Granite Mountain Mining Co. v. Weinstein

7 Mont. 346

Opinions

McConnell, C. J.

This is a proceeding to condemn the right of way to a mining claim, instituted before the judge at chambers, under sections 1495 et seq., Compiled Laws of Montana. From the record it appears that on the twenty-sixth day of February, 1887, the judge rendered the following judgment, to wit: “After hearing the testimony of the witnesses produced by both parties, the same having been given orally, both parties being present by counsel and cross-examining the -witnesses, and after hearing the arguments of the respective counsel for both "parties, and having duly considered the same, and being fully advised in the premises, the petition for a right of way is hereby refused.” It appears further from the record that on the twenty-first day of June, 1887, the judge made the following order: “ Motion to require the plaintiffs to pay the costs in this proceeding is hereby sustained. The matter of costs in this case has been considered by me, and it is ordered that William Weinstein and others do have and recover costs of the plaintiff, the Granite Mountain Mining Company, taxed at four hundred and thirty-eight dollars, and that execution issue therefor.” It further appears from the record that the notice of appeal recites that the appeal is taken from the judgment and order of the said judge of said court, made and rendered in chambers, awarding to said defendants, Weinstein ct al., the costs of defending said matter, and attorney’s fees therein.

The appeal, then, is not from the final judgment dismissing the petition of the appellant, but from the order subsequently made adjudging costs against it. There is no bill of exceptions or statement on appeal. We are of the opinion that the order appealed from is a special order made after final judgment in the sense of our statute. See the case of Clarke v. Gonu, 2 Mont. 538, and authorities there cited. In the case of Orr v. Haskell, 2 Mont. 350, an order overruling a motion to quash an execution was held to be a special order made after final judgment, from which an appeal will lie to this court. In the case of Rader v. Nottingham, 2 Mont. 157, this court held that an order overruling a motion to re-tax costs is not appealable, and ibis decisiou is affirmed in the ease of Orr v. Haskell, supra. But there is a material difference between a motion to retax costs, and an order thereon, and an order adjudging costs. The decision in the case of Rader v. Nottingham was made under the authority of the case of Lasky v. Davis, 33 Cal. 677, and rested upon the ground that the legal effect of the order is to modify the judgment, and it becomes a part of it, and hence can only be reviewed with the judgment. But the case of Lasky v. Davis was virtually overruled in the cases of Dooly v. Norton, 41 Cal. 441, Calderwood v. Peyser, 42 Cal. 112, and Clark v. Crane, 57 Cal. 629; so that the later cases in California hold that even an order made on a motion to retax costs is appealable. The judgment for costs is usually a part of the final judgment, and the clerk, in taxing the costs in the blank left for that purpose, is supposed to have committed error, and hence the order to retax the costs is but to change the items of the costs as filled in by the clerk, and hence may be construed as a part of the judgment, and reviewable only with it. In the case at bar, judgment dismissing the petition of appellant was made in February, and it is the judgment for costs against it from wdiich this appeal is taken, made in the following June, so that it presents an entirely different kind of order from the one to retax costs.

But it is insisted that the order under consideration is not appealable, because made by the judge at chambers, and not by the district court. We have two chapters on the sfibject of appeals, — one entitled appeals in general, and the other appeals to the supreme court from the district • court. Section 421, subdivision 3, Code of Civil Procedure, is as follows, to wit: “An appeal may be taken from an order granting or refusing a new trial; from an order granting or dissolving an injunction; from an order refusing to grant or dissolve an injunction; from an order dissolving or refusing to dissolve an attachment; from an order granting or refusing to grant a change of the place of trial; from ¿ny special order made after final judgment,” etc. In this section nothing is said as to where the orders have been made, whether before a court or the judge at chambers. In section 444, subdivision 2, we have the same cases enumerated in which an appeal may be taken to the supreme court from the district courts; both section's embracing any special order made after final judgment;

We find, by reference to the Code of Civil Procedure of California, that that state has precisely the same statute; and as our statute-was taken from that of California, -we will follow in its construction that given by the highest court of that state; and consulting these cases, it will be found that that court held all orders and judgments made by a court at chambers appealable, as well as those which were made in the district courts, and upon the same grounds. The only inquiry made, in order to determine the appealable character of the order, was as to whether it was judicial or ministerial. See Bond v. Pacheco, 30 Cal. 532; Brewster v. Hartley, 37 Cal. 23; Gilmer v. Lime Point, 18 Cal. 260. An order granting or refusing an injunction, an order dissolving an injunction or attachment, or refusing to do so, is made appealable, and these orders may all be made at chambers; but to give the strict interpretation of the statute that we are asked to do would render all such orders non-appealable when made at chambers. Our statutes on appeals were enacted by the first legislative assembly of this territory, which convened at Bannock, December 12, 1864, and were taken from the laws of California of 1851; and the right of appeal from orders and judgments made by the judge at chambers has been acquiesced in by the profession ever since, and no question of this kind was ever made before, so far as our reports show. The ease of Clarke v. Gonu, supra, was from an order refusing a stay of execution until a motion to quash could he heard at the next term of court, and was made at chambers; but no exception was taken on that account. We think, therefore, that the proper interpretation of these two statutes, when taken together, is, that the 'right of appeal lies as well from orders and judgments, when-made by the judge in chambers, as when made by the district court.

