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SUPREME COURT OF MONTANA

I. RECORD OF

In Force from and after May 11, 1921
COMMISSIONS AND

OATHS.

1. Commissions and Oaths.-The commissions and oaths of the justices and clerk of this court and the Attorney General, shall be recorded in the records of this court.

2. Minutes of Court.-The minutes of this court shall be approved by the Chief Justice (or in his absence by the senior Associate Justice), and attested by the clerk.

II. ORIGINAL PROCEEDINGS.

1. How Commenced and Conducted.-Proceedings commenced in this court originally to obtain writs of habeas corpus, injunction, review, mandate, quo warranto, and other remedial writs or orders, shall be commenced and conducted in the manner prescribed by the Code of Civil Procedure for the conduct of such proceedings in the district court.

2. Application, What to Contain.-The application for the issuance of any of the above writs or orders, except habeas corpus, must set forth, in addition to the other requisite matters, the reasons which render it necessary that the writ should issue originally from this court, and the sufficiency or insufficiency of the reasons so set forth will be determined by the court in awarding or refusing the writ or order.

shown, the court order otherwise. A failure to comply with the requirements of this subdivision may result in a dismissal of the proceedings or action, or a refusal to hear the party in default.

6. Hearing, When Had.-Unless otherwise ordered, the hearing of an original proceeding or action will be had on the return day.

7. Applications, How Made.—Applications to this court for writs or orders must be presented by the parties in person, or by counsel, and in open court; under no circumstances will the court entertain such applications when made through the medium of the clerk: Provided, always, that motions to advance, to reinstate, to dismiss, to affirm, to modify, to strike out, to tax or to allow costs, to quash, for rehearings, to correct the transcript, motions based upon suggestions of diminution of the record, motions for substitution of parties, and motions touching the time of filing or serving briefs, may be presented by filing the same with the clerk, and will be considered in regular order.

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3. Certiorari, Application, What to Con-made to a justice of this court only after aptain. An application for a writ of review shall set out a copy of the judgment or orders sought to be annulled or modified.

plication and refusal thereof by the judge of the court in which the conviction was had, or upon proof of his absence, or inability to

4. Applications, Where Filed.-In all pro-act, and upon at least three days' notice to ceedings and actions commenced in this court the county attorney. The applicant shall originally, the plaintiff shall file his appli- produce at the hearing the record on appeal. Ication with the clerk of this court prior to its presentation to the court.

IV. APPEALS IN CIVIL CASES.

1. Record on Appeal.-Appellant is charged with the duty of having the transcript perfected and filed with the clerk of this court, in accordance with the statute and these rules.

5. Briefs, Preparation and Filing.-In all proceedings and actions commenced in this court originally each party shall file with the clerk of this court at or before the time set for final hearing, ten copies of the brief of his argument, containing a recital of the facts and exhibiting a clear statement and 2. Time of Filing. The transcript shall orderly arrangement of the points of law to be filed by the appellant with the clerk of be discussed and the authorities relied upon this court within sixty days after such apin support of each point. Said brief shall peal is perfected, or the appeal will be subbe printed in conformity to the requirements ject to dismissal on motion of the adverse of subdivision 1 of rule X of this court, un-party; but if it appear that the delay has less, upon application and for good cause been without laches on the part of appellant, (vii)

202 P.

his appeal will not be dismissed for such de- | law and practice in such cases, the party lay, until reasonable time is allowed for fil-aggrieved may, within twenty days thereing the record.

after, present to this court, or any three justices thereof, a petition verified by the oath of the party aggrieved, or his attorney, setting forth the facts in relation to such failure or refusal; and thereupon this court, or such justices thereof, will, if sufficient grounds appear therefor, issue an order

fore a referee to be named in such order, or by depositions, to be taken in the manner prescribed by statute, the fact in relation to such exception, or bill of exceptions, or statement of the case, and the failure or refusal to allow, certify or settle the same.

