#### CORNELL et al., Appellants, *v.*MATTHