Kleinschmidt v. McAndrews/Opinion of the Court

The supreme court of Montana, in affirming the judgment of the district court, proceeded on the ground that the errors assigned could not be considered for want of a sufficient bill of exceptions. It was held by that court that, in the nature of the case, an exception, within the meaning of section 279 of the Montana Code of Civil Procedure, could not be taken to the ruling of the court sustaining the motion for a nonsuit and directing judgment to be entered in favor of the defendants, because that section of the Code defines an exception as being 'an objection, taken at the trial, to a decision upon a matter of law, at any time from the calling of the action for trial to the rendering of the verdict or decision;' whereas the exception here relied on 'could not have been taken until after the rendition of the decision of the court.' But no exception to a ruling of the court can be taken until after it is made; and it is plain, therefore, that what is meant by the section of the Code referred to is that the exception must be to some decision or ruling of the court occurring before final judgment is rendered, and not that the exception must be taken before the decision excepted to has been made. But in this case, the granting of the motion for a nonsuit, which is the ruling or decision excepted to, did take place before the final judgment was in fact made and entered.

It was also held by the supreme court of Montana territory that the bill of exceptions in the record is limited to the exception taken to the entry of the final judgment, and does not embrace any of the matters stated in the record as occurring previously, nor include the testimony nor agreed statement of facts on which the motion for a nonsuit was based. But an inspection of the record shows this to be a mistake. The whole transcript from the beginning professes to be a bill of exceptions, and is so styled in the caption, and the verification by the signature of the judge cannot be restricted to the last sentence of the connected history of the case which precedes. Taken together, as it plainly should be, the ground of the exception is distinctly stated, and everything necessary to entitle it to consideration satisfactorily appears. The office of a bill of exceptions is evidently the same under the Montana Code as at common law, and whatever brings upon the record, properly verified by the attestation of the judge, the matters of fact occurring at the trial, on which the point of law arises, which enters into the ruling and decision of the court excepted to, answers sufficiently the description of a proper bill of exceptions.

It is further objected here, however, in argument, that the exception in the present case must be disregarded, because the appeal from the district court to the supreme court was not taken in time, under the provisions of section 408, St. Mont. 1879, which is as follows: 'An exception to the decision or verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment unless the appeal is taken within sixty days after the rendition of the judgment.' In the present case, the judgment was rendered March 22, and the appeal taken on July 13, 1880, more than 60 days after the rendition of the judgment. But the exception taken and to be considered is not within the description of the class mentioned in this section of the statute. Here there was no verdict or decision upon the facts in favor of either party, which it is alleged was erroneous, because not supported by the evidence. The ruling excepted to was that, upon the evidence submitted by the plaintiffs, it was matter of law that they could not recover. The verdict or decision referred to in the above-quoted section of the statute relates exclusively to findings alleged to be erroneous for want of sufficient support in the evidence. Here the matter of the exception is purely matter of law.

But on the motion for a nonsuit the court was also in error. It should not have been granted. The ground on which the district court proceeded was that the sale of the stock of goods by Ingersoll to the plaintiffs was void under section 15 of a statute of Montana relating to conveyances and contracts, (Laws Mont. 1872, p. 394,) which is as follows: 'Every sale made by a vendor of goods and chattels in his possession or under his control, and every assignment of goods and chattels, unless the same be accompanied by the immediate delivery, and be followed by an actual and continued change of possession of the thing sold and assigned, shall be conclusive evidence of fraud as against the creditors of the vendor or the person making such assignments or subsequent purchasers in good faith.'

Upon the facts recited in the bill of exceptions, that the bill of sale was executed and delivered at Helena on Saturday night, March 29, 1879, at 9 o'clock; that the stock of goods was at Vestel, 23 miles distant; that the plaintiffs took possession of them the next morning, Sunday, at 4 o'clock, and reremained in possession until the goods were seized under the levy of the attachment made by the defendants the next morning,-it appears that there was not a single hour in which business could be or was usually transacted that intervened between the execution and delivery of the bill of sale and the transfer of the possession of the property. This was certainly an immediate delivery of possession under the statute, and that possession continued until interrupted by the seizure by the defendants. Upon the facts in evidence, the title of the plaintiffs to the goods in controversy was sufficiently established in law, and if nothing else appeared it would have been the duty of the court so to have instructed the jury.

The judgment of the supreme court of Montana territory is therefore reversed, and the cause is remanded, with instructions to take further proceedings therein in conformity with law.