the first motion for a new trial was left with the clerk of court along with the statement, and was filed without his knowledge, intention, or consent, and thus became one of the files prematurely, and was therefore withdrawn. We find in these events no ground for dismissing the appeal from the order overruling appellant's motion for new trial. The second alleged ground upon which

Respondent's counsel, in urging the dismissal of this appeal, insists that, by the withdrawal of the motion for a new trial by leave of court, appellant withdrew his notice of intention to move; that the notice of intention really constitutes the motion for a new trial, and a former written motion is not essential; that, therefore, if the notice of intention to move constituted the motion, the withdrawal of the motion was in effect, technically, a withdrawal of the notice of intention to move. We do not find such intendment in the fact that in addition to his notice of intention to move for a new trial, setting forth the grounds thereof, accompanied by the statement of the case "specifying particulars" relied on, appellant prepared, in writing, a formal motion, and, apparently not being satisfied with the motion first prepared, withdrew it, by leave of court, and substituted another formal motion for a new trial in its stead. We see nothing improper in this practice, nor any ground or implication whereby we could justly interpret the withdrawal of the first motion as a withdrawal of the intention to move, which is the very foundation of the whole proceeding. It is true, as respondent's counsel concede, that, strictly, a formal written motion for a new trial is not essential to the proceeding; that is, the proceeding is not defective if the hearing is brought on by application of counsel to the court for a new trial, based upon the notice of intention to move, and the record, statement, bill of exceptions, or affidavit (section 298, Code Civil Proc.) used in support of the motion, (Wallace v. Lewis, 9 Mont. 399, 24 Pac. 22; Fabian v. Collins, 2 Mont. 510.) That being the case, we are unable to perceive upon what rules of logic or reason it should be held that the presentation of a formal motion in writing, and the withdrawal thereof, and substitution of another, was, in effect, the withdrawal of the notice of intention to move for a new trial; in other words, practically an abandonment of the proceeding. Such an interpretation would, in effect, make a matter of surplusage overthrow the whole proceeding. Besides this, appellant's counsel explains how

that appellant consented to the order overruling his motion for a new trial, citing several cases wherein courts of last resort have declined to review an order or proceeding entered by consent of the party affected thereby. We readily concur in the proposition that a party would not be entitled on appeal to a review of an order or proceeding to which he consented; that is, where it appears that the complaining party assented to the substance and effect of the decision, he would not be entitled to a review thereof on appeal. We must therefore first ascertain whether the conduct of appellant has been such as to fairly justify the conclusion that he so consented to the disposition of his motion for a new trial. The record entry quoted above recites that the motion was, "by consent, submitted to the court without argument;" but this entry is supplemented by stipulation in which counsel for appellant admits that, when said motion was submitted and ruled upon, appellant said that the "court might pass upon said motion then and there, without taking time to consider the same, and that, so far as defendant was concerned, the motion might then and there be overruled." The record further shows that, immediately after the overruling of appellant's motion for a new trial, its appeal was perfected from the order. On the argument of this motion, appellant's counsel frankly admits that, on submission of the motion for a new trial, he made suggestions to the effect set forth in said stipulation. But he explains that those observations eminated from no captious spirit, as might possibly be inferred from reading them separate from other conditions and events apparent to the court below, nor from an intention to abandon the motion for new trial, or to consent to the rulings which appellant was seeking to have reviewed through that proceeding, but that the suggestions quoted emanated from the urgency of the situation which confronted appellant's counsel, as he understood his limitation of time for appealing was near at hand; that his remarks were so understood by the court at the time, in evidence of which he points to the order of the court, which merely recites that he "consented to the submission of the motion without argument;" that the remarks were made in view of the fact that all the questions and conditions involved were familiar to the trial court, and had been theretofore argued and considered. Upon careful consideration, we

are unable to find in the showing on this point such tendency as would warrant the interpretation urged by respondent, or the dismissal of the appeal. It is one thing to consent to the conditions on which a controversy is to be determined, adjusted, or settled, and another to ask a court to make a formal ruling upon a proceeding which had been fully considered in that court, so as to enable the party feeling aggrieved to appeal for a review of the questions involved. We think appellant's conduct and suggestions at the time of submitting the motion for new trial signify the latter intention only. Order denied.

