him by Allport. But it is contended • that they should have been received as a part of the res gestae. They were made nearly four years after the alleged will purports- to have been executed, and cannot, therefore, be said to characterize or explain the principal fact, viz., the execution of the will. As to that, they are narrations of a past transaction, and, as such, inadmissible.

But it is contended that they characterize and tend to explain the possession of the will, and for that purpose, at least, were admissible. The evidence was offered en masse — the offer was an entirety; and along with the declarations of Geigerich, explaining his possession, were the declarations made to him by Allport, and these, as offered, were incompetent under any phase of the case. So long, then, as the offer included evidence incompetent, coupled with that which may have been competent, the court committed no error in excluding the offer in its entirety. It was not the duty of the court to separate the competent from the incompetent matter, and admit the one and exclude the other. It properly passed upon the offer as made, and was not required to do for counsel that which he should have done for himself. (Yoder v. Reynolds, 28 Mont. 183, 12 Pac. 417; Clark v. Ryan, 95 Ala. 406, 11 South. 22; First National Bank v. North, 2 S. D. 480, 51 N. W. 96; Thompson on Trials, 678.)

6. Complaint is made that the court excluded the testimony of James T. Finlen. By this witness it was sought to show that, some time prior to the date of the trial, Finlen met Geigerich, who said he was going to leave Montana; that one Heinze had given him money with which to leave. This testimony was excluded, and the petitioner then offered to prove that the contestants had contracted, with Heinze to sell to him whatever interests they acquired in the Minnie Healy mine from Allport’s estate. This offered testimony was also excluded.

We cannot conceive of any theory of the case upon which this testimony would be competent or material. It is idle to urge now that at least it tended to account for the absence of the subscribing witness Geigerich, as required by Section 2348 above. It was offered at the last stage of the trial, long after proof sufficient to satisfy the court as to the absence of the subscribing witnesses had been made, and their handwriting identified. The evidence was incompetent and immaterial, and was properly excluded.

We have examined the other errors assigned, and find’ no merit in them. The order overruling petitioner’s motion for a new trial is affirmed.

Affirmed.

Mu. Chiee Justice Brantly : I concur.

Me. Justice MixbubN:

I concur, although I do not agree with Me. Justice Holloway in all that is said in Sections 5 and 6 of the opinion.


source: Caselaw Access Project

author: MR. COMMISSIONER POORMAN

license: Public Domain

text:
    WILSON, Appellant, v. PICKERING et al., Respondents.
    (No. 1,595.)
    (Submitted May 29, 1903.
    Decided June 22, 1903.)

      Mortgages — Discharge — Renewal of Note — Effect ■ — ■ Limitations — Amendment of Statute — Retroactive Effect — Code Provisions.

    1. A note secured by mortgage fell due June 11, 1886, and by the statute in force at that time action thereon would be outlawed in six years. Act 1889 (Sess. Laws 1889, p. 172) extended the period within which actions might be brought on written instruments to eight years, but expressly provided that the Act should not affect causes of action accrued prior to its passage. Code of Civil Procedure, Section 557, provides that the limitations prescribed therein shall not apply to causes of action which have become barred by existing statutes. Held, that the act of 1889 and the limitations prescribed in the Code had no application to the note in suit, but it was governed by the law in force at its maturity.
    2. Civil Code, Section 3842, providing that a mortgage can be created, renewed, or extended only by writing with the formalities required in the case of a grant of real property, since it did not take effect until July 1, 1895, and since by Section 4651 no part of the Civil Code is retroactive unless expressly so declared, has no application to a mortgage renewed by extension of the note which it secured in 1890.
    3. The statute, if retroactive, would have been an unconstitutional impairment of the validity of the contract of renewal.
    4. A mortgage secures a debt, and not the evidence thereof, and no change in the form of the evidence or renewal thereof can operate to discharge the mortgage, in the absence of an express agreement or a plain manifestation of intention that it shall do so.
    5. The maker of a note secured by a mortgage, who renews the note, has the burden of proving that it was the intention of the parties that such renewal should not extend the mortgage.
    6 The maker of a note executed a mortgage to secure it. After maturity of the note, it was renewed. After the maturity of the renewal note, it was again renewed, and a mortgage was given by the maker on other land than that covered in the first mortgage. The maker, at the time of executing the second mortgage, was requested to execute a new mortgage covering the property described in the first, but this he declined to do, requesting, however, that the mortgagor bring suit to foreclose the first mortgage. Held, insufficient to overcome, as a matter of law, the presumption, that the renewal of the note extended the first mortgage.

      Appeal from District Gourt, Broadwater County; F. K. Armstronog, Judge.

    Notion by E. T. Wilson, as receiver of the Eirst National Bank of Helena, against John G. Pickering and others. Erom a judgment granting insufficient relief, plaintiff appeals.
    Reversed.
    Statement of the Case by the Commissioner Preparing the Opinion.
    This case was tried on an agreed statement of facts, from which it appears that on December 11, 1885, defendant John G. Pickering executed and delivered to the Eirst National Bank of Helena his promissory note for the sum of $9,902.06, due six months after date, with interest at the rate of 1% per cent. per month after maturity until paid. At the same time the defendant John G. Pickering and Hannah Pickering, his wife, executed and delivered to the bank their certain mortage on the x’eal estate therein described as “additional security to secure the payment of $3,000” of this note. On December 20, 1886, defendant John G. Pickering executed and delivered to said bank his promissory note for the sum of $10,068.59, due in one year, with interest at the rate of 1% per cent, per month from date until paid. On January 20, 1888, defendant John G. Pickering executed and delivered to said bank his promissory note for the sum of $1,510.20, due in one year, with interest at the rate of 1% per cent, per month after maturity until paid. At the date of the last-named note the defendants Pickering (and his wife) executed to the bank a mortgage on certain other real estate, conditioned for the payment of the last two named notes. At the time this last mortgage was executed, defendants were asked by the bank to execute a new mortgage covering the property described in the first mortgage to secure the $3,000 included in the renewal indebtedness. This the defendants declined to do, and the defendant John G. Pickering then told the bank to commence foreclosure proceedings on the mortgage executed December 11, 1885. Ou February 8, 1890, the defendant John G. Pickering, without the knowledge or consent of the defendant Hannah Pickering, executed and delivered to the bank his promissory note for the sum of $13,509.58, due one year after date, with interest at the rate of one per cent, per month after date until paid. Subsequently, and on the 12th day of April, 1895, one T. H. Kleinsehmidt and Mary M. Eleinschmidt, his wife, “with the consent and by and under the direction of the said John G. Pickering, and for the further and additional security for the payment of the last-named note, executed and delivered to the bank” a deed to certain real estate, the title to which said T. H. Kleinsehmidt then held in trust for defendant John G. Pickering. Defendant John G. Pickering paid on the last-named note the sum of $1,642.10 as principal, and the further sum of $1,621.20 as interest. It further appears that the 'original indebtedness of $9,902.06 was> with the interest, carried along and included in the several notes subsequently executed, and that the $3,000 to secure the payment of which -the first mortgage was executed was included in and constituted a part of the sum due plaintiff at the time suit was commenced. On December 27, 1897, at the time this action was commenced, it was admitted that there was due plaintiff from defendant John G. Pickering the sum of $11,867.48, with interest thereon at the rate of 12 per cent, per annum from February 7, 1891.
    Plaintiff asked for judgment for this amount, that the deed f:rom Kleinschmidt to the bank be declared a mortgage, and for the foreclosure of all the mortgages named in the complaint, and the sale of the premises therein described.
    The defendants interposed the plea of the statute of limitations as to the mortgage executed December 11, 1885, and denied that it was the intention that the renewal of the notes should operate as a renewal of the former mortgage liens.
    At the trial the court found plaintiff ix> be entitled to the relief demanded, except as to the foreclosure of the mortgage dated December 11, 1885, which was found to be barred by the statute of limitations. Judgment was entered in accordance with the findings, and from the judgment so entered plaintiff appeals.

