Appellant filed his final account as special administrator in the above-entitled estate. One Rachel, a creditor, filed written objections thereto. Upon the hearing of the nineteenth day of May, 1898, the court struck out and disallowed the item of two hundred and sixty-two dollars claimed to have been paid for rent, reduced the attorney's fee from one *Page 579 hundred dollars to fifty dollars, and the fees of the administrator from thirty-five dollars and sixty-three cents to seventeen dollars and eighty cents, and allowed the account as to all other items. From this order the appeal is taken. There is in the record what purports to be a bill of exceptions containing the evidence relative to said items, and the statement that appellant excepted to the order so made by the court. It is claimed by respondent that the bill of exceptions cannot be considered because it was not served upon respondent, nor settled at the time of the trial, nor when the order was made, and we think the contention will have to be sustained.
The so-called bill of exceptions was not served on respondent, and he was not present in person or by counsel at the settlement thereof, and did not agree to the same. It is indorsed, "The foregoing bill of exceptions is hereby settled as correct. Dated May 20, 1898. Jas. M. Troutt, Judge." No claim is made that it was served upon the respondent, or that he was present when it was signed, but it is stated in an affidavit filed by appellant that immediately upon the order being made, and in open court, the appellant did object and except to the order, and stated that he would at once present to the judge for settlement a bill embodying the said exceptions. That no objections were made by counsel for respondent. That appellant's counsel immediately prepared a rough draft of the proposed exceptions and presented it to the judge. That the judge, after suggesting some changes, stated that if the draft were properly engrossed or typewritten that he would approve the same. This was about noon on May 19, 1898. That afterward, about 3 o'clock P.M., the appellant returned to the courtroom with said draft properly prepared, but that court had adjourned for the day, and the judge could not be found. That thereafter, on the morning of the 20th, he returned with the prepared bill and secured the signature of the judge thereto. We do not think the judge, after the court had adjourned for the day, in the absence of respondent's counsel, without his consent and without notice to him, could, on the ex parte application of appellant, settle the bill of exceptions. The facts do not bring the case within the provisions of section 649 of the Code of Civil Procedure, which says: "A bill containing the exception to any decision may *Page 580 be presented to the court or judge for settlement at the time the decision is made, and, after having been settled, shall be signed by the judge and filed with the clerk." The section contemplates the settlement at the time the decision is made during the trial and in the presence of counsel for both parties. It does not contemplate a settlement of the bill after the adjournment of court, and without any notice to adverse counsel. If such bill could be settled the next day, why not the next week, or month, or year? The code elsewhere makes ample provision for the settlement of a bill of exceptions after trial upon giving the adverse party notice and time to prepare amendments so that the facts may all be accurately stated.
This court in Wetherbee v. Carroll, 33 Cal. 553, in construing sections 188 and 189 of the practice act, which contained similar machinery for the settlement of exceptions during the trial as is now contained in sections 649 and 650 of the Code of Civil Procedure, said: "At the trial both parties are present and in settling the exception can be heard. Each party can see that everything necessary to a presentation of the entire merits on both sides is introduced. . . . . The policy of the act is that wherever there is a possibility that a partial record, for presenting a point, may be made, both parties shall have an opportunity to take part in settling it. And the two modes prescribed — one by settling the exception during the progress of the trial, in the presence of both parties, and annexing it to the judgment-roll; the other by a subsequent statement in the mode designated — afford an orderly and convenient mode of accomplishing that end." (See Hayne on New Trial and Appeal, sec. 256; Kleinschmidt v.McAndrews, 4 Mont. 31; McKay v. Montana Union Ry. Co.,13 Mont. 15, 21; Estate of Carpenter, 127 Cal. 582 .)
As we are not to consider the paper purporting to be a bill of exceptions, there is nothing in the record to show the evidence upon which the court acted in arriving at its conclusions. We must presume that the testimony justified the action of the court. It follows that the order should be affirmed.
Haynes, C., and Gray, C., concurred.
For the reasons given in the foregoing opinion the order is affirmed. McFarland, J., Temple, J., Henshaw, J. *Page 581