On Petition for Rehearing. The statutes and decisions are against the contentions made by appellants in their petition for a rehearing herein.
Section 9390, Revised Codes of Montana, 1935, provides that, "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 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 *Page 461 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, containing all of the proceedings had at the trial upon which he relies, * * * When settled, the bill must be signed by the judge or referee with his certificate to the effect that the same is allowed, and shall then be filed with the clerk."
Without having settled and allowed a bill of exceptions[4] containing the proceedings had at the trial, the appellants here attempt to have this court review and upset the trial court's findings, conclusions and judgment, complaining that same are at variance with such proceedings. This may not be done.
"A requirement that a bill be settled and allowed is not an unreasonable restriction on the right of appeal, and its enforcement by disregarding a bill which does not comply with it does not deprive the appellant of his property without due process of law by depriving him of a right of appeal guaranteed by the constitution. Nor is a decision dismissing an appeal and affirming the judgment because no question is presented for review by reason of a failure to comply with such a requirement based upon a technicality." 8 Bancroft's Code Practice and Remedies, p. 8962, sec. 6765.
A transcript of the stenographer's notes which was neither[5] submitted to the trial judge for approval nor settled or allowed by him is not a bill of exceptions nor can it be considered as a bill of exceptions. Snow v. Tarpey, 25 Utah 126,69 P. 718.
"The court's stenographer cannot settle a bill of exceptions." Thomas v. Blythe, 44 Utah 1, 137 P. 396, 399.
Likewise an agreed statement of the case may not be considered[6] a bill of exceptions, where it was neither signed, settled nor allowed by the trial judge. Rouse v. Bolen, 17 Ariz. 14,147 P. 736, 737; Smith v. Blackmore, 3 Ariz. 348, 29 P. 15.
"In the consideration of an appeal, this court enters upon *Page 462 its investigation with a presumption that the lower court was correct in its determination, and therefore the appellant has the burden of showing reversible error. Stabler v. Porter, 72 Mont. 62,232 P. 187; State ex rel. Woare v. Board of Comm'rs.,70 Mont. 252, 225 P. 389; Haley v. McDermott, 45 Mont. 217,121 P. 1060. It is also the rule that, when the record on appeal in an equity case does not present the evidence taken in the court below, it will be presumed that there was sufficient to sustain the findings of the court (Gow v. Cascade etc. Co., 66 Mont. 488,213 P. 1092), and that, on an appeal from the judgment in an action tried before the court, in order to obtain a reversal, the appellant has the burden of showing that the record will not sustain the conclusion of the court upon any admissible theory. State [ex rel. Urton] v. American Bank Trust Co., 75 Mont. 369,243 P. 1093." Thompson v. Chicago, etc., R. Co., 78 Mont. 170,177, 253 P. 313, 316.
This court's opinion in Putnam v. Doney, 78 Mont. 190,253 P. 270, is peculiarly applicable to this appeal. There we said:
"Pages 16 to 96 of the transcript filed in this court contain what purports to be a recital of the proceedings had at the trial, including the testimony introduced thereat, but no bill of exceptions containing such proceedings or testimony was prepared or settled as provided for in section 9390, Revised Codes of 1921, or otherwise.
"The record on appeal from a final judgment consists of the judgment roll, with all bills of exceptions settled and filed in the case, and a copy of the notice of appeal (section 9402, Rev. Codes 1921), and the judgment roll in a case like this, tried by the court without a jury, in which the defendant has appeared, consists of the pleadings, a copy of the findings of the court, all bills of exceptions taken and filed, all orders, matters, and proceedings deemed excepted to without bill of exceptions, and a copy of any order made on demurrer or relating to a change of parties, and a copy of the judgment (section *Page 463 9409, Rev. Codes 1921, as amended by chapter 146 of the Session Laws of 1925).
"This court has repeatedly held that, under the provisions of section 9390, supra, a party appealing from a final judgment, if he desires to present on appeal the proceedings had at the trial, must have have the same incorporated in a bill of exceptions and settled as therein provided. Montana Mausoleum Co. v. Pava,66 Mont. 128, 212 P. 515; In re Bitter Root Irr. Dist., 67 Mont. 436,218 P. 945; Midland Nat. Bank v. Hegna, 68 Mont. 544,219 P. 628.
"For the reason indicated, this court cannot on this appeal consider the proceedings had at the trial of the action or the testimony introduced, and there is before it only the judgment roll. * * *
"Nothing appears in the judgment roll which requires or would justify a reversal of the judgment entered in the lower court, and the same is affirmed." Putnam v. Doney, 78 Mont. 190,253 P. 270.
The petition for rehearing is denied and remittitur will issue forthwith.