      Mr, O. B. Nolan> for Appellant.

      Mr. O. II. Baldwin,, and Mr. J. II. Shober, for Respondents.
   MR. COMMISSIONER POORMAN

prepared the opinion for the court.

1. The only question presented for consideration on this appeal is whether the court erred in holding that the mortgage dated December llj 1885, was barred by the statutes of limitation at the time of the commencement of this suit. The period prescribed by the statute at the time the right of action accrued on tbe note described in that mortgage was six years.' This note fell due June June 11, 1886, 'and the right of action thereon was barred June 11, 1892, unless extended by some means or agreement outside of the instrument itself.

The Act of 1889 (Session Laws 1889, p. 172) extended the period within which action might be brought on a written instrument to eight years, but expressly provided that the Act should not affect causes of action which had accrued prior to its passage. The right of action on this first note having accrued prior to that time, it was not affected by this Act; and, the statute of limitation having fully run, unless tolled, prior to the time when the Codes of 1895 took effect, the status of the case is not affected by the Codes. (First Div. Comp. St. 1887, Sec. 42; Sess. Laws 1889, p. 172; Code Civ. Proc. Secs. 512, 557, 8456; Political Code, Sec. 9; Sherman v. Nason, 25 Mont. 283, 64 Pac. 768; Guiterman v. Wishon, 21 Mont. 458, 54 Pac. 566.) The last case cited further decides that the statute of limitation does not confer a vested right, to’ that extent modifying the decision in Gillette v. Hibbard, 3 Mont. 417, by establishing the doctrine that limitation Acts affect the remedy and not the right.

2. Counsel for respondent contends that the provisions of Section 3842 of the Civil Code apply to this case. That section provides that a mortgage “can be created, renewed or extended only by writing, with the formalities required in the case of a grant of real property.” This statute is direct and certain, and admits of but one interpretation. A mortgage lien since its approval cannot be created, renewed or extended in contravention of its provisions.. (Wells v. Harter, 56 Cal. 342; London & S. F. Bank v. Bandmann, 129 Cal. 220, 52 Pac. 583, 65 Am. St. Rep. 179.) This statute, however, did not take effect or become law until July 1, 1895, while the last renewal of the note in the case before us was executed February 8, 1890. If at the last-named date the renewal of a note, as a matter of law, extended or renewed a mortgage lien given to secure the indebtedness evidenced by the former note, such extension or renewal became and was, at tbe time of the enactment of Section 3842, supra, a valid, subsisting contract, and the legislature could not impair its obligation by an enactment subsequent to the execution of such contract. (Cooley, Const Lim. (6th Ed.) 328.) And, if a renewal of the note did not toll the statute of limitation, the plaintiff’s right of action was barred thereby June 11, 1892, six years from the date when the first note became due. In either event, the section above quoted can have no application to the facts of this case. No part of the Civil Code is retroactive unless expre.ssly so declared. (Civil Code, Sec. 4651.)

3. A mortgage does not create an estate in real property. It is a mere security for the payment of a debt. It is an incident to that which it secures. (Hull v. Diehl, 21 Mont 71, 52 Pac. 782.)

The general doctrine appears to be that a mortgage secures a debt or obligation, and not the evidence of it, and no change in the form of the evidence or time of payment can operate to discharge the mortgage. So long as the debt secured remains unpaid, the renewal of the evidence of the debt will not impair the lien of the mortgage. The mortgage is barred only when the debt is barred. (Lent v. Morrill, 25 Cal. 492; Vick v. Smith, 83 N. C. 80; Kerr v. Lydecker, 51 Ohio St. 240, 37 N. E. 267, 23 L. R. A. 842; 15 Am. & Eng. Ency. Law (1st Ed.), 869; Balch v. Arnold, 9 Wyo. on page 36, 59 Pac. on page 438; Crawford v. Hazelrigg, 117 Ind. 69, 18 N. E. 603, 2 L. R. A. 139; Dumell v. Terstegge, 85 Am. Dec. 466.) To this latter case is appended a monographic note, containing a large collection of cases, and a full discussion of the above principles.

This general rule is modified to the extent that a court of equity will, on the presentation of a proper case, protect the intervening rights of third parties, and that the’parties to the mortgage may, at the time of renewing the note, by express agreement, or a plain manifestation of a contrary intention, negative the presumption that the renewal of the note renews the mortgage lien; but the burden of proof is on the party asserting such proposition fi> show that it was not the intention that such renewal of the note should renew or extend the mortgage. (Brown v. Dunckel, 46 Mich. 29, 8 N. W. 537; Oliphint v. Eckerley, 36 Ark. 69; Vick v. Smith, supra; California Bank v. Brooks, 126 Cal. 198, 59 Pac. 302; Barber v. Babel, 36 Cal. 11.)

4. At the time defendants executed the second mortgage, on January 20, 1888, to secure the payment of the note of that date, and of the note dated December 20, 1886, there was some discussion relative to the former mortgage, and the defendants were asked to give a new mortgage covering the same property described in the first mortgage. Mrs. Pickering refused to execute such new mortgage, and John Gr. Pickering refused to execute the same for the reason that his wife would not join him; but at the same time he requested the plaintiff to bring suit to foreclose this first mortgage. The facts presented in the agreed statement are not of themselves sufficient as a matter of law to repel the presumption that it was the intention of the parties that the execution of the new note and the new mortgage on other property should extend the lien of the former mortgage.

No question is raised with reference to the inchoate interest of the wife in the trust estate under the deed from the railroad company to Kleinschmidt. We therefore do not discuss that question.

On a consideration of the whole case, we are of the opinion that the judgment appealed from should be reversed, and the cause remanded, with direction to the district court to grant a new trial.

Pee Cueiam. — Por the reasons given in the foregoing opinion, the judgment is reversed, and the cause remanded for a new trial.


author: MR. JUSTICE ITOTLOWAY

text:
    WRIGHT et al., Appellants, v. MATHEWS, Respondent.
    (No. 1,604.)
    (Submitted June 16, 1903.
    Decided June 22, 1903.)

      New Trial — Bettling Statement — Presentation to Judge — Expiration of Time — Effect.
    under Code of Civil Procedure, Section 1173, providing that, if the amendments to- the statement on motion for a new trial prepared by the adverse party are not adopted, the proposed statement and amendments shall, within ten days thereafter, be presented by the moving party to the judge, or delivered to the clerk for the judge, the court must disregard, on appeal, the statement and all questions sought to be presented thereby, when the moving party has failed to comply with such requirement,
    where the Court’s order overruling a motion for a new trial does not indicate the particular ground on which it was made, every legitimate intend- ' ment will be indulged to support it.
    where the statement • on motion for new trial and the defendant’s proposed amendments were1 not presented to the judge within the ten days allowed by Code of Civil Procedure,- Section 1173, it was proper to settle the same, and deny the motion for new trial.

      Appeal from District Court, Fergus County; Dudley Du Bose, Judge.

    ActioN by Frank E. Wright and others against Royal B. Mathews. From a judgment in favor of .defendant, and an order denying their motion for a new trial, plaintiffs appeal.
    Affirmed.

      Mr. James Donovan, for Appellants.

      Messrs. Cort <&'Worden, for Respondent.
   MR. JUSTICE ITOTLOWAY

delivered the opinion of the court.

This was an adverse suit instituted in the district court of Fergus county, Montana, pursuant to Section 2326 of the Revised Statutes of the United States (U. S. Comp-. St.. 1901, p. 1430), to determine the relative rights of the parties to certain mineral lands covered by conflicting claims. Upon the pleadings issues were joined, and the cause tried to the court and a jury. At the close of plaintiffs’ case, upon motion of the defendant, the court granted a nonsuit, and entered a judgment in favor of the defendant for costs, from which judgment and an order denying their motion for a new trial the plaintiffs appeal.

The respondent insists that the motion for new trial was properly denied, for the reason that the proposed statement on motion for new trial and the amendments offered thereto were not presented to the judge for settlement, or left with the clerk for the judge, within the time allowed by law or the order of the court. The record discloses that a decision was rendered in the cause on the 1th day of September, 1899, and on that day the plaintiffs were granted thirty days in addition to the time allowed by law to prepare, serve and file their statement on motion for new trial. The statement was served on defendant on October 9th, and on October 11 th defendant prepared and served upon the plaintiffs his amendments thereto. Nothing further was done until October 30th, when the proposed stater ment, with the amendments, were filed with the district clerk, and on October 31st the plaintiffs notified the defendant that they would not accept his proposed amendments. On November 11th plaintiffs gave notice that they would call the matter up for settlement on November 16th. The defendant thereupon filed and served written objection to the settlement of the proposed statement upon the ground that such statement and amendments offered thereto were not presented by the moving parties •to the judge, or delivered to the clerk of the court for the judge, within ten days after the date upon which the amendments were served upon them. This objection was by the court considered and overruled, but incorporated in and made part of the statement, and such statement was thereupon settled. On March 24, 1900, the court overruled plaintiffs’ motion for a new trial.

Section 1113 of the Code of Civil Procedure provides: “Sec. 1113. * * * (3) If the motion is to be made upon a statement of the case, the moving party must, within ten days after service of the notice, or such, further time as the court in which the action is pending or the judge thereof may allow, prepare a draft of the statement and serve the same, or a copy thereof, upon the adverse party. If such proposed statement be not agreed to, by the adverse party, he must, within ten days thereafter, prepare amendments thereto- and serve the same, or a copy thereof, upon the moving party. If the amendments be * * * not adopted, the proposed statement and amendments shall, within ten days thereafter, be presented by the moving'party to the judge, upon five days’ notice to the adverse party, or delivered to the clerk of the court for the judge.” The record, then, discloses that the plaintiffs did not comply with the requirements of this section, in this : that they did not, within ten days after October 17th, present the proposed statement and amendments to the judge, or leave them with the clerk for the judge. “A motion for a new trial is a statutory remedy, and can-only be invoked in the manner, within the time, and upon the grounds provided for in the statutes.” (Ogle v. Potter, 24 Mont. 501, 62 Pac. 920.)

The question raised here is analogous to one where the statement is not served within the time provided by law or the order of the court, and it has hecome the settled doctrine in this state that a disregard by the moving party of the plain requirements of Section 1173, supra,, will defeat his right to have the statement considered for any purpose.

The order of the district court overruling the motion for a new trial does not indicate the particular ground upon which it was made, and it is not necessary that it should, for-every legitimate intendment will be indulged in favor of the order. If it can be supported for any reason, it will be done. (Beach v. Spokane R. & W. Co., 25 Mont. 367, 65 Pac. 106.)

When the statement and proposed amendments, with defendant’s objection, were presented to the district judge, he could properly refuse to settle the statement, or he could settle the same, and deny the motion for a new trial. In this instance be followed tbe latter cqurse, and in so doing committed no error. (Sweeney v. Great Falls & C. Ry. Co., 11 Mont. 34, 27 Pac. 347; Power v. Lenoir, 22 Mont. 169, 56 Pac. 106; Beach v. Spokane R. & W. Co., supra; Burns v. Napton, 26 Mont. 360, 68 Pac. 17; Stromberg-Mullins Co. v. Dist. Court, 28 Mont. 123, 72 Pac. 412.)

This disposes of' tbe appeal from tbe order overruling tbe motion for a new trial, for, under tbe circumstances presented by tbe record, “this court must disregard tbe statement and all questions sought to be presented thereby.” (Power v. Lenoir, supra.)

There is in tbe record before us for consideration then only the judgment roll, and an examination of that discloses no error.

-Tbe judgment and order appealed from are affirmed.

Affirmed.


author: MR. CHIEF JUSTICE BRANTLY

text:
    STATE ex rel. WEINSTEIN CO., Relator, v. DISTRICT COURT OF THE FIRST JUDICIAL DISTRICT et al., Respondents.
    (No. 1,949.)
    (Submitted May 23, 1903.
    Decided June 29, 1903.)

      Claim and Delivery — Parties— Substitution — Appealable Orders — C ertiorari.

    1. In an action in claim and delivery, tbe court, under Code of Civil Procedure, Section 588, cannot make an order substituting in place of tbe defendant a claimant of tbe property,’ on the application of tbe defendant who has no control over the property (because of its previous delivery to tbe sheriff), and no power to deliver it on tbe court’s order.
    2. In ’ order that certiorari may lie, three requisites are indispensable, namely : excess of jurisdiction; absence of tbe right of appeal; and lack of any other plain, speedy, and adequate remedy.
    3. under Session Laws 1899, p. 135, amending Code of Civil Procedure, Section 1722, and providing for an appeal from a final judgment, an order substituting a claimant of property, on application of defendant in a claim and delivery action, in lieu of defendant, is not a final determination from which an appeal is allowable.

      4. under Code of Civil Procedure, Section 1742, providing that on appeal from a judgment the court may review any intermediate order or decision excepted to which involves the merits or necessarily affects the judgment, an intermediate order substituting a claimant of property for defendant in a claim and delivery action may be reviewed on appeal from the final judgment, on exception reserved, and hence certiorari will not lie to have the order annulled as in excess of jurisdiction.
    OeigiNal application for certiorari by tbe state, on tbe relation of tbe Weinstein Company, to tbe district court of tbe First judicial district and Hon. J. M. Clements, a judge thereof, to have an order annulled as in excess of jurisdiction.
    Dismissed.

      Messrs. Nolan <& Loeb, for Relator.

      Messrs. McOonnell & McConnell, for Respondents.
   MR. CHIEF JUSTICE BRANTLY

delivered tbe opinion of tbe court.

Certiorari to tbe district court of Lewis and Clarke county. On May 9, 1903, tbe relator brought an action in that court in claim and delivery against one Thomas Travis to recover tbe possession of certain dry goods, hardware and jewelry. Tbe complaint is in tbe ordinary form, alleging title and right of possession in plaintiff. It further alleges “that tbe defendant became possessed of tbe said goods and chattels, and wrongfully detains tbe same from the plaintiff,” and has refused . to return them to tbe plaintiff, though demand has been made for them, to tbe damage of plaintiff in tbe sum of $100 . Tbe prayer is for a return of tbe property, or for tbe sum of $300 in ease return cannot be bad, and for $100 damages. Upon tbe filing of tbe complaint, tbe relator, desiring to have tbe property delivered to it, made tbe affidavit required by tbe statute and delivered tbe same, with proper indorsement thereon, to tbe sheriff, accompanied by a good and sufficient undertaking in double tbe value of tbe property alleged in tbe complaint. Thereupon tbe sheriff took tbe property from tbe defendant. On May 13th, after notice to tbe relator, tbe plaintiff in tbe action, and to one Paul A. Tomcbeck, tbe defendant applied to tbe court for an order substituting tbe said Paul A. Tomcbeck as defendant in tbe action in bis stead, and discharging bim from liability. Tbe application was supported by an affidavit to tbe effect that tbe defendant neither bad nor claimed an interest in tbe property, and that tbe said Tomcbeck, without collusion on bis part, bad also made demand upon bim for tbe property, claiming to be tbe owner of it. After argument by counsel for relator and tbe said Travis, counsel for tbe latter also representing Tomcbeck, the court made an order discharging tbe defendant from liability to either claimant and substituting Tomcbeck as defendant in tbe action. At tbe time the order was made tbe property was in tbe possession of tbe sheriff, and this fact appeared from tbe affidavit of Travis. This proceeding was thereupon instituted to have tbe order annulled -as in excess of jurisdiction.