But it is further insisted that the order under consideration cannot be reviewed, because it was not made a part of the. judgment roll by bill of exceptions or statement on appeal. “The summons, pleadings, verdict of the jury, findings of the court, commissioner, or referee, all bills of exceptions taken and filed in said action, copies of orders sustaining or overruling demurrers, copy of the judgment, copies of any orders relating to the change of parties,” constitute the judgment roll. Comp. Stats., p. 138, sec. 306. It appears from this statement that the order in question is not a part of the judgment roll. But section 438 of the Code of Civil Procedure provides that, on an “ appeal from a final judgment, the appellant shall furnish the court with a transcript of the notice of appeal, undertaking or undertakings on appeal, pleadings or amended pleadings, as the case may be, which form the issues tried in the case, the judgment and such other parts of the judgment roll, and no more, as are necessary to present and explain the points relied on, and the statement, if there be one, certified by the attorneys of the parties to the appeal, or by the clerk, to be correct. On appeal from a judgment rendered on appeal, or from an order, the appellant shall furnish the court with a copy of the notice of appeal, undertaking or undertakings on appeal, the judgment or order appealed from, and a copy of the papers used on the hearing in the court below, and such copies to be certified in like manner to be correct.” And it is insisted that, under this section, it is not necessary for the order to be made a part of the judgment roll by bill of exceptions. “ It is manifest that some identification is necessary, or otherwise this court could not know what papers were before it.” See Ritter v. Mason, 11 Cal. 214; Gordon v. Clarke, 22 Cal. 533; Johnson v. Muir, 43 Cal. 542; Leszinsky v. White, 45 Cal. 278; Hancock v. Thom, 46 Cal. 643; Stone v. Stone, 17 Cal. 514; Hayne on New Trial and Appeal, 5.

We find that this act was passed by the first legislative assembly of the territory, in 1865, in precisely the form that it is in the present Code of Civil Procedure, except that the authentication wTas to be made by the clerk alone, instead of by the attorneys of the parties to the appeal, or by the clerk, as at present. This was taken from section 346 of the old Practice Act of California, which was itself taken from the laws of 1851, and provided, as our statute does, that the copies provided for should be certified to by the clerk to be correct. In 1864 the California act was amended so as to provide that the certificate might be made by the attorneys of the parties to the appeal, or by the clerk, and our statute was amended after its original passage in 1865 to correspond with the California statute. This certificate mentioned is the certificate of the clerk to the transcript. Hayne on New Trial and Appeal, sec. 264. Hence, by force of the statute, it is not necessary that the papers upon which the court acted should be made a part of the judgment roll by bill of exceptions or statement on appeal, as the only authentication required by the law is the certificate of the attorneys of the parties to the appeal, or the clerk; and the transcript in this case shows that they are properly certified to be correct by the clerk, and hence it is not necessary that a bill of exceptions should be contained in the transcript, embracing the order and the paper, which was the final judgment upon which the order was made. We are aware that the supreme court of California, in the cases of Nash v. Harris, 57 Cal. 243, and Brown v. Delavan, 63 Cal. 303, has decided that an appealable order, although deemed to be excepted in law, nevertheless must be made a part of the judgment roll by bill of exceptions. In commenting upon this, Mr. Hayne, in his work on new trial and appeal, uses the following language: “The case in wdiich this was' said was correctly decided, because, as appears from the report, the papers used on the hearing in the court below were neither identified nor embodied in the bill of exceptions. As was said by the court, 'None of these documents is in any way authenticated.’ And the language quoted is true of some orders. Thus orders made in the absence of a party are deemed to have been excepted to, and many of them require a bill of exceptions. But it is not universally true that orders and decisions which are deemed to have been excepted to require a bill of exceptions, for, under section 647 of the code, the findings of a judge are deemed to have been excepted to; but where the findings are contradictory or uncertain, or against admissions in the pleadings, no bill of exceptions is necessary. So where the question is whether the findings support the judgment, no bill of exceptions is necessary. So under the section mentioned, an order sustaining or overruling a demurrer is deemed to have been excepted to; but no one would contend that a bill of exceptions is necessary to present a question arising on demurrer to a pleading. The distinction is that in some cases the matter in support of the exception is already of record, while in others it is not. In the language of Bhodes, J., in Smith v. Lawrence, 38 Cal. 28, ‘ Neither a bill of exceptions nor a statement is required where the record already presents the question of law and the decision of the court.’ ”

We do not pretend to say that one mode of identification of the order, paper, or document, as the evidence upon which it was made, may not be made by statement on appeal or bill of exceptions; but what we decide is, that, by force of the statute (sec. 438, Code Civ. Proc., above quoted), the certificate of the clerk is a sufficient authentication of the order appealed from, and of the final judgment, which is the documentary paper upon which it is based. Of course the rule would be different if the order was based upon oral testimony. That could only be made part of the judgment roll by bill of exceptions or statement on appeal. We therefore overrule the motion to dismiss the appeal in this case.

McLeary, J., concurs.