Montana Mausoleum Co. v. Fava

215 P. 515, 66 Mont. 128, 1923 Mont. LEXIS 69

• Court: Montana Supreme Court
• Decided: February 10, 1923
• Docket: No. 5,024
• Status: Published

Opinion

MR. COMMISSIONER FELT

prepared the opinion for the court.

The plaintiff obtained judgment against the defendant for the sum of $199.50 and costs, upon a written contract to pay for two crypts in the Community Mausoleum to be erected at Billings, Montana. The complaint sets forth the contract, and pleads such facts as were necessary to establish liability on the part of the defendant for the amount recovered.- The answer is in effect a general denial, together with allegation of fraud in the inducement, and certain allegations from which it might be inferred that there had been alteration of the instrument upon which the plaintiff’s cause of action is based.

The appeal purports to be from the judgment and from the order denying defendant’s motion for a new trial. The transcript on appeal contains the pleadings, verdict, judgment, and notice of appeal. It also contains what is denominated a bill of exceptions, containing testimony of witnesses and rulings of the court rejecting certain offers of proof made by the defendant. This bill of exceptions does not appear to have been settled, nor is the record thereof authenticated in any manner. We cannot consider this for any purpose. The complaint is sufficient to justify the verdict and judgment. It is only from the notice of appeal that we may gather that there was a motion for a new trial. The motion and the order overruling same are not before us.

We therefore recommend that the appeal from the order overruling the motion for a new trial be dismissed, and that ■the judgment be affirmed.

Per Curiam :

For the reasons given in the foregoing opinion, the appeal from the order overruling the motion for a new •trial is dismissed, and the judgment is affirmed.

Affirmed.