Tbe defendant in this proceeding has interposed a motion to quash tbe writ, on tbe grounds that tbe district court bad jurisdiction to make tbe order, and that tbe relator has a plain, speedy and adequate remedy by appeal.

1. Did tbe district court have jurisdiction to make tbe order ? Tbe application was made under Section 588 of tbe Code of Civil Procedure, which, so far as applicable to this case, declares :

“Sec. 588. A defendant against whom an action is pending upon a contract, or for specific personal property, may at any time before answer, upon affidavit that a person not a party to tbe action makes against bim, and without any collusion with bim, a demand upon such contract, or for such property, upon notice to such person and tbe adverse party, apply to tbe court for an order to substitute such person in bis place, and discharge bim from liability to either party, on bis depositing in court tbe amount claimed on tbe contract, or delivering tbe property, or its value, to such person as tbe court may direct; and tbe court may, in its discretion, make tbe order. * * *”

Whether tbe order shall be made is lodged in tbe sound discretion of tbe court having jurisdiction of the action. To move this discretion, however, it is indispensably necessary that certain facts exist and are made to appear in tbe affidavit. These are: (1) That an action is pending and the applicant is the defendant; (2) that the person sought to* be substituted is a stranger to the action; (8) that such third person has made a claim upon the defendant for the property or fund in controversy, without collusion with the defendant, which necessarily implies that the defendant has no interest in the property or fund; and (4) that the applicant is able and stands ready to pay into court the amount of the fund or to deliver the property or its value to such person as the court may direct. At the time the application was made it was not in the power of Travis to deliver the property under the order of the court; indeed, the order made is silent as to the disposition of the property for the time being, the court evidently entertaining the view that, as it was in the possession of the sheriff, it was not necessaray to make any order with reference to it. In older to have the benefit of the statute, Travis should have availed himself of the privilege granted him under Section 849 of the Code of Civil Procedure, and regained possession from the sheriff, thus enabling the court, in making the order, to put the plaintiff in 'the action and the substituted defendant in the same relative positions in which the plaintiff and he himself were at the beginning of the action. When the order was made, the defendant had no control of the property. It was in the hands of the sheriff, ready to be delivered to the plaintiff in case the option granted by Section 849, supra, was not exercised by the defendant. The court could not make any order with reference to a disposition of it; in fact, it had no jurisdiction to make any order with reference to it, nor to control the disposition of it in any way, except to render a final judgment in regard to it at the conclusion of the action. Though the statute grants the right to the order upon a proper showing, the showing made must meet all of its substantial requirements; otherwise, the court has no power to make the order. (Edgerton v. Ross, 6 Abb. Prac. 190; Vosburgh v. Huntington, 15 Abb. Prac. 254; Pelham Hod Elevating Co. v. Baggaley (Cily Ct. N. Y.), 12 N. Y. Supp. 219.) It must follow, therefore, that the order in question here was made in excess of jurisdiction.

2. Is the order appealable? If so, or if there is any other adequate remedy, certiorari will not lie to review it; for, in order that this remedy may avail, three requisites are indispensable, namely, excess of jurisdiction, absence of the right of appeal, and lack of any other plain, speedy and adequate remedy. (Section 1941, Code Civ. Proc.; State ex rel. King v. Dist. Court, 24 Mont. 494, 62 Pac. 820; State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395.)

The defendant contends that the order is a final judgment, and is appealable under the provisions of Subdivision 1 of Section 1122, as amended by the Act of 189'9 (Sess. Laws 1899, page 146). This contention rests upon the assumption that, it is a final determination of the rights of the parties so far as concerns the relator and Travis. With this view we do not agree. The order has none of the essential characteristics of a final judgment. It is not to- be executed by a writ or other process; nor is any act required of any of the parties by the doing of which he will be injured in the meantime, in the sense, at least, that he will be finally deprived of any substantial personal or property right, or suffer an invasion thereof, unless he can prosecute an appeal directly from the order itself. Prom this point of view it does not fall within the principle of the case of State ex rel. Heinze v. District Court, 28 Mont. 227, 72 Pac. 613, but is merely an interlocutory or intermediate order, and falls within the class of orders which may be reviewed upon appeal from the final judgment in the case, upon exception reserved, under Section 1742 of the Code of Civil Procedure; otherwise, this and all similar orders, incidentally determinative of some right of a party to an action, must be held to be final judgments, within the definition of that term as laid down in Section 1000 of the Code of Civil Procedure. Therefore no direct appeal lies under Section 1722, supra.

It remains to inquire whether there is any other adequate remedy. In our judgment there is. In case it turns out upon final judgment that the plaintiff has suffered a prejudice, or has been aggrieved by a failure to obtain all his rights in the premises, he may appeal from the final judgment, whereupon this court, having the order before it upon exception, may review it under Section 1142, supra. For the time being the result is, perhaps, inconvenience and delay, but not more than may be the result of any other intermediate order made during the progress of any ease before a trial is. finally reached on the merits. Nor does this case fall within the exception recognized by this court in State ex rel. A. C. M. Co. v. Dist. Court, 26 Mont. 396, 68 Pac. 570, 69 Pac. 103, State ex rel. B. & M. C. C. & S. M. Co. v. Dist. Court, 27 Mont. 441. 71 Pac. 602, and similar cases, in which interlocutory orders have been annulled by the writ of certiorai"i. In this class of cases, though the particular order may be reviewed upon appeal from the final judgment, such review is inadequate, for the reason that all -the- injury which the- complaining party may suffer will have been done long before review can be reached upon appeal from the final judgment.

It follows that, though the order was in excess of jurisdiction, the remedy by appeal from the final judgment is inadequate, and the writ should have been denied. The writ is therefore quashed, and the proceeding dismissed.

Dismissed.


author: MR' JUSTICE HOLLOWAY

text:
    WETZSTEIN, Appellant, v. BOSTON & MONTANA CONSOLIDATED COPPER & SILVER MINING COMPANY, Respondent.
    (No. 1,618.)
    (Submitted June 19, 1903.
    Decided July 1, 1903.)

      Actions —■ Demurrer — Another Action Pending — Appeal— Identity of Parties — Same Cause of Action.

    1. Where a complaint shows that a former action, between the same parties and for the same cause, is before the supreme court undetermined on appeal, a demurrer is properly sustained thereto.
    2. The action is between the same parties when it appears from the complaint that the defendant in the action is the successor in interest of the defendant in a former action.
    o. The action is for the same cause, if based on the same assertion of title as in a former action, though the plaintiff in the subsequent action prays for an injunction, the appointment of a receiver, and for an accounting, where he was entitled to such relief as to the injuntion and receiver in the former action, and fails to state facts sufficient to constitute a cause of action for an accounting, by not averring a demand for*an accounting and a denial thereof by defendant.

