Murphy v. King

9 P. 585, 6 Mont. 30

• Court: Montana Supreme Court
• Decided: January 15, 1886
• Status: Published

Opinion

Galbraith, J.

This purports to be an appeal from the judgment in the district court, dismissing an appeal from a judgment rendered in the probate court. Upon án examination of tlie record, we do not find that a judgment was ever rendered in the case. The only proceeding appearing in the transcript before us which has any appearance of a judgment is the following: “ And thereupon, and on the 11th day of April, 1885, said court rendered the judgment dismissing said appeal, which said judgment is in the words and figures following, to wit, ‘Motion to dismiss appeal granted.’ ”

This is not a judgment. It is not an appealable order. B. S. 1st div. secs. 408-431.

In order to enable the party to appeal, judgment should have been rendered, in pursuance of this order, against him.

In Owen v. McCormick, 5 Mont. 255, which was a motion to dismiss the complaint from the files, and overruling a motion to allow it to be amended, it was held that “it was necessary that something more should be done before it could be said that a final judgment was rendered in the action. For aught that appears in the transcript, this action is still pending in the district court.”

So in this case, for aught that appears in the transcript, it may still be pending in the district court for the purpose of having judgment rendered on the order granting the ■ motion to dismiss the appeal.

There is no bill of exceptions, nor any action or order of the court duly authenticated. Therefore there is nothing in the record before us which we can consider.

Order dismissing the appeal is affirmed.

Judgment affirmed.