Carr, Ryder & Adams Co. v. Closser

63 P. 1043, 25 Mont. 149, 1901 Mont. LEXIS 22

Opinion

MR. JUSTICE PIGOTT

delivered the opinion of the Court.

Findings in favor of plaintiff and against the defendants having been entered in the court below, the defendants moved for a new tidal which was granted. The plaintiff has appealed from the order granting it. It now moves this Court to strike from the transcript the notice of intention to move for a new trial, on the ground that the notice is improperly included therein. •

It appears that the clerk of the court below inserted in the transcript a copy of the notice of-intention to- move for a new trial without any request therefor upon the part of the plaintiff. The notice is not made part of any bill of exceptions or statement of the case on' motion for a new trial; nor is it a constituent part of the judgment roll provided for and defined in Section 1196 of the Code of Civil Procedure; neither is it, in- the absence of a bill of exceptions or statement on motion for a new trial containing it, one of the papers required by Sections 1176 and'1738 of the Code of Civil Procedure to be furnished by copy to this Court. It is therefore not a part of the transcript or record on appeal and must be stricken out.

It is therefore ordered that the copies of the notice of intention to move for a new trial, which appear twice in the transcript, be stricken therefrom.

Motion granted.

MR. CHIEF JUSTICE BRANTLY,

having tried the cause in the court below, takes no part in the foregoing opinion.