      Appeal from District Court, Silver Boio County; John Lindsay, Judge.

    Action bv Adolph Wetzstein against the. Boston & Montana Consolidated Copper & Silver Mining Company. From a judgment in favor of defendant, plaintiff appeals.
    Affirmed.

      2Iessrs. Mcllatton & Cotter, and Messrs. Toole & Bach, for Appellant.
    The former action does not constitute any bar to or abatement of this action; until the final determination of the former action, the plaintiff had a right to institute and- maintain this action. (Code of Civil Proe. Sees. 1895, 1893; Murray v. Greene, 04 Cal. 369; Harris v. Barnhart, 91 Cal. 546, 32 Pac. 589; Naftzger v. Gregg, 99 Cal. 83; Broivn v. Campbell, 100 Cal. 636; lístate of Blythe, 99 Cal. 412; Storey v. Storey &

      I sham (Jo., 100 Cal. 41; Montana Mining Qo. Ltd.'v. St. Louis M. £ 8. Co., 58 Pac. 8.70.)
    Tlie plaintiff’s position is that lie is a cotenant ivitli the defendant; that the defendant denies his title, and has ousted and excluded and still excludes him from the common property. At common law a tenant in common had'the right to> enter upon the whole and every; part of the property. (Carpenter v. Webster, 21 Cal. 544-546; Tevis v. Hieles, 38 Cal. 234-238; Freeman on Cotenancy, 81.) In all cases a tenant in common can sue his cotenant. (Section 586, Code Civil Procedure of Montana.) Under the Act of February 28, 1899, Laws, of Montana, Sixth Session, page 134, the plaintiff has a right to maintain this action. Under the circumstances alleged in the complaint he is entitled thereunder to the relief prayed.
    An action in equity for an accounting is a proper one. (11 Ajm. & Eng. Emcy. Law, p.. 1131, note 2; Ward v. Ward, 29 L. E. A. 449, note; Gage v. Gage, 28 L. K. A. 849; Fitzgerald v. Ciarle, 11 Mont. 100; McCord v. Oaleland Q. M. Co., 64 Cal. 134; Clay v. Field, 115 U. S. 260; Steivart v. Stewart, 63 N. W. 886; A. C. M. Co. v. 13. £ B. Co., 11 Mont. 519.)

      Messrs. Forbis £ Evans, for Respondents.
    Cited: 1 Etaey. PI. & Pr. pp. 150-152, and cases cited; Van Fleet on Former Adjudication, Secs. 1017, 1086; Crane v. Larson, 15 Pac. 326; Holloway v. Holloway, 103 Mo. 214; Mantle v. Speculator Mining Co., 11 Pae. 665; 1 Ehcy. PL & Pr. pp. 163, 98 ; Mullen v. Mullock, 22 Kan. 598; Colt v. Partridge, 1 Met. 519; Damon v. Denny, 54 Conn. 2.53; Code of Civil Proc. Sec. 950; French Bank Case, 53 Cal. 553; Magau-ran v. Tiffany, 62 How. Pr. 251; Perry v. Foster, 62 How. Pr. 228; Jolly v. Bryan, 86 N. O. 451.
   MR' JUSTICE HOLLOWAY

delivered the opinion of the court.

This action was commenced in the district court of Silver Bow county, Montana, to secure a decree establishing plaintiffs title to an undivided, one-fourth, interest in the Comanche mining claim, to have the defendant declared to hold the same as trustee for the benefit of the plaintiff, to compel the conveyance of such interest to him, to secure the appointment of a receiver to work the property, an injunction to restrain defendant from converting to its own use ores taken from plaintiff’s alleged one-fourth interest in the claim, and for an accounting by the defendant for ores extracted from the claim from the time it came into possession of the same. The complaint sets forth at length the history of the Comanche mining claim, and, among other things, alleges that it was located in 1879 by Turner and Upton; that Largey, Zenor and Bielenberg succeeded to Turner’s interest; that Upton conveyed a one-fourth interest in the claim to Tong, and afterwards a one-fourth interest to H. L. Frank, who conveyed the same to this plaintiff; that, while Upton continued to own a one-fourth interest in the property, Tong, Largey, Zenor and Bielenberg wrongfully and fraudulently, and with intent to acquire for themselves the right to Upton’s undivided one-fourth interest in the claim, made application for patent, and in said application fraudulently omitted and excluded Upton’s name; that they received a patent, organized the Comanche Mining Company, and assumed to convey the entire property to such company, which had actual notice of plaintiff’s alleged claim of interest therein; that this plaintiff in 1894 commenced an action in the district court of Silver Bow county against the Comanche Mining Company, Largey, Zenor, Bielenberg, Warren and Tong, to have them declared trustees of an undivided one-fourth interest in the property for his benefit, and to require a conveyance of such interest to him; that on the date of the commencement of such action plaintiff filed with the county clerk and recorder of Silver Bow county, where the property was located, a notice of lis pendens; that such action was tried on its merits, and a decree entered adjudging that this plaintiff had no right, title or interest in the property whatever; that from such decree and an order denying his motion for a new trial he appealed to the supreme court; that sueb appeal was still pending undetermined in tbe supreme court at tbe date of tbe commencement of tbis action; that, in addition to tbe notice conveyed by tbe notice of lis pendens, tbis defendant bad actual notice of tbe claim of tbis plaintiff, but, notwithstanding sucli notice, in 1896 it assumed to purchase from tbe Comanche Mining Company the entire property, and immediately thereafter went into possession and commenced to extract large quantities of ore from, tbe same. To tbis complaint tbe defendant interposed a demurrer upon tbe following, among other, grounds: (2) That another action is pending between the same parties for the same cause; and (3) that the complaint does not state facts sufficient to constitute a cause of action. This' demurrer was by tbe court sustained, and, tbe plaintiff declining to amend, judgment was entered in favor of defendant' for its Costs, from which this appeal is prosecuted.

Section 680 of tbe Cbde of Civil Procedure provides that a demurrer may be interposed to a complaint upon tbe following ground: “(3) That there is 'another action pending between tbe same parties for tbe'same cause.” In order to. invoke successfully tbis ground of demurrer, it must appear from tbe face of tbe complaint (1) that another action is pending, (2) that it is between tbe same parties, and (3) that it is for the same cause.

1. Section 1895 of the Code of Civil Procedure provides that an action is pending from tbe commencement thereof until the final determination on appeal, or until tbe time for appeal has expired, unless the judgment has been sooner satisfied. It appears from tbe complaint that at tbe date of tbe commencement- of tbis action the former action was before the' supreme court undetermined on appeal, and was therefore then pending within tbe meaning of Subdivision 3 of Section 680,1 supra. This is tbe view taken of a like provision by the Supreme Court of California in Fish v. Atkinson, 71 Cal. 452, 10 Pac. 374, 12 Pac. 498.

2. Tbe plaintiff in each action is admittedly tbe same. It appears from tbe complaint that tbe 'defendant in tbis action is the successor in interest of the defendants in the former action; that it purchased the property pending such litigation, and, in addition to the knowledge brought home to it by the notice of Us pendens, it had actual notice of plaintiff’s claim of interest at the date it purchased the property, and this successive interest, or relationship to the same right of property constituted this defendant a privy of the defendants in the former action: The very purpose of lis pendens is, and indeed the very purpose which the plaintiff must have had in filing such notice was, to bind any subsequent purchasers, by the decree which he might obtain in the action, to the same extent as though actually parties to the litigation; and the reason of the rule that the term “parties,” as used in Subdivision 3 of Section 680, supra, includes privies, then becomes apparent, and this we understand the rule to be. (1 Cyc. 33; 21 Ency. Law (2d Ed.), 602; Crane v. Larsen, 15 Ore. 345, 15 Pac. 326; Holloway v. Holloway, 103 Mo. 274, 15 S. W. 536.) Applying this test, it is obvious that the parties to this and the former action are the same within the meaning of Section 680, above.

