The following suggestions and order were prepared in this case by Mr. Justice De Witt, and adopted by the court, January 18, 1892: —
“This appeal is in this court upon a statement on appeal. The appeal is from an order granting a new trial. The statement on appeal seems to be made in pursuance of the provisions of section 432 of the Code of Civil Procedure. This section is identical with section 338 of the Practice Act of California, under which it seems to have been held in that State, that a statement on appeal from an order granting or denying a motion for a new trial was improper. (Hayne on New Trial and Appeal, § 250.) Furthermore, it is the proper practice, under the provisions of section 437 of the Code of Civil Procedure of this State, which provides that the provisions of section 432 do not apply to appeals taken from an order made upon affidavit filed, but such affidavit shall be annexed to the order, in place of the statement mentioned in section 432. The appeal in this case is from an order made upon affidavits filed.. Again, section 438 of the Code of Civil Procedure of this State, provides that on an appeal from an order, the appellant shall' furnish the court with a copy of the notice of appeal, undertaking, the order appealed from, and a copy of the papers used on the hearing in the court below, such copies to be certified, etc. If the statement on appeal is not the proper record in this case, then does this court know upon what papers the motion below was heard? There seems to have been a settlement of a statement on motion for a new trial. But there are no specifications in that statement, and it does not appear what portion of the transcript is included therein, nor does it appear that it was used on the hearing below, nor does it appear that the evidence was before the court on the motion for a new trial. If the statement on appeal is not properly before us, does it appear that even the affidavits were used on the motion below? It seems that the only information that we have is a statement in the statement on appeal, that the motion was heard on the affidavits. Does it even appear that the pleadings, and the amend*84ing of the same, were before the court below ? These matters are suggested as queries for the consideration of counsel. They were not suggested upon the argument of the case, and the court is not to be understood as expressing an opinion. The points mentioned are new in this court, and, as counsel have not been heard upon them, it is ordered that the appellant, if he desires, may file a brief upon these points within one week, and the respondents may reply by brief within one week after appellant’s brief is filed. Then, if appellant desires, he may dismiss his appeal without prejudice to the taking of another appeal.”
The appellant did not file any brief upon the points which were specified, and did not dismiss his appeal, but afterwards obtained permission to take the transcript from the office of the clerk, for the purpose of making amendments or a new record. The rules of this court authorize the taking from the office of the clerk, upon the order of this court, or any justice thereof, of any transcript or paper which has been filed in the case, and require the same to be “returned within twenty days in all cases, or within a shorter period if ordered.” (Rule xxiii.) The eleventh rule provides: “For the purpose of correcting any error or defect in the transcript, either party may suggest the same in writing, and upon good cause shown, obtain an order that the proper clerk certify to this court the whole or part of the record required. If the attorney or counsel for the adverse party be absent, or the fact of the alleged error or defect be disputed, the suggestion must be accompanied by an affidavit showing the existence of the alleged error or defect.” The appellant has not proposed or suggested any amendments to correct any alleged error or defect in the old record. He claims that the foregoing rules are inapplicable, and that, when the privilege of taking the transcript was granted, he understood that papers composing it were to be used in any manner that might be deemed necessary or proper. We know that counsel who appear in this court will not wilfully disobey the rules or requirements of the statute, and no question of this nature arises upon this hearing. Did the appellant comply with the practice regulating this procedure? What has been done? The original transcript, which was filed August 24, 1891, has been altered by the removal of pages 26, 27, 28, 72, 75, and
*8576, and the substitution of other papers in lieu thereof; and the first certificate of the clerk of the court below, to the authentication of this document, has been replaced by another, which was made January 29, 1892. What purported to be a “statement on appeal” has been transformed into a “statement on a motion for a new trial.” The papers which have been thus removed are no longer in our custody, or on file in the office of the clerk. This is not a new transcript which has been prepared according to the Code of Civil Procedure, under the supervision of the judge of the court below, and the appellant and respondents. These radical and important changes have been made in the original record, within the same covers, and under the original filing which authenticated it as a part of the files of this court. We are asked to entertain this transcript, so reconstructed, as the document that was filed August 24, 1891. The old record has been abandoned by appellant, and this transcript has not been prepared in accordance with law. If a privilege of this scope can be given to the appellant, the same right should be conferred upon the respondents, and the acts of the parties proceeding therein in good faith would end in confusion and uncertainty, and the principles of sound practice would be undermined.
In State v. Gibbs, 10 Mont. 212, the appellant had leave to withdraw the transcript from this court and refile it, so that the notice of appeal which was actually served would be shown. I?i Territory v. Harris, 7 Mont. 384, the appeal had been dismissed without prejudice, and the appellant had leave to use the same transcript in taking another appeal. The court held that this appeal must be dismissed, because the same notice of appeal had been refiled, and with the addition of the signature of the clerk of the court in the acceptance of service. These cases are illustrations of the liberality which has been exercised by this court, in order that parties may secure a hearing on appeal, but we are not aware of any precedent which allows the appellant to reconstruct a record in this way. Motions which have these objects in view are granted, with the plain understanding that the party seeking relief will comply with the rules of this court, and laws which have been framed to provide appropriate remedies.
*86It appears in the first transcript that the motion for a new trial was heard and determined on the affidavits. The clerk of the court below, in the new certificate, states: “TTpon the hearing of the motion for a new trial, and the making of said order granting a new trial, there was before the court, and used by him, the aforesaid complaint, amended answer, replication to amended answer, statement on motion for a new trial, and the aforesaid affidavits.” This officer is thereby made to contradict himself in the conflicting certificates. The notice of intention to move for a new trial, which was contained in the original record, and without which the court below could not entertain the motion, has disappeared, and we do not know what grounds, if any, were specified for its action. The appellant did not act upon the suggestions of the court, and it is evident that he desires to maintain his appeal, and have the benefit of the original filing, when it is conceded that the first transcript was fatally defective. Any permission which was extended in this matter must be controlled by the provisions of the Code of Civil Procedure, and we are compelled to decide that there is no record upon which this appeal can be heard.
It is therefore ordered that the motion of respondents to dismiss the appeal be sustained.
Appeal dismissed.
Harwood, J., concurs.