McKee v. Bielenberg

90 P. 757, 35 Mont. 533

• Court: Montana Supreme Court
• Decided: June 24, 1907
• Docket: No. 2,422
• Status: Published

Opinion

MR. JUSTICE SMITH

delivered the opinion of the court.

This action was begun in a justice of the peace court of Silver Bow county. It is recited in the record that plaintiff had a judgment against the two defendants, Bielenberg and Pufahl, in that court, for $92 and costs, from which judgment Bielenberg appealed to the district court and Pufahl did not; also that a motion was filed in the district court to dismiss such appeal, which motion was granted. From a judgment of dismissal, Bielenberg appeals to this court.

The bill of exceptions as settled and allowed in the district court is a mere skeleton, r'eading as follows:

“The defendant, N. J. Bielenberg prepares the following as his bill of exceptions:

“ (Copy of Complaint.)

“ (Copy of the Answer.)

“ (Copy of Notice of Appeal, Justice’s Court.)

“(Transcript, Justice’s Court.)

“(Copy Notice of Motion to Dismiss Appeal from Justice’s Court.)

“(Copy Motion to Dismiss Appeal from Justice’s Court.)

“ (Copy of Order Dismissing Appeal from Justice’s Court.)

“Exceptions of N. J. Bielenberg, defendant.

“The defendant, N. J. Bielenberg, excepts to the ruling of the Hon. George M. Bourquin, Judge of the above-entitled court, as set forth in journal entry, Journal 16, page 22, upon the following grounds, to-wit: The court erred in dismissing the said defendant’s appeal in the above-entitled court and cause.”

This bill of exceptions is of no avail for the purpose of reviewing the order of the district court. There is not incorporated therein, either by copy or appropriate reference, either the transcript from the justice of the peace court, notice of .•appeal to the district court, motion to dismiss, or order dismissing the appeal. None of these papers form a part of the judgment-roll, and the only way that they can be so authenticated as to enable this court to consider them is by a proper bill of exceptions. (Weatherman v. Granite County, 28 Mont. 462, 72 Pac. 972.) With these papers absent from the record, we cannot review the action of the district court in dismissing the appeal. It is presumed to have been correct, and the judgment appealed from is affirmed.

Affirmed.

Mr. Chief Justice Brantly and Mr. Justice Holloway concur.