3. Was the former action for the same cause as the present one ? That action was brought to have the defendants declared to hold an undivided one-fourth interest in the Comanche claim in trust for the plaintiff, and, primarily, the present action is brought for the same purpose and to secure the same result. The claim made by the plaintiff in each action is the same, based upon the same assertion of title, and none other. As incidents to this primary relief, and dependent absolutely upon this particular claim of title, the plaintiff in this action asks for an injunction, the appointment of a, receiver, and an accounting. The general rule for determining the question now’ under consideration is, if in the former action a judgment had been obtained upon the merits, and that judgment had become final, it could be pleaded in bar of this action. (1 Cyc. 28; Damon v. Denny, 54 Conn. 253, 7 Atl. 409; Mullen v. Mullock, 22 Kan. 598.) Or, stated in other words, could the plaintiff in the former action have obtained all the relief -which he alleges be is entitled to in tbe present action ? If so, be will be required to exhaust bis remedy in that action, and Avill not be permitted to harass or annoy tbe defendant by maintaining this one. There is reason for this rule; for, if tbe plaintiff failed in tbe former action and was declared to have no interest whatever in the property, then be could not maintain this action, and tbe decree in tbe former would be an absolute bar to this, for bis claim of right is based upon tbe same alleged title in each instance. If be prevailed in the former action, tbe defendant in this one, having purchased with actual knowledge of bis alleged claim, would be bound by such decree to tbe extent, at least, which it established tbe plaintiff’s interest in tbe property and afforded him ancillary relief by way of injunction or the appointment of a receiver, and therefore, under such circumstances, this action to that extent would be entirely useless; for, if be is entitled to an injunction or tbe appointment of a receiver in this action, be was equally entitled to such relief in bis former suit.

But it is contended that tbe plaintiff is entitled to an accounting by tbe defendant company for ores éxtracted since it came into possession of tbe property, and to that extent, át least, tbe causes of action are not tbe same. This gives rise to tbe inquiry; Does tbe complaint state facts sufficient to constitute a cause of action for an accounting ? It is conceded that tbe defendant is tbe owner of an undivided tbree^fourtbs interest in tbe claim in controversy, and therefore no wrong can be imputed to its possession of the common property. In order to change the' character of such occupation, tbe plaintiff must have been wrongfully denied participation in tbe fruits of tbe mining operations carried on to the extent of bis interest. If be bad received bis alleged share of tbe proceeds no complaint could be made upon this branch of tbe case, or, if be knew or bad tbe means of knowing just what suck share actually amounted to, be would have no cause of action for an accounting; for tbe law does not assume to< do for parties that which they may rightfully do for themselves, and particularly does not encourage needless controversies in tbe courts.

The gist of an action for an accounting is tbe inability of tbe plaintiff to procure tbe same bimself, and tbe refusal of tbe defendant to render sucb accounting to him; and tbis suggests, tbe rule, general in its application, tbougb apparently seldom announced, tbat a demand by tbe plaintiff for an accounting and a denial thereof by tbe defendant are necessary prerequisites to be pleaded and proved, in order to maintain an action for an accounting. (1 Ency. Pl. & Pr. 98; Jolly v. Bryan, 86 N. C. 457; Smith v. Lawrence, 26 Conn. 468; Southworth v. Smith, 27 Conn. 355, 71 Am. Dec. 72; Kennicott v. Leavitt, 37 Ill. App. 435.) In tbe absence of an allegation of demand and refusal, we are of tbe opinion tbat tbe complaint does not state facts sufficient to constitute a cause of action for an accounting, and, as tbe plaintiff could bave obtained in tbe former action all other relief which be claims for himself in tbis, we bold tbat at tbe date of tbe commencement of tbis action tbe former action was then pending between tbe same parties for the same cause, and in sustaining tbe demurrer tbe lower court committed no error. Tbe judgment is affirmed.

Affirmed.


author: MR. CHIEF JUSTICE ERANT'LY

text:
    CORNELL et al., Appellants, v. MATTHEWS et al., Respondents.
    (No. 1,622.)
    (Submitted June 19, 1903.
    Decided July 9, 1903.)

      Appeal — Record—Certified Copies of Papers.

    1. Under Code of Civil Procedure, Section 1738, declaring- that, on an appeal from an order granting a new trial, the appellant must furnish the court with a copy of a notice of appeal, of the order appealed from, and of the papers designated in Section 1176, etc., the court can only consider “copies” of the papers referred to; and hence a record on appeal, composed of original papers withdrawn from the files of the district court, will not support an appeal.
    2. The supreme court has no jurisdiction of an appeal unless the record on appeal conforms to the requirements of the statute.

      Appeal from District Court, Leíais and Clarice County; S. II.. Mclniire, Judge.

    AotioN by J. R. Cornell and another against Lyman A.. Matthews and another.- From an order granting a new'trial,, plaintiffs appeal.
    Appeal dismissed.

      Mr. Albert I. Loeb, for Appellants.

      Mr. T. J. Walsh, for Respondents.
   MR. CHIEF JUSTICE ERANT'LY

delivered the opinion of the court.

This action was brought by plaintiffs for the purpose of perpetually enjoining defendants from obstructing or otherwise interfering wdth a right of way which plaintiffs claim to have' over the lands of the defendants. The district court found fra-the plaintiffs, and directed the injunction to issue as prayed. The defendants thereupon moved for a new trial.' • From the' order granting it the plaintiffs have appealed.

None of the questions submitted by appellants may be considered or decided, because of the condition of the record filed in this court. Besides a copy of the notice of appeal and the index, it consists only of the original bill of exceptions settled by the district court granting the order. This has embodied in-it the original statement prepared by defendants and settled by the court in support of the motion. It thus appears that the-entire record, with the exception ‘ of the notice and index, is made up of original papers which have been withdrawn frqm the files of the district court. Section 1136 of the Code of Civil Procedure provides that, “on an appeal from a final judgment, the appellant must furnish the court with a copy of the notice' of appeal, of the judgment roll, and of any bill of exceptions or statement in the case” upon which he relies. Section 1738 declares that, on appeal from an order granting or refusing a new trial, the appellant must furnish the court with a copy of’ the notice of appeal, of the order appealed from, and of the papers designated in Section 117 6. This latter section enumerates the papers which shall constitute the record on appeal from an order granting or refusing a new trial. It is manifest from these provisions, when taken together with Sections 1739 and 1740, that the record presented to this court must consist of certified copies, instead of the original papers constituting the files of the district court. The reason underlying these provisions is also manifest. The records of the district court must remain permanently on file with the clerk, except when original exhibits which have been made a part of the record in that court may be certified to’ this court under the rule. (Rule VII.) Eiven in these cases such exhibits are required to remain permanently among the files of this court only when bound in the-record. When not bound in the record, they may be withdrawn and returned to the files of the district court, where they belong. Everything else, however, becomes a part of the records of this, court, and must remain in the custody of the clerk. Such being the case, only records properly certified up by copy can lawfully become and remain constituent parts of the records of' this court; otherwise, important parts of the records of the various district courts throughout the state would become incorporated in the records of this court, and to this extent the character of those courts as courts of record would be destroyed.