3. Motion to Dismiss for Laches.-A motion to dismiss an appeal for failure to file the record within the time required, shall be accompanied by a certified copy of the notice of appeal, and præcipe, if one has been filed; and a certificate of the clerk of the trial court, showing whether the case was original- | granting leave to the petitioner to prove bely instituted in the district court, or was there on appeal from an inferior court, and the nature, amount and date of judgment or order appealed from; the date of filing notice and undertaking on appeal; the date of service of such notice, and whether appellant has requested or received a duly certified transcript, and the time of such request, or delivery thereof, as the case may be. No appeal shall be dismissed for failure to file the record within the time required by these rules, unless the motion to dismiss shall have been filed, and notice thereof given to the appellant, prior to the filing of the record.

Copy of Order-Service.-A copy of such order must be served on the adverse party to the action or proceeding, wherein such failure or refusal is alleged to have occurred, or his attorney, together with the notice of the time and place of taking such testimony.

VI. TRANSCRIPTS-HOW PREPARED. 1. Civil Cases.-In all civil cases wherein 4. Suggestion of Diminution by Appellant. -Nor shall the appeal be dismissed because insufficiency of the evidence to justify the the transcript is imperfect, it not being pre-verdict or decision of the court is relied uppared as directed by the præcipe; but this on by the appellant, the transcripts shall be court will, on suggestion of diminution, order printed on unruled white, uncalendered book the clerk of the trial court to correct the paper, ten inches long by seven inches wide, with a margin on the outer edge not less than transcript, or supply the portions lacking, as the case may require. two inches wide. Small pica solid is the smallest letter and most compact form of composition allowed.

Same, by Respondent.-Respondent may likewise make suggestion of diminution of record in any respect he may deem necessary; whereupon, if the suggestion appears to be proper, an order will be made requiring such parts of the record suggested to be certified to this court.

5. Correction of Error in Record.-Either party may, in writing, suggest error or defect, wherein the transcript does not conform to the original record, and, upon notice to the adverse party, obtain an order of this court requiring the clerk of the trial court having in custody original record, either to compare and correct the transcript on file in this court, or to certify a supplemental transcript of such parts of the record as may be thus questioned. If such error or defect be disputed by the adverse party the suggestion must be verified in the manner required by law for verification of pleadings.

Notice to Adverse Party.-Applications under sections 4 and 5 of this rule shall be made upon five days' notice to the adverse party.

V. PROOF OF EXCEPTIONS. Application, How Made.-In case any judge of the district court fail or refuse, upon proper presentation of request, to allow, settle and certify an exception, or statement of the case, in accordance with the facts and the

2. Criminal Cases.-In all criminal cases, and in all civil cases except as specified in subdivision 1 above, the transcripts shall be plainly written with a typewriter with record ink, on one side on white typewriter paper, eight and one-half inches wide and thirteen inches long, with a margin of one and one-half inches on the left hand side of the page, and securely fastened at the side, and shall be bound in black pasteboard covers. In no case shall carbon copies be filed in this court.

VII. ARRANGEMENT OF TRANSCRIPT.

1, First Page and Cover.-On the first page and cover of all transcripts must be stated the title of this court, the title of the case in the court below (substituting for the words "Plaintiff" and "Defendant," the words "Appellant" and "Respondent," as the case may require), the names of counsel for appellant and respondent, and the words "Transcript on Appeal" followed by a statement of the district and county from which the appeal is taken. The first paper in all transcripts must state the title of the court and the case as in the court below, but from all the following papers, orders or proceedings it must be omitted, and the name of the paper, order or proceeding simply given.

(202 P.)

2. Arrangement and Index.-The transcript shall be chronologically arranged, and contain an index, showing the page of each pleading, document, exhibit, order and proceeding, and the testimony or affidavit of each witness comprised therein.

Paging. Each transcript must be paged at the top and the lines numbered on the left margin of the page, except that in printed transcripts only every tenth line need be numbered.

