This cause is before us on an appeal from a judgment upon a verdict in favor of the plaintiff and against the defendant in an action tried in the district court of the second judicial district of the state of Montana, in and for the county of Silver Bow. The judgment was entered on the twenty-first day of February, 1924. The appeal was taken by the defendant. The proposed bill of exceptions, as drafted, was dated May 19, 1924. Notice of the time the proposed bill of exceptions would be presented for settlement was filed June 2, 1924. Objections to the settlement had been filed by the plaintiff theretofore on May 29, 1924. In substance, the objections were based upon the proposition that the proposed bill of exceptions had not been presented within the time permitted by law. The record does not disclose that any affidavit showing the necessity for further time for the presentation of a bill of exceptions was ever filed or presented to the court.
The questions raised by the specifications of error are, generally speaking, as follows: (1) It is contended that by reason of an affidavit of disqualification, filed before the day the trial commenced, the judge who presided at the trial was disqualified and was without jurisdiction to try the cause. (2) The remaining questions are as to alleged errors committed during the *Page 451 trial, and the insufficiency of the evidence to support the verdict and judgment.
On February 27, 1924, the defendant was granted forty-five days in addition to the time allowed by law for the presentation of a bill of exceptions. On March 1, 1924, notice of intention to move for a new trial was filed, having been theretofore served. On April 18, 1924, an order was made granting the defendant thirty days in addition to the time granted by the order of February 27, within which to present its bill of exceptions.
In order to pass upon the questions raised by the specifications of error, it is apparent from a reading of the record that every question was such a one as did not appear upon the face of the judgment-roll. It was therefore incumbent upon the defendant to present to this court a sufficient record for examination. In this regard the defendant is at fault, and we are unable by reason thereof to examine into or pass upon any of the questions presented.
Section 9390, Revised Codes of 1921, provides: "Whenever a[1] motion for a new trial is pending, no bill of exceptions need be prepared or settled until the decision of the court upon motion for a new trial has been rendered, but a bill shall be prepared and settled in the same manner and within the same length of time after the decision on the motion for a new trial as is hereinafter provided for the making and settling of bills of exceptions. Except as above provided, the party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must, within fifteen days after the entry of judgment if the action was tried with a jury, or after receiving notice of the entry of judgment if the action was tried without a jury, or within such further time as the court or judge thereof may allow, not to exceed sixty days, except upon affidavit showing the necessity for further time, prepare and file with the clerk of the court and serve upon the adverse party a bill of exceptions. * * *" *Page 452
It is perfectly evident, under the language of section 9390 as quoted, that whenever the time allowed exceeds sixty days from and after the fifteen days after the entry of judgment, in case the action is tried with a jury, or after receiving notice of the entry of judgment, if tried without a jury, the record must affirmatively show that such additional time was allowed upon the filing of an affidavit showing the necessity for further time. The language of the section operates as a bar to the extension of time for presentation without the showing by affidavit of necessity for further time. The time allowed by law together with the time which could be granted by the court without the showing by affidavit, in the instant case expired on the sixth day of May, 1924. It was incumbent upon the defendant, in order to have the questions which he submits, reviewed by this court, to file with the clerk of the district court a proposed bill of exceptions on or before the sixth day of May, 1924; this the defendant failed to do. The only alternative was for the defendant to have filed in the cause and presented to the court an affidavit showing the necessity for further time, and in order to show that a bill of exceptions is properly settled — that is, is settled within time — where on the face of the record it appears to have been filed after the time allowed by law, without the showing by affidavit, the bill of exceptions must affirmatively include the showing made.
It might be argued that the bill of exceptions as included in the record was one which was properly settled after or upon the statutory denial of the motion for a new trial, and as such could be considered. The record, however, will not warrant the application of such a proposition. It does not disclose that there ever was a ruling upon the motion for a new trial. The order, made February 27, granting forty-five days in addition to the time allowed by law for the settlement of a bill of exceptions, cannot be considered as granting time after the decision upon motion for a new trial, for the reason that it was made prior to the filing of notice of intention to move for a new trial, and at that time the court was without jurisdiction to make *Page 453 such an order, no motion having been filed. Disregarding, therefore, the reference made to the former order of the court in the order of April 18, granting thirty days additional time, and considering that order as extending the time thirty days, we have a state of facts which precludes the contention that the bill of exceptions was settled upon the decision of the motion for a new trial.
Under the provisions of section 9400, Revised Codes of 1921, there being no other record upon the subject, the most favorable construction which can be placed upon the facts is that, pursuant to the statutory provisions, the motion came on for hearing not later than ten days after the filing of the notice of motion, and was then heard and decided within the fifteen days after the same was submitted. This would have the ruling of the court upon the motion for new trial, or the decision thereof, rendered not later than the twenty-sixth day of March, 1924. The fifteen-day period allowed by section 9390 for the filing of the proposed bill would then have expired on the tenth day of April, 1924, and it is apparent that any order granting additional time, to have any effect whatever, must be made within the time when the right to file is still alive. The order made April 18 was therefore ineffectual for any purpose whatsoever.
It cannot be held that, disregarding all other facts as shown by the record, and only considering the question of the trial judge's actions in proceeding with the trial of the case after being disqualified, the bill of exceptions as it is in the record is the bill of exceptions contemplated by section 9389 upon a decision "at the time the decision is made," for, even granting for the sake of argument that at the time the court ruled, in effect, that it would proceed to trial, an extension of time could be granted for the filing of a proposed bill of exceptions, no such order was made. If the time may be extended for the settlement of a bill of exceptions pursuant to section 9389, clearly the law would have required that the order extending the time for the filing of the proposed bill be made at the time *Page 454 of the decision. The first order extending time appears on the twenty-seventh day of February, and after the judgment was entered.
This matter has been given very careful consideration, for the reason that this court is inclined at all times to consider the merits of all controversies and will, in order to do so, disregard technicalities. We cannot, however, disregard the clear language and meaning of the statute relative to settlement of bills of exceptions. The only question, therefore, which could have been considered by this court on the record before it, was whether the judgment appeared upon the face of the judgment-roll to be erroneous. This question was not presented by argument or in the specifications of error. The judgment must therefore be affirmed.
Affirmed.
MR. CHIEF JUSTICE CALLAWAY and ASSOCIATE JUSTICE HOLLOWAY, STARK and MATTHEWS concur.
OPINION ON MOTION FOR REHEARING. (Decided April 18, 1925.)