Ayotte v. Thomas

50 P. 553, 20 Mont. 223, 1897 Mont. LEXIS 120

• Court: Montana Supreme Court
• Decided: October 18, 1897
• Status: Published

Opinion

Pee Cueiam.

This is an appeal from the action of the District Court of Deer Lodge county in refusing to settle, sign, or allow the plaintiff’s statement of the case on motion for a new trial.

It seems from the record that the court below was of the opinion that the statement on motion for a new trial had not. been served upon counsel for the respondents within the time required by law. “For these reasons, the court was of the opinion that it had no jurisdiction to settle the statement, and therefore declined to do so. ’5 From this action of the court this appeal is prosecuted.

The appellant claims in his brief to be appealing from an order of the court refusing to so settle, sign, or allow the statement; but there is no order of the court refusing to settle and sign the statement. The record shows that the District Court simply declined to settle the statement for the reason given, namely, that the statement was not served in time. Our code does not allow an appeal from such action of the lower court. The' court made no order. It simply refused to make an order.

Haynes, in his work on New Trials and Appeals (Section 155), says: “If the judge refuse to settle any statement whatever, and the refusal is without sufficient cause, a settlement one way or the other may be compelled by mandamus. If he is willing to settle a statement, but declines to settle it in accordance with what the party claims are the facts, application should be made to the Supreme Court for leave to prove the exception.”

It seems in this case, from the record, that the court refused to settle any statement whatever. If the appellant has any remedy, it is not by appeal to this court. For these reasons the appeal is dismissed.

Dismissed.