Erom these considerations it follows that the record in this ease is not such a one as that this court may consider or determine any question sought to be presented by it. It is of no consequence whether the files of the district court are incorporated in the record on appeal by the implied consent of parties or by permission of the judge of the district court, as seems to have-been the case here. Furthermore, this court has no jurisdiction of the appeal, unless tire requirements of these statutory provisions have been observed. Its appellate jurisdiction may be exercised only under limitations and regulations prescribed by law touching the time within which and the mode by rvhich appeals may be taken. (Constitution, Article VIII, Sec. 3 State ex rel. Whiteside v. District Court, 24 Mont. 539, 63 Pac. 395; Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829; Finlen v. Heinze, 27 Mont. 123, 70 Pac. 517.) The provisions of tbe statute above referred to define tbe mode by wbicb appeals may be'effectually taken to tbis court, and are mandatory. (Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.)

Tbe appeal must therefore be dismissed. It is so- ordered. It is further ordered that tbe clerk of tbis court return to tbe clerk of tbe district court the bill of exceptions, after detaching therefrom tbe cover, the index, tbe copy of tbe notice of appeal, and tbe certificate.

Dismissed.


author: MB. COMMISSIONER OLAYBERQ- Mu. Justice Hollo wat:

text:
    BECK et al., Appellants, v. HOLLAND et al., Respondents.
    (No. 1,627.)
    (Submitted June 22, 1903.
    Decided July 9, 1903.)

      Appeal — Record—Sufficiency.
    A record on appeal, consisting only of a bill of exceptions, notice of appeal, and certificate of tbe elerlr, and which does not purport to contain a qerti-fiied copy of the judgment roll as such, part of the papers constituting which are contained in the bill of exceptions, the existence of others merely being recited therein, is insufficient to give the court jurisdiction.

      Appeal from District Gourt, Silver Bow Gownty; William Clancy, Judge. ■

    Action by J. E. Beck and others against John G. Holland and another. From a judgment for defendants, plaintiffs appeal.
    Dismissed.

      Air. B. S. Thresher, for Appellants.

      Mr. Edwin M. Laonb, and Mr. J. L. Templeman, for Respondents.

      Rehearing granted October 9, 1903.
   MB. COMMISSIONER OLAYBERQ-

prepared tlie opinion for the court.

The record in this case consists only of a bill of exceptions, notice of appeal, and certificate of the clerk, and does not purport to contain a certified copy of the judgment roll as such. The bill of exceptions contains copies of a portion of the papers constituting the judgment roll, and merely recites the existence of others. We have lately decided that such a. record is insufficient to> give the court jurisdiction. (Featherman v. Granite County, 28 Mont. 462, 72 Pac. 972.)

Wo therefore are of the opinion that the appeal should be dismissed.

Per CuRJAM. — For the reasons stated in the foregoing opinion, the appeal is dismissed.

Mu. Justice Hollo wat:

The record recites that from the date of the commencement of this action to the date of judgment a number of changes of parties had been made by the court j but the record nowhere contains copies of the orders relating to such changes. Section 1196, Code of Civil Procedure, specifies what papers shall constitute the judgment roll, and, among others, are copies of orders relating to change of parties. In the absence of these, the judgment roll is not complete, or, in other words, no judgment roll is before this court, and we have m> jurisdiction to consider the appeal on its merits. (Stanton v. Lewis, 28 Mont. 267, 72 Pac. 658.) For this reason I concur in a dismissal.


author: MR. COMMISSIONER CLAYBERG Mr. Justice Holloway:

text:
    FEATHERMAN et al., Respondents, v. GRANITE COUNTY, Appellant.
    (No. 1,605.)
    (Submitted June 17, 1903.
    Decided July 9, 1903.)

      Appeals — Jurisdiction, of Supreme Oourt — Statutory Regulations — Record on Appeal — Judgment Roll — Certificate— Sufficiency — Bill of Exceptions.

    1. under Constitution, Article VIII, Sections 2, 3, 15, the supreme court has jurisdiction to entertain appeals or writs of error only when the statutory requirements have been complied with.
    2 under Code of Civil Procedure, Section 1736, providing that on appeal from a final judgment, appellant must furnish the court with a copy of the notice of appeal, judgment roll, and bill of exceptions, or statement in the case, the presence of a copy of the judgment roll in the record is jurisdictional, and without it the court cannot consider any question on the appeal.
    3. Under Code of Civil Procedure, Section 1739, providing that the copies of papers to be furnished on appeal must be certified to be correct by the clerk or attorneys, on appeal from a final judgment it must be certified that the record contains a true copy of the judgment roll. A certificate which only states that the transcript contains true copies of certain designated papers contained in the judgment roll is insufficient.
    4. The requirement of Code of Civil Procedure, Section 1736, providing that, on appeal from a final judgment, appellant must furnish the court with a copy of the notice of appeal, judgment roll, and bill of exceptions, or statement in the case, are not complied with by simply inserting in the record a copy of the bill of exceptions, or statement, even though it includes copies of all papers constituting the judgment roll.

      Appeal from District Court, Granite County; 'Welling Nap-ton, Judge.

    Action by Jolm A. Eeatbermaa and James B. Featberman against Granite County. From, a judgment for plaintiffs, defendant appeals.
    Dismissed.

      Mr. II. 77. Rodgers, and Messrs. Durfee & Brown, for Appellant.

      Messrs. Toole & Bach, for Eespondents.
   MR. COMMISSIONER CLAYBERG

prepared tbe opinion for tbe court.

Appeal from a final judgment. Tbe record consists only of .a statement on motion' for a new trial, tbe journal entry overruling sucb motion, tbe notice of appeal from tbe judgment, and tbe certificate of tbe clerk of tbe court. Incorporated in tbis statement are copies of tbe pleadings, tbe decision of tbe court, and tbe judgment appealed from. It does not purport to contain any separate transcript or copy of tbe judgment roll in tbe case.

Respondents suggest that tbe record does not contain tbe judgment roll properly certified, and tbis question must be first considered.

Tbe appellate jurisdiction of tbe supreme court is given by tbe Constitution in tbe following language: “Tbe supreme court, except as otherwise provided in tbis Constitution, shall have appellate jurisdiction only, which shall be coextensive with the state, and shall have a general supervisory control over all inferior courts, under sucb regulations and limitations as may be prescribed by law.” (Article VIII, Sec. 2.) “The appellate jurisdiction of tbe supreme court shall extend to all cases at law and in equity, subject, however, to sucb limitations and regulations as may be prescribed by law.” (Article VIII, Sec. 3.) “Writs of error and appeals shall be allowed from tbe decisions of tbe said*district courts to tbe supreme court under sucb regulations as may be prescribed by law.” (Article VIII, Sec. 15.) Tbe limitations which “may be prescribed by law,” mentioned in Section 3, supra, refer to statutes in existence at-ibe time of the adoption of tbe Constitution, and adopted by the schedule which is a part thereof, or statutes thereafter to be passed, specifying under what limitations appeals may be taken. Tbe regulations which “may be prescribed by law,” mentioned in each of these sections, also refer to statutes adopted or to be enacted, as above stated, providing tbe methods by which appeals and proceedings upon writs of error may be perfected. These clauses have been considered by the court in the following cases: State ex rel. Whiteside v. First Judicial District Court, 24 Mont. 539, 63 Pac. 395; Finlen v. Heinze, 27 Mont. 107, 69 Pac. 829; Finlen v. Heinze, 27 Mont. 123, 70 Pac. 517.

