a Judge of the First Judicial District, sitting in place of the Chief Justice, delivered the opinion of the court.
This is an appeal from the judgment in favor of the plaintiff and from an order overruling defendant’s motion for a new *116trial. The action is to foreclose a mechanic’s lien and to obtain judgment against defendant for an alleged balance claimed to be due upon certain contracts for the construction by plaintiff, for defendant, of a dwelling-house. The case was tried to a jury and a verdict returned in favor of plaintiff.
The notice of intention to move for a new trial specifies as the grounds thereof:- (a) Insufficiency of the evidence; (b) that the verdict is against law; (c) errors in law occurring at the trial, etc. The errors assigned on this appeal relate to (1) the admission of evidence over defendant’s objection; (2) striking out of evidence, over objection of defendant; (3) refusal to give defendant’s instruction No. 14; (4) error in overruling defendant’s motion for a new trial.
It is maintained by appellant that the appeal is taken under the provisions of Chapter 149 of the Laws of the Fourteenth Legislative Assembly. The respondent maintains that the judgment appealed from should be affirmed or the appeal dismissed, for the reason that the record presented is not sufficient to enable the court to consider any of the errors assigned.
It is disclosed by the record that on the tenth day of July, 1915, appellant served notice on the respondent that he desired to incorporate in his transcript all of the stenographer’s notes of the testimony taken on the trial, and that he would also require the clerk to certify to the supreme court the original exhibits on file in the case, “and that these documents and éxhibits will be used on the appeal, instead of the bill of exceptions or statement pursuant to the provisions of Chapter 149 of the Laws of the Fourteenth Legislative Assembly.”
On the tenth day of September, 1915, the “transcript on appeal” was filed in the supreme court, and the same was within the time required served upon the attorneys for the respondent. This transcript on appeal contains the judgment-roll and some other papers, but does not contain any of the testimony in the case. The transcript was printed. A transcript of the evidence was made by the stenographer, which was, on August 31, 1915, agreed to by the counsel for appellant and respondent as cor*117rect. This stenographer’s transcript was not printed, and never was served upon the counsel for respondent, but was filed in this court on September 10, 1915. There is not any record of appellant’s proposed instruction No. 14 except the fact that there appears in the transcript on appeal an instruction bearing that number, and there is not any record that the same ever was presented to the district court or was ever passed upon by that court. There is not any doubt of the insufficiency of this record, under the statute and the rules relating to appeals, unless the same is made sufficient by the provisions of the law above referred to (Chapter 149, Laws of 1915).
Section 1 of this law provides: “All pleadings, docket entries, minute entries, judgments, all the minutes of the trial court, including all papers and files, all testimony, exhibits and other evidence, whether settled in a bill of exceptions or statement of the case or not, shall be deemed to be brought up by an appeal and to be subject to review, and to be deemed part of the record on appeal in all cases. * * * The supreme court may ordain rules to regulate the manner in which any such papers may be brought up. In the absence of such rules, the following procedure may be followed. ” It is then provided that if the appellant desires to incorporate in his transcript all or any part of the stenographer’s notes or transcript, or any paper not appearing in the judgment-roll, or any bill of exceptions or statement of the case, he shall file and serve a praecipe, stating what papers and what, if any, part of the stenographer’s notes or transcript he desires to have incorporated in the transcript on appeal. The respondent may then serve and file a praecipe, stating what additional matters or other evidence he desires to have incorporated in the transcript. The transcript shall then be composed of the matters so designated, and of the judgment-roll.
The supreme court has not, since the enactment of this Chapter, ordained any rules relating to appeals; nor does the statute conflict with the rules of court theretofore existing relating to the service and printing of transcripts on appeal. Section 2 of the Act makes provision for “a stenographer’s transcript,” and *118contains statements to the effect that the said stenographer’s transcript, when authenticated as required by the Act, may be filed with the clerk of the supreme court, “and shall then be deemed to be before the supreme court for all purposes of the appeal,” etc. “Such stenographer’s transcript may be referred to by the supreme court for the decision of any matter before the court, including questions of the sufficiency of the evidence, and regarding the settlement of instructions, as fully as if it had been [made a] part of a bill of exceptions or statement of the ease, as well as to supplement the record or correct any insufficiency or defect therein. This provision, however, shall not be construed as relieving the appellant from having the same printed as a part of the transcript on appeal, when requisite for the purpose of his appeal, nor relieve the respondent from the necessity of specifying in his praecipe what, if any, parts or additional parts of such stenographer’s transcript he desires incorporated in the transcript on appeal by the clerk of the district court.”
Section 1 of the Act relates to the “transcript on appeal,” which, under the rules of this court, must be served on the adverse party; and section 2 relates to the “stenographer’s transcript,” and not any provision is made, either in the Act or in the rules of the court, for its service. Section 1 gives direction as to what papers may be included in the transcript, and specifically provides that, if any parts of the stenographer’s notes are required to be incorporated, the same must be specified in the praecipe.
Section 2 gives authority for the filing of the stenographer’s transcript, and specially provides that this provision shall not be construed as relieving the appellant from having the same incorporated as a part of his transcript on appeal. Whatever [1] else this section 2 may mean, it certainly does mean that the evidence “requisite for the purposes of” the appeal should be “incorporated in the transcript on appeal,” and under the rules of this court such transcript must be served on the respondent. A transcript, it is trae, may consist of more than one volume, but it must be made up as provided by law.
*119Appellant’s assignments of error Nos. 1 and 2, relating to the [2] admission and exclusion of evidence, cannot be considered for the reason that the evidence requisite for their consideration is not in the transcript on appeal.
Assignment No. 3, relating to defendant’s proposed instruction [3] No. 14, cannot be considered, for the reason that said instruction is not identified or presented in the manner commanded by the statute, section 6746, Revised Codes. (Robinson v. Helena L. & Ry. Co., 38 Mont. 222, 99 Pac. 837.)
Assignment No. 4, relating to the order overruling defendant’s motion for a new trial, cannot be sustained, for the reason [4] that no errors are apparent in the judgment-roll, and the evidence is not in the transcript on appeal as required by said Chapter 149.
The judgment and order appealed from are affirmed.
Affirmed.
Mr. Justice Sanner and Mr. Justice Holloway concur. Mr. Chief Justice Brantly being absent, did not hear the argument and takes no part in the foregoing decision.