Ferrat v. Adamson

163 P. 112, 53 Mont. 172, 1917 Mont. LEXIS 12

• Court: Montana Supreme Court
• Decided: January 22, 1917
• Docket: No. 3,719
• Status: Published

Opinions

MR. JUSTICE HOLLOWAY

delivered the opinion of the court.

In March, 1914, J. H. Madden owned a pool-hall business, in the conduct of which he employed certain pool-tables, cues and balls, and also kept for sale small quantities of tobacco, cigars, etc. He sold the entire property in one transaction to W. D. Ferrat without attempting to comply with the Bulk Sales Law of this state. Leo Spring, a creditor of Madden, reduced his claim to judgment, secured an execution, and placed it in the hands of J. M. Adamson, a constable. Assuming to act under the execution, Adamson seized and sold the pool-tables, cues and balls as the property of Madden. Ferrat thereupon commenced this action to recover damages and joined as a defendant the American Surety. Company. Issues were framed, and the cause tried, resulting in a judgment for plaintiff, from which the defendants appealed.

On Motion to Strike.

The verdict was returned on March 19, 1915. On the day following counsel for defendants secured an order granting them sixty days in addition to the statutory time within which to prepare and serve a proposed bill of exceptions. Ten days later the same counsel gave notice of intention to move for a new trial upon affidavits and bills of exceptions thereafter to be prepared and upon the minutes of the court. "Within the time allowed for that purpose defendants presented and served a proposed bill of exceptions, and the same was settled and allowed. No further steps were taken in the new trial proceedings. Upon this appeal the record is made to consist of the notice of appeal, the judgment-roll and the bill of exceptions. Respondent has moved the court to strike the bill of exceptions from the record, upon the theory that it was prepared in aid of the new trial proceedings, and, since it was not used for that purpose, it has no place in the record.

[1] Our Practice Act is complicated, but the complications ought not to be multiplied by construction which proceeds upon the theory that it was intended to be as abstruse as it can be made. Under the Code of Civil Procedure of 1895 a bill of exceptions settled during the trial of a cause pursuant to section 1154 became a part of the judgment-roll (sec. 1196) and a part of the record on appeal from the final judgment (sec. 1736). A bill of exceptions settled'after trial. pursuant to. section -1155, or a statement of the case prepared under section 1173, did not become a part of the judgment-roll. If the statement of the case was used on motion for a new trial, it might be used on appeal from the final judgment (sec. 1736); otherwise it could not be so used. (Harrington v. Butte & B. Min. Co., 35 Mont. 530, 90 Pac. 748.) It was doubtful whether a bill of exceptions settled after trial could be used on appeal from a final judgment in any event, and, apparently for the purpose of making definite that which was uncertain, section 1736 was amended in 1907 (Laws 1907, Chap. 42). The amended Act made the record on appeal from a final judgment to consist of the notice of appeal, the judgment-roll or such parts of it as might be necessary to be considered, and any bill of exceptions upon which the appellant relies. As if to leave no possible room for doubt as to what was intended, the amended Act provides further: “Any statement of the case settled after the decision of the motion for a new trial, when the motion is made upon the minutes of the court, as provided for in section 6796 (1173), or any bill of exceptions settled as provided for in section 6787 (1154) or in section 6788 (1155), or used on the motion of 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. ’ ’ This language appears to be sufficiently explicit. Any bill of exceptions settled pursuant to section 1154 (6787, Eev. Codes) or section 1155 (6788, Eev. Codes), whether used on motion for a new trial or not, may be used on appeal from a final judgment.

It is contended, however, that the bill of exceptions in question was not settled under the provisions of either of those sections, but was prepared in aid of new trial proceedings under section 6796, Eevised Codes. There is not anything in the record to justify this assumption. When the extension of time was secured for the purpose of preparing this bill of exceptions, the new trial proceedings had not been initiated, and there is nothing to indicate that they were then contemplated by the defeated parties. They were authorized to proceed under section 6788, and apparently did so. The motion to strike is overruled.