I dissent. The matter sought to be stricken does not constitute evidence. It constitutes statements of counsel as to what paragraphs of the complaint would be deemed admitted. In legal effect those statements constituted amendments to the pleadings.
Of course it would have been better practice to have had those statements reduced to writing at the time so as to avoid mistakes or misunderstanding. Counsel for both sides were equally at fault in not insisting that this be done.
Here there is no question raised as to the correctness of the stenographer's notes. No objection was made to the transcript until after appellants' brief had been filed and respondents granted until June 15, 1946, in which to file brief. Instead of filing a brief within that time the motion to strike was filed in August, 1946. I think that objection came too late and that our action should be controlled by the case of Loncar v. National Union Fire Ins. Co., 84 Mont. 141, 274 P. 844.
I believe the motion should be denied and the case considered on its merits.