State v. Gibbs

10 Mont. 212

• Court: Montana Supreme Court
• Decided: July 15, 1890
• Status: Published

Opinion

Per Curiam.

The appeal in this case was dismissed, because the record did not show that there had been served on the attorney prosecuting any notice of appeal from the judgment, or an appealable order, the notice being of an appeal from the verdict. {Ante, p. 210.) Appellant moves for a re-in-statement, and shows that the alleged notice of' appeal contained in the transcript was an error of the compiler of the record. He now shows, by the affidavits of the attorney prosecuting, that a notice of appeal from the judgment was served as required by the statute. It is clear that a record of the District Court cannot be amended or changed in this court, but steps may be taken by which this court may obtain the true record. It is therefore ordered that appellant have leave to withdraw the transcript from this court, and refile it, so that it may show the notice of appeal which was actually served upon the attorney prosecuting. Counsel should have known the condition of this record, and have suggested the error of the compiler before they submitted the case on the hearing. Their attention was called to the condition of affairs upon the motion to dismiss.