It is, therefore, clear that, unless an appeal or writ of error is within the limitations prescribed in these statutes and perfected according to the regulations provided thereby, the court has no jurisdiction to 'entertain it. Therefore, to determine whether it has jurisdiction of an appeal or writ of error in any case, we must consider and determine at least two things: (1) Whether the ajipeal or writ of error is within the limitations prescribed by the statute; (2) whether the appeal or writ of error is perfected in accordance with the regulations provided by the statutes; and, possibly, a third, whether, in* special cases where no specific method is xu’ovided by the statute for the perfection of an appeal, the court will entertain it, under its constitutional jurisdiction, and apply the provisions of statutes providing methods for perfecting appeals in analogous cases, or fix a method by order or rule of court.

There is no doubt but that an appeal from a final judgment is provided for by the Constitution. It is also clear that this is not a special case or proceeding, from which an appeal is given by the Constitution, and no method provided by statute for its perfection. Therefore we need only consider the proposition whether, in taking the appeal in this case, the regulations prescribed by law have been followed. The methods of ^taking appeals, being statutory and jurisdictional, must be followed, in order to give this court jurisdiction to entertain the appeal. (Washoe Copper Co. v. Hickey, 23 Mont. 319, 58 Pac. 866; Creek v. Bozeman Water Works Co., 22 Mont. 327, 56 Pac. 362.)

An examination of the record in this case discloses the following facts:

1. The certificate by which the record is authenticated is in the following form: “I, A. A. Fairbain, clerk of the district court of the Third judicial district of the state of Montana, in and for the county of Granite, hereby certify that the foregoing transcript contains full, true and correct copies of the following papers in cause No. 311, entitled ‘John A. Featherman and Jas. B. Featherman v. Granite County, Montana,’ viz.: Statement on motion for new trial; bill of exceptions; amended complaint; answer to amended complaint; certificate of stenographer; decision of court; judgment; notice of intention to move for new trial; stipulation; journal entry; notice of appeal — as the same appear of record in my office.” As above stated, all papers specified in this certificate, except the journal entry and notice of appeal, are included in the statement on motion for a new trial, and not otherwise inserted. This certificate does not assume to certify that the record transmitted contains a copy of the judgment roll as such. So far as the authentication is concerned, there may have been other papers on file or of record, which are necessarily parts of the judgment roll, under the provisions of Section 1196, Code of Civil Procedure. Under these circumstances, is the court to indulge the presumption that there are no other such papers ?

Section 1736 provides that, “on an appeal from a final judgment, the appellant must furnish the court with a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the ease, upon which the appellant relies. Any statement used on a motion for a new trial may be used on appeal from a final judgment equally as upon appeal from the order granting or refusing a new trial.” The presence of a copy of the judgment roll in the record is jurisdictional. If it does not appear, .the court cannot consider any question upon the appeal. Shall we presume jurisdiction exists, or must it be shown ? If the existence of any jurisdictional fact is to be presumed, why might not the same presumption, based upon the same reasoning, be extended to all jurisdictional facts ? At what point can the court “draw the line?” The judgment roll provided for by the statute, while consisting of several distinct and separate papers, is an entity; and it is a certified copy of this entity wbicb Section 1736 requires as a part of tbe record on appeal. There is no method by which the court can satisfy itself that this entity is included in the record, save by the certificate of the clerk or attorneys attached thereto.

We recognize the proposition that a clerk’s decision as to what papers constitute the judgment roll would not be binding upon the court. The statute designates what it shall contain. The requirements of Section 1739, Code of Civil Procedure, must be complied with by the clerk or attorneys, who must certify that the record contains a true copy of the judgment roll. If the record is in fact deficient through error of the clerk, any party to the appeal may suggest diminution thereof, and have it corrected.

The rule is well settled that, where the statute requires the entire record of the court below to be certified to the supreme court, a certificate which only states that the transcript contains true copies of certain designated papers is insufficient. (Westbrook v. Schmaus, 51 Kan. 214, 32 Pac. 892; Byers v. Leavenworth Lodge, 54 Kan. 321, 38 Pac. 302; Cook v. Challis, 55 Kan. 363, 40 Pac. 643; Tod v. Gurney Ranch Co. (Kan. App.) 53 Pac. 789; Barger v. Sample (Kan. Sup.) 64 Pac. 1026; Scott v. Brown, 9 Kan. App. 870, 61 Pac. 460.)

We therefore conclude that the certificate attached to the record herein is insufficient to show that the record contains a true copy of the judgment roll.

2. As above shown, this record does not assume to contain a transcript of the judgment roll, otherwise than by copies of certain parts thereof, included and embodied in the statement on motion for a new trial. We do not think this is a sufficient certification. The judgment roll consists of such papers as constitute the record of the case in the court below. It should contain only such papers as the statute makes a part of that record.

The purpose of a bill of exceptions or statement on motion for,a new trial is to enable the party who obtains a settlement of the'same to make something a part of the record of the court which was not of record before. When we consider this purpose, we can but conclude that the papers which form the judgment roll, being already records of the court, have no place in a statement on motion for a new trial or bill of exceptions. No purpose can be served by their insertion, and, when made, they amount to nothing more than mere recitals that such papers and orders exist.

As before suggested, Section 1736 provides that the record on appeal from a final judgment must contain a copy of the notice of appeal, of the judgment roll, and of any bill of exceptions or statement in the case upon which the appellant relies. If it must contain a copy of the judgment roll and a copy of any bill of exceptions or statement in the case, its language cannot be satisfied by simply inserting in the record a copy of the bill of exceptions or statement in the case, even though it includes copies of all papers which constitute the judgment roll. It is impossible, when the statute requires two separate matters to be placed in the record and certified, that its requirements can be satisfied with the furnishing of one only, even though that one may include all the papers comprised in the other. The Constitution having provided that appeals may be taken under such “regulations as may be prescribed by law,” and the law having prescribed regulations for such purpose, these regulations, for the purposes of construction, must be treated as though set forth in, and made a part of, the Constitution. They therefore become “mandatory and prohibitory.”

A copy of the judgment roll cannot be properly furnished to the supreme court in the statement or bill of exceptions. (Moody v. Nichol, 26 Miss. 109; Smith v. Calcote, 41 Miss. 656; Byrne v. Cummings, 41 Miss. 192; Tunmo v. International, etc. Ry. Co., 34 Fla. 300, 16 South. 180; Van Horne v. Henderson, 37 Fla. 354, 19 South. 659; Curran v. Foley, 67 Ill. App. 543 ; New Orleans, etc. R. R. Co. v. Albritton, 75 Am. Dec. 98; Northrop v. Jenison, 12 Colo. App. 523, 56 Pac. 187.)

It therefore appears that the “regulations prescribed by law,” whereby an appeal may be brought to the supreme court, have not been complied with, and that the court is without jurisdiction to entertain the appeal or consider the case.

We advise that the appeal be dismissed.

Per Curiam. — For the reasons stated in the-foregoing opinion, the appeal is dismissed. It is not, however, without some reluctance that the court feels compelled to announce the conclusion therein stated, because an examination of the records on ajipeal now filed in this court discloses that many attorneys have fallen into the same error as appellant in this case. The point having been made in .the argument, and directly presented, it became the duty of the court to consider and decide it. The conclusion of the commissioners is clearly in accord with the provisions of the statute, and the oases construing them. But this conclusion need not'necessarily work injustice in any, case to he hereafter submitted, for the reason that counsel .may, upon timely application to the court, and upon suggestion of diminution, amend their records, so that the jurisdiction of the court will properly attach.

Mr. Justice Holloway:

For the reason that it does not appear that the record contains a copy of the judgment roll, I concur in the order of dismissal.