3. Testimony to be in Narrative Form, When to be Presented by Question and Answer.-Unless otherwise ordered by the district court, the testimony shall be reduced to narrative form, and if not so reduced may be stricken out: Provided, however, that in equity cases and in matters and proceedings of an equitable nature, wherein questions of fact arising upon the evidence presented in the record are to be submitted for review by this court, the testimony relating to such questions shall be presented by question and

answer.

4. Identification of Matter Referred to in Exceptions or Motions.-Where an exception refers to matters in pleadings, evidence or other proceedings, which the court struck out, or refused to strike out, on motion, such exception must recite the matter in question. 5. Summons, Writs and Formal Parts of Papers Omitted.-In no case shall the summons or other process or writ be inserted in a transcript unless a question arise in respect to the same. Unless some question is predicated upon the formal parts of pleadings, motions, depositions, exhibits or other papers filed in the trial court, and made part of the record on appeal, the same must be omitted in preparing the record, after once stating the venue and title, giving the names of the parties in full, and thereafter the venue and title may be indicated by the words "Title of Case," "Title of Cause," etc.

a. Formal Parts of Depositions.-Notices, interrogatories, certificates of officers taking depositions, signatures of witnesses, etc., may be omitted, the substance of the testimony contained in the deposition being reduced to narrative form.

b. Same-Deeds, Mortgages, etc.-So with deeds, mortgages, contracts and other exhibits, the indorsement thereon of certificates of acknowledgment and recording may be omitted, and only the material part stated.

c. Same-Indorsements.-All indorsements made by officers may be omitted in preparing the record, except the date of the filing of papers in the trial court, which ought to appear in the record by simply noting "Filed

-," giving the date of filing.

d. Repetition of Papers.-No paper shall be printed or written in the transcript more than once. Instead of repetition, appropriate reference may be made.

6. Strict Compliance-Penalty-Dismissal. -A strict compliance with the foregoing requirements will be exacted in all cases, whether objection be made by the opposite party or not; and for any violation or neglect in these respects which is found to obstruct the examination of records, the appeal may be dismissed, or the court may order the offending party to pay the costs of such transcript, or any part thereof, unless the matter objected to is inserted by order of the court or judge below.

VIII. ORIGINAL EXHIBITS.

1. Incorporation of, in Record-Withdrawal.-Whenever in the trial of an action or other proceeding appealed to this court, an exhibit of a printed book or pamphlet or other printed or engraved matter, or a model, drawing, map, trade-mark, plan or illustration, or other matter formed, drawn, printed or engraved, has been introduced or offered in evidence and it is desired by either party to use the same original exhibit as part of a statement of the case, or in a bill of exceptions, such exhibit, authenticated by a certificate of the judge of the trial court thereon or attached thereto, may be brought to this court in its original form as introduced in evidence, either bound in the transcript of the record on appeal, if convenient to do so, or as an exhibit accompanying such record to this court. Any such exhibit bound in the record filed in this court shall not be withdrawn; but any such exhibit not bound in the record may be withdrawn after determination of the case by order of the court or any justice thereof.

2. Copies When Production of Original may be Ordered.-Whenever the record contains a transcript of any document, writing, map, drawing, engraving, or printed matter, which was introduced in evidence, in a case brought to this court on appeal, and it is deemed expedient to have the same here for examination in the original form, an order will be made requiring the officer or party having the same in custody to place such original exhibit in the custody of the clerk of this court. Any such exhibit may be withdrawn by the party entitled to the custody thereof, after determination of the appeal, by application to the clerk of this court.

IX. SERVICE AND FILING OF TRANSCRIPTS.

1. Civil Appeals.-In all civil cases, the transcript shall be filed, and a copy thereof served upon the adverse party or his attorney within five days after filing the same, and if there be more than one adverse party appearing by different attorneys, on each party or the attorney of each party so appearing.

2. Printed Record-Authentication.-In, [ cases where transcripts are required to be printed, a duly authenticated printed copy thereof shall constitute the record of the case in this court.

e. Amendments.-After the brief on behalf of the appellant has been filed, no motion for leave to amend the same by inserting therein, or adding thereto, any specification of error, or by incorporating new matter of substance in the statement or abstract of the case, will be entertained. By consent of respondent, in writing, and without leave of

3. Same-Copies for Justices.-When transcripts are printed, a copy shall be lodged with the clerk for each of the justices. 4. Criminal Appeals.-In criminal cases no court, the brief may be amended in the parcopies of the transcript need be served.

X. BRIEFS.

1. Kind of Paper-Size.-Briefs shall be printed upon paper of the same character, with type of the same size, and the pages shall be of the same dimensions, as provided by these rules with respect to transcripts, which are required to be printed.

2. Time of Filing and Service-Number of Copies. The counsel for appellant shall file with the clerk of this court ten copies, and serve on opposing counsel one copy of the printed brief within forty-five days after the transcript is filed in this court, except in cases advanced on the calendar, in which case briefs shall be filed and served within such time as may be ordered by the court in the order of advancement.

3. Contents of Appellant's Brief. The appellant's brief shall contain, in the order here stated:

a. Statement of Case.-A concise abstract or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised. The abstract shall refer to the page numbers in the transcript in such manner that pleadings, evidence, orders and the judgment may be easily found: Provided, that in cases in which the transcripts are not printed, the briefs shall contain so much of the record as is necessary to make out the appellant's case, with reference to the transcript by page and marginal numbers. b. Specification of Error.-A specification of errors relied upon, which shall be numbered and shall set out separately and particularly each error intended to be urged. When the error alleged is to the admission or to the rejection of evidence, the specification shall quote the full substance of the evidence admitted or rejected. When the error alleged is to the charge of the court, the specification shall set out the part referred to totidem verbis, whether it be instructions given or instructions refused.

c. Argument-References to Pages of Record. A brief of the argument, exhibiting a clear statement of the points of law to be discussed, with a reference to the page of the record, and the authorities relied upon in support of each point.

d. Citations, How Made.-Citation of authorities shall be by title of case, and volume and page of report.

ticulars mentioned or in any other respect, or a new brief may be filed at any time before the cause is submitted. The court will, in proper cases, upon reasonable application and upon such terms as it may prescribe, permit the brief to be amended, or a new brief filed, so as to meet the requirements of subdivision 1 and of paragraphs c and d of this subdivision. Upon its own motion, and in its discretion, the court may, at any time order a brief to be amended or changed in any particular, or a new brief filed.

4. Respondent's Brief-Copies-Filing and Service.-Counsel for respondent shall file with the clerk eight printed copies of his brief and serve one upon counsel for appellant within forty-five days after appellant's brief shall have been served upon him. His brief shall be of like character with that required of appellant, omitting any specification of errors, and a statement of the case, unless that presented by the appellant is controverted.

5. Failure to File Briefs-Effect.-When, according to this rule, appellant is in default, the case may be dismissed on motion; and when a respondent is in default, he will not be heard except on consent of his adversary or by request of the court.

6. Filing-Extension of Time.-No extension of time for filing briefs shall be allowed, except upon a showing that such extension is necessary.

7. Service on Attorney General.-In all cases wherein the Attorney General is required, by virtue of his office, to appear, five copies of the brief of opposing counsel shall be served upon the Attorney General.

XI. ORAL ARGUMENT.

Time Allowed to Each Party.-One hour will be allowed to appellant and fifty minutes to respondent for argument and no more, without special leave of court granted before the argument begins.

XII. CALENDAR.

1. Cases, How Docketed.-Cases shall be placed upon the calendar by the clerk in the order in which they are filed and docketed.

2. Setting Cases for Argument.-As often as found convenient cases will be set for argument by the court, as reached in the order in which they stand upon the docket, except

(202 P.)

such cases as are determined to be entitled to precedence, or as otherwise ordered by the court.

3. Advancement of Cases.-Appeals from orders dissolving, or refusing to dissolve, granting or refusing to grant, writs of injunction; appeals from orders dissolving or refusing to dissolve attachments; appeals from orders appointing or refusing to appoint receivers; appeals from orders or judgments holding appellant in custody; and all original proceedings, are entitled to precedence, and will, upon motion of either party, be advanced on the calendar.

Appeals in Criminal Cases.-Appeals in criminal cases will be deemed advanced without motion, upon the expiration of forty-five days after appellant's brief has been filed, as required by rule X. They will then be set for hearing at the next setting of causes. The parties will not be allowed to stipulate for extensions of time in which to file briefs. If either party desires an extension of time for this purpose, he must apply therefor to the court, upon affidavit showing good cause.

4. Short Cause Calendar.-There will be placed upon the short cause calendar any case in which it is made to appear to the satisfaction of the court that the same can be presented properly in oral argument of fifteen minutes on each side.

5. Submission on Briefs.-Cases on appeal may be submitted on briefs at any time by filing stipulation of counsel to that effect, which cases will then be considered and determined in their chronological order as they appear on the calendar.

XIII. PETITIONS FOR REHEARING. Petition-Time for Filing-Service of Copy -Consideration Without Argument.-Petitions for rehearing, stating the grounds, points and authorities relied on, may be filed within fifteen days after the decision of the court, and a copy thereof served upon the adverse party who may present objections thereto within ten days after such service. The petition for rehearing will be considered without argument.

XIV. SUBMISSION OF MOTIONS.

1. Motions to be Filed and Copy Served.All motions shall be printed or typewritten, stating the grounds thereof, and filed, and a copy served on counsel for adverse party, if any counsel has entered an appearance; otherwise on the clerk of the court for the party or counsel.

2. Motions Determined Without Argument. -Unless otherwise ordered, a motion will be considered and disposed of without argu

ment.

3. Motions-Preparation-Service-Briefs in Reply.-Motions shall be printed or type

written, accompanied by citation of authorities relied on, and filed; and copy thereof served on the adverse party at least ten days before the time set for hearing on the merits, or within such time as may be fixed by the court. Thereupon the adverse party may, within ten days after the service thereof, or within such time as may be allowed by the court, file, and serve on the others, his brief in opposition to the motion. Such motion shall then be considered and disposed of by the court without argument.

XV. PERMISSION TO TAKE RECORD FROM CLERK'S OFFICE.

Records of Court-Time Within Which to be Returned.-The records and other papers of this court shall not be taken therefrom except by counsel, on permission of the clerk, and when so taken shall not be retained out of the clerk's office more than ten days in any case, and shall be returned within a shorter period upon notice.

XVI. PROCEDURE IN CASE OF DEATH, DISABILITY OR TRANSFER OF INTEREST.

Substitution of Parties.-In event of the death, disability or transfer of interest of a party to an appeal pending in this court, such fact shall be suggested in writing, and (unless the cause of action abate) the legal representative of the party deceased or disabled, or successor to the party transferring his interest, shall, on motion, be substituted

XVII, COST OF APPEAL.

To Whom Taxed.-In all cases the costs of appeal shall be taxed against the unsuccessful party, unless otherwise ordered by this court, and the remittitur shall be accompanied by an itemized statement of such costs as are paid to the clerk of this court: Provided, that whenever it is made to appear that the successful party has caused to be incorporated in any bill of exceptions or statement of the case, any redundant or useless matter, he shall not recover as part of his costs the expense of printing so much of the transcript as is occupied by such redundant or useless matter.

Remittitur Contents.-In all such cases the clerk of this court shall, unless otherwise directed by the court, include in the order or judgment of affirmance, reversal or modification, and in the remittitur, a clause awarding the costs of appeal to the prevailing party, appellant or respondent, to be recovered of the unsuccessful party after ascertainment or taxation thereof in the court below in the manner prescribed by law.

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