PEMBERTON, C. J., and DE WITT, J.,

concur.

DOYLE v. GORE et al.

(Supreme Court of Montana. Oct. 3, 1893.) APPEAL-SUPPLEMENTAI. TRANSCRIPT STRIKING FROM FILES STATEMENT ON MOTION FOR NEW TRIAL-TIME OF FILING.

1. A supplemental transcript showing

amendments to the statement on motion for new trial, sent up on an order granting a motion suggesting a diminution of the record, should not be stricken from the files where there is a dispute as to whether or not such amendments are incorporated in the original statement; since, if they are, no harm will result from a duplication of the same, while, if they are not, the party calling therefor is entitled to have them in the record.

2. Under Code Civil Proc. § 536, which provides that the trial court shall not extend the time for filing a statement on motion for new trial to exceed 30 days without consent of the adverse party, a statement filed more than 30 days after the first order granting an extension of the time was made must be stricken from the record, though it was filed within the time fixed by subsequent extensions granted by the court, where such extensions were made without the consent of the adverse party.

Appeal from district court, Cascade county; C. H. Benton, Judge.

Action by Martin Doyle against James D. Gore and others, in which plaintiff appealed from a judgment in favor of defendants, and from an order denying his motion for a new trial. Plaintiff moves to strike from the files a supplemental transcript sent up on granting a motion suggesting a diminution of the record. Motion overruled. Defendants move to strike from the record the statement on motion for new trial. Motion granted.

Donovan & Lyten, for appellant. T. E. Brady, for respondents.

PER CURIAM. This case is appealed to this court from the judgment, and from an order of the trial court overruling plaintiff's motion for a new trial. Certain motions have been interposed by both parties concerning the record on file herein. The first by respondents, suggesting a diminution of the record, and moving this court for an or

der to supply certain amendments of the statement on motion for new trial and a bili of exceptions, which respondents claim were omitted in making up the record now on file here. This motion is accompanied by an affidavit setting forth that certain amendments were proposed, and allowed and ordered to be incorporated in the record by the trial judge, and that a bill of exceptions was also made by respondents, all of which have been omitted from the record. There upon respondents' motion was granted, and, in compliance with the order made, the clerk of the trial court has certified to this court a supplemental record, containing the amendments which appear to have been proposed to the statement on motion for new trial, and allowed by the trial court in the settlement of said statement, and ordered to be incorporated therein. Upon the filing of said supplemental transcript, appellant's counsel interposed a motion to strike the sup plemental record from the files of this court. on the ground that the original statement on motion for new trial contained all the amendments proposed by respondents and allowed by the trial court on the settlement of the statement on motion for new trial The respondents insist, on the contrary, that the original statement does not contain such amendments, and the certificate of the clerk and judge of the trial court attached to the supplemental record appear to support respondents in this contention.

In our opinion, this motion to strike said supplemental record from the files should be denied. If the amendments in question were incorporated in the original statement on motion for new trial, as appellant contends, the appearance of the same matter in the supplemental record will introduce nothing new, but will show a mere duplication of the matter, and no injury or inconvenience can result to appellant therefrom. While, on the other hand, if any such amendments as were allowed by the trial court are omitted from the original statement, as contended by respondents, they should have the benefit of the same in the supplemental record.

The next point for consideration is the motion of respondents to strike from the rec ord the statement on motion for new trial, on the ground that the same was not prepared and served within the time required by statute. It appears from the statement on motion for new trial, as settled and allowed, that the trial closed and judgment was rendered April 21, 1892. Thereupon plaintiff, against whom the judgment was rendered, made and served notice of intention to move for new trial, within the time prescribed by statute, April 26, 1892; and the court, on April 28, 1892, on motion of plaintiff, extended the time for preparation and service of statement on motion for new trial 30 days from said date. It further appears from the record that on May 28th, on mo tion of appellant, the trial court again ex

tended the time for preparation and service of said statement, to June 21, 1892; and on June 18, 1892, another order was made by the court, extending the time for the preparation of said statement to June 24, 1892. The statement on motion for new trial was served June 23, 1892. These extensions aggregate 58 days. The first order of extension of time recites that the same was made "without the consent, advice, or stipulation of defendants or their counsel." Nor does it appear that any of the other orders for extension of time were made by consent of respondents or their counsel. Respondents now move this court to strike out said statement, because of this showing that time was extended more than 30 days without consent of adverse party; relying on section 536, Code Civil Proc., which provides that such extension shall not exceed 30 days without consent of adverse party. The position of respondents must be sustained. The statement on motion for new trial is therefore stricken from the record, leaving the case for consideration of the judgment roll on the appeal from the judgment.

On Rehearing.

(December 4, 1893.)

DE WITT, J. The argument upon rehearing in this case has presented nothing which was not considered on the first hearIng. The argument was simply a reiteration of the points passed upon in the original decision.

Counsel call our attention to the case of Moe v. Railroad Co., (N. D.) 50 N. W. 715, as being in point. In that case the North Dakota court had under consideration section 5093 of the Compiled Laws of North Dakota, which is as follows: "The court or judge may upon good cause shown in furtherance of justice, extend the time within which any of the acts mentioned in sectious 5083 and 5090 may be done, or may after the time limited therefor has expired, fix another time within which any of such acts may be done."

From that case, counsel quote as follows: "That the authority conferred by said section to extend the time to settle a bill of exceptions and statement after such statutory period for so doing has expired, is not absolute, but such discretion is a sound judicial discretion."

The decision is not in point, and the industry displayed in counsel's brief of this case ought to have shown them that the Dakota cause was not applicable; for the Dakota statute does not provide, as does ours, that such extension shall not exceed a given number of days named by the statute, beyond the time prescribed, without consent. Section 536, Code Civil Proc.

Counsel again dwell upon section 298, subd. 3, Code Civil Proc., in connection with section 536, Id. Those sections, read together,

provide as follows: "The party moving for a new trial must, within ten days after the service of notice of intention to move, or such further time as the court or judge may allow, prepare a draft of the statement," etc. Section 298, subd. 3. "But such extension so granted by the court or judge, shall not exceed thirty days beyond the time prescribed by this act, without the consent of adverse party." Section 536, Code Civil Proc.

The whole provision, therefore, is that the statement must be served within 10 days, or such further time as is allowed, (not exceeding 30 days,) unless there be a consent of parties.

It was said in the Dakota case cited above: "The statutory time limited for giving a notice of intention, and for having bills of exceptions and statement settled, is ordinarily ample for the purpose. It rarely happens that further time is necessary."

So, in our practice, if the party preparing a statement takes the limit, as he may, of all the periods allowed him by statute, and the extensions by the court, he has ample time in which to prepare his statement. For, to commence with, he has 10 days, after the verdict of the jury, to file and serve his notice of intention. Section 298, Code Civil Proc. He then has 10 days after the service of this notice to serve his statement. Section 298, subd. 3, Code Civil Proc. Then, again, the court or judge may extend the time for 30 days more. This gives an aggregate of 50 days.

Counsel again contend that the record does not disclose that the extensions of time were given in the absence of defendants or their counsel, thus arguing that they were impliedly by the consent of the parties. Sec-. tion 536, Code Civil Proc. But, as noticed in the original decision, the first order of extension appears by the record to have been made "without the consent, advice, or stipu lation of defendants or their counsel," and it does not appear that any of the further extensions were by consent, and the statute provides that, unless they were by consent, they are prohibited. Section 536, Code Civil Proc.

It is our opinion that the original decision should remain as the judgment of this court, and it is so ordered.

PEMBERTON, C. J., and HARWOOD, J.,

concur.

In re FINKELSTEIN. (Supreme Court of Montana. Nov. 2, 1893.) CERTIORARI-WHEN LIES-ORDER FOR TEMPORARY ALIMONY-IMPRISONMENT FOR CONTEMPT.

An order for payment of temporary alimony being appealable, and such appeal, with stay bond, furnishing a complete remedy against the enforcement of the order, certiorari will not lie to review the action of the court in committing defendant for contempt in disobeying the

order; the provision of Const. art. 8, § 3, that the justices of the supreme court may issue writs of certiorari in proceedings for contempt in the district court, not being intended to apply where there is remedy by appeal.

Application of Marcus Finkelstein for writ of habeas corpus, assisted by writ of certiorari. Writ denied.

McConnell, Clayberg & Gunn, for relator. F. E. Stranahan, for respondents.

HARWOOD, J. In this proceeding, which comprises a writ of habeas corpus addressed to the sheriff of Lewis and Clarke county, together with a writ of certiorari addressed to the district court within and for said county, relator seeks a review of certain proceedings, and discharge from imprisonment imposed upon him by order of said court. It appears that in an action for divorce and alimony instituted against relator by Eva Finkelstein, his alleged wife, such proceedings were had as resulted in an order of the district court requiring relator to pay $50 for employment of counsel on behalf of plaintiff in said action for divorce, together with the sum of $30 per month, temporary alimony, payable to plaintiff until otherwise ordered, and that on default of payment of said sum of $30, as ordered, such further proceedings were had in the district court in said matter as resulted in an order committing defendant to imprisonment in the county jail for contempt of court in disobeying said order for payment of temporary alimony. Thereupon he sued out of this court a writ of habeas corpus, accompanied by a writ of certiorari, to review said proceedings of the district court, whereby relator seeks to show that said order for imprisonment is in excess of the jurisdiction of the district court, on certain grounds urged, and upon such showing to obtain an order discharging relator from imprisonment, through the writ of habeas

corpus.

Respondent's counsel answers all these propositions urged on behalf of relator by pointing out that an appeal lies from a judgment or order of the district court for payment of temporary alimony, in said proceedings for divorce, and that, therefore, the same cannot be reviewed by certiorari, as that writ can only be invoked where there is no appeal, as provided by section 555, Code Civil Proc., as well as the general doctrine defining and designating the functions and use of the writ of certiorari. And respondents' counsel further insists that inasmuch as an appeal lies from said order, through such appeal with the stay bond provided in such cases, relator would obtain his instant and complete remedy against the enforcement of the order for temporary alimony by imprisonment or otherwise, and that, therefore, he must be remitted to that proceeding for review of the action of the district court, by an order of this court refus

ing to review said proceeding on certiorari, and remanding relator to custody.

That an appeal lies from the order for payment of temporary alimony, in an action for divorce, has been determined upon such sound principles of reason and authority. reviewed in the case of Sharon v. Sharon 67 Cal. 185, 7 Pac. Rep. 456, 635, and 8 Pac Rep. 709, under like provisions of the statuts governing appeal as prevails here, that we think it unnecessary to do more than to cite that case for an exposition of the authorities and reasons upon which we hold that appeal lies from the order or judgment of the district court for payment of alimony in the proceedings in question. Relator's counsel urges that, notwithstanding such right of appeal, this court should review the proceedings of the district court resulting in the commit. ment of relator for contempt, because the constitution (article 8, § 3) provides that "each of the justices of the supreme court may also issue and hear and determine writs of certiorari in proceedings for contempt in the district court." Under this provision, he argues that the scope of said writ is enlarged so that, although relator has an ap peal from said order or interlocutory judg ment, and thereby relief from the effect thereof, the same should also be reviewed on certiorari, where imprisonment for contempt is involved. We cannot sustain this position. In our opinion, the framers of the constitution, in referring to the writ of certiorari, contemplated that proceeding as defined in our jurisprudence, as to its office, and the conditions under which it may be invoked. In re MacKnight, 11 Mont. 132 27 Pac. Rep. 336. It follows, therefore, that relator has a remedy in the matter in ques tion by appeal, if his contention is well founded, through which he may obtain re lief, both from the imprisonment, and from other methods of enforcing the order complained of. For these reasons, an order will be entered remanding him to custody.

DE WITT, J., concurs.

NORTHERN PAC. R. CO. v. BENDER. (Supreme Court of Montana. Nov. 13, 1893) EXECUTION-TIME OF ISSUANCE-LEAVE OF COURT.

Code Civil Proc. 349, provides that, after five years from the entry of judgment, execution can only issue by leave of court on proof that some part thereof remains unsatisfied, but such "Teave shall not be necessary when execution has been issued on the judg ment within the five years, and returned unsat isfied in whole or in part." Held, that the fact that execution issued within the five years, and was not returned at all, does not prevent the granting of an execution after that time.

Appeal from district court, Custer county; George R. Milburn, Judge.

Action by the Northern Pacific Railroad Company against Henry Bender to recover