ON MOTION FOR REHEARING. (Decided December 31, 1927.) On motion for a rehearing the attorney general complains of the court's decision because of its failure to adhere to record[6] facts. He points out that a referee was by this court appointed to settle a bill of exceptions in this case, and that as shown by the report of the referee, certain evidence was presented to him, not contained in the bill of exceptions as settled by the court. Such evidence constitutes no part of the record, and cannot be by us considered, since the referee's report, recommending the acceptance of the record which had been theretofore regularly certified by the trial court as true and correct, was by this court adopted.
This court must decide every case on the transcript certified by the trial court to be correct, and it cannot consider matters not shown by the record. Our rules for amendment of transcripts before decision are liberal, and there is no excuse for failure to present a proper record. Manifestly, it is too late on motion for a rehearing to present for consideration a different record from that considered in disposing of the case by written opinion on appeal. The practice is settled. (Griffith v. Montana W.G.Assn., 75 Mont. 466, 244 P. 277.)
It appearing that there is no merit in the attorney general's position, the motion for a rehearing is denied.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICES MYERS, STARK and MATTHEWS concur. *Page 161