#### STATE ex rel. STROMBERG-MULLINS CO., Relator, *v.*DISTRICT COURT OF THE SECOND JUDICIAL DISTRICT et al., Respondents.

(No. 1,932.)

(Submitted April 13, 1903.

Decided May 4, 1903.)

*New Trial*— Statutory *Provisions*— Noncom.pliance — Effect— *Statement*—■ *Settlement*— Loss *of Right*— Revivor—Amend-*ments*— A *cceptance*— Notice—Man *damns.*

1. Since a motion for a new trial is a statutory remedy, in ordei to successfully invoke it, the mode pointed out’ by the statute must be pursued.

2. Under Code of Civil Procedure, Section 1173, Subdivision 3, providing that, where amendments to a statement of the case for a new trial are not adopted, the proposed statements and amendments shall be presented to the judge by the movant within ten days, on five days’ notice to the adverse party, or delivered to the clerk for the judge, where movant notified his adversary that the statement would be presented to the judge for settlement at a certain time, and at the time appointed failed to appear, and did not present the statement to the judge or leave it with the clerk, or then and there adopt the amendments of the adverse party, it lost its right to have the statement settled at all.

3. The right could not be revived by a subsequent adoption of the adverse party’s amendments.

4. A motion filed with the clerk for the settlement of a statement on motion for new trial, reciting the acceptance of the adverse party’s amendments to the statement, but not called to such adverse party’s attention, is not notice to him of such acceptance.

5. Under the provisions of the Code of Civil Procedure, it is the duty of the judge to settle statements and bills of exceptions, and for this purpose they must be presented to him," and not to the court as such. *Quaere:*Whether in a proceeding for a writ of *mandamus*to compel a district judge to settle a statement it is proper practice to make the court a party to the proceeding?

ORIGINAL application for writ of *mandamus*by tlie state, on tlie relation of the Stromberg-Mullins Company, against tbe Second Judicial District Court in and for tlie county of Silver Bow, and William Clancy, a judge thereof. On motion to quash.

Motion granted.

*Messrs. Kwh &*Olmton, for Relator.

*Mr. J. E. Nealy,*for Respondents.

*124MR CHIEF JUSTICE BRANTLY

delivered the opinion of the court.

Original application for a wilt of *mandamus*to compel William Clancy, as judge of the Second judicial district court, to settle a statement on motion for a new1 trial. On application to this court an alternative writ was issued, directing the defendant judge to settle the statement or show cause why he had not done so. He appeared by motion to quash the writ, and also by answer. After argument, the question of law arising upon the record was submitted.

Thera is no material controversy as to the facts. So-1 far as they are necessary to be stated, they are the following: The causa of *Harrington*v. Stromberg-Mullins Company, a corporation, was tried in the district court of Silver Bow county on December 8, 1902, the defendant judge presiding. The plaintiff had verdict, and a judgment was rendered thereon. On December 10th the relator, through' its counsel, served and filed its notice of intention to' move for. a new trial, and on the same day obtained an order granting it'thirty days’ additional time in which to1 prepare and serve its -statement. The statement was served on counsel for the plaintiff in the case on January 17, 1903. Counsel proposed various amendments to the statement on January 20th. On January 21st he was served with notice that certain of the amendments had been adopted, but that others of them had not, and that the statement would be' presented to the defendant judge for settlement on January 27th, at 10 o’clock a. m., at the courtroom where the judge held court. At the appointed hour counsel for the plaintiff appeared. Counsel for the defendant (relator) did not appear, nor did they on that day leave with the cleric of the court or with the judge the statement, with the amendments. Sometime ini the afternoon of that day, however, one of counsel for the relator took the statement, without the amendments, to one of the clerk’s deputies, and, after having, him indorse upon it the date of its reception, took it' away again. It was retained by counsel until the *125morning of January 31st, when it was again brought to the office of the clerk, but without the amendments, either in a sepa-rata paper or incorporated in the statement as a part of it. On January 31st, upon motion of counsel for relator, 'the statement was set for hearing on February 7 th, the plaintiffs attorney orally objecting, to the setting of the hearing, or any consideration of the matter of settlement, on the ground that it was presented out of time. On February 3d, counsel for relator filed with the clerk a motion, in which they recited that they, accepted all of the amendments proposed by opposing counsel, and asked that the statement be settled and ordered filed. No order was then made or entered by the court or judge upon this motion. On February 7th the hearing was continued until February 14th. On this latter date plaintiff’s counsel filed his written objection to the settlement, setting forth as a ground thereof, among others, that the proposed statement, with the amendments, had • not been presented .to the judge for settlement, nor left with the clerk for the judg;e, under the requirements of the statute, and, therefore, that relator had lost its1 right tO'have the same settled. The matter of settlement was continued thereafter from time to time until March 21st, when, after a hearing, the judge made an order sustaining the plaintiffs objection, and declined to settle the statement.

The question presented, therefore, is: Did- the relator, by its failure to present the statement, with the amendments, in accordance with the statute, or, in lieu thereof, by its failure to leave them with the clerk for the judge, lose its right to have the statement engrossed and settled ? It is argued by counsel that, notwithstanding they had first elected toi pursue the course indicated by their notice to secure the settlement, and the situation in which they found themselves on February 3d, they nevertheless had the right at that time to adopt the amendments! theretofore rejected, and insist that-the judge should settle the statement. In this we think counsel are in error. A motion- for a new trial is a statutory remedy, and, in order to successfully invoke it, the mode pointed out hy the statute must he pursued. *126*(Ogle v. Potter,*24 Mont. 501, 62 Pac. 920.) If tbe purpose is to make tbe motion upon a statement of tbe case, tbe statement must be prepared and settled under tbe provisions of Section 1155 and Subdivisions 2 and 3 of Section 1173 of tbe Code of Civil Procedure. Under these provisions, if no amendments are proposed by tbe adverse party, tbe statement may be presented to tbe judge for settlement witbin a reasonable time; if amendments are proposed and adopted, tbe statement may be engrossed and presented for settlement witbin a like reasonable time. In neither case is notice to tbe adverse party necessary. If tbe amendments are not adopted, either of two courses may be pursued by tbe moving party: Tbe statement and amendments may be presented toi the judge witbin ten rays after tbe amendments are proposed, upon five days’ notice to tbe adverse party, or they may be delivered to1 the clerk for tbe judge. If they are presented to tbe judge at tbe time appointed, be may proceed at once to a settlement, or be may appoint another time for that purpose. If they are delivered to tbe clerk, be must at once deliver them to tbe judge when the judge is in tbe county; if the judge is absent from tbe county, tbe clerk must, upon notice in writing by any of the parties, forward them to the judge, otherwise tbe clerk must deliver them! to tbe judge .immediately upon his return. Thereupon it becomes tbe duty of tbe judge to fix a time for tbe settlement, and to cause the parties to be notified by tbe clerk. At tbe time so fixed, or at a time to which a postponement may be bad, tbe judge must malee tbe settlement. The judge is not authorized nor required to settle a statement not presented in substantial conformity with these requirements. The moving party is entitled to have bis motion beard and disposed of upon tbe basis upon which be makes it *(Sweeney*v. *Great Falls & Canada Ry. Co.*11 Mont. 34, 27 Pac. 347), yet be cannot insist that tbe court shall settle tbe statement upon which he intends to> predicate the motion, unless he has observed the requirements of the statute or such observance has been waived by tbe adverse party. In this instance the relator notified the adverse party that it would1 present tbe *127statement to the judge at a specified time and place. Though the adverse party appeared at that tima and place, the relator did not. Its counsel did not them present the statement, with the amendments^ to the judge, nor did they then or thereafter leave the statement and amendments with the clerk for the judge. If the judge was absent (and it does not appear from the record in this cause whether he was or not), the statement should have been left with the clerk for him. Ohe or the other course should have been pursued. As the relator pursued neither, and did not notify the adverse party them and there that it would accept the amendments, iit lost its right to have the statement settled at all. So far as the record shows, it never gave the adverse party notice that the amendments had been adopted, but left counsel to find out this fact from the written motion filed with the clerk. Under the circumstances^, no obligation rested upon the defendant judge toi settle the statement. Nor could the relator thereafter revive this right by adop|ting the amendments and then asking that the statement as amended be settled1. But, conceding that it might have preserved its right, and, by adopting, accepted the amendments, and notifying counsel of the adverse party that it had done so, it failed to give this notice. A mere motion filed with the clerk, but not called to the attention of the adverse party, is not notice to such adverse party,, unless the statute SO' provides. We know of no provision of the statute authorizing the notice to be given in this wiay.

Rehearing denied May 18, 1903.

We note that the coui*t is made a party to this proceeding. Under the statute, it is the duty of the judge to settle statements and bills of exception, and for this purpose they must be pre*-sented to him, and not to the court as such. No point is made by counsel on either side as to whether this is proper pfractiee. We therefore pass it without comment.'

The alternative writ isi quashed and set aside, and the proceeding is dismissed.

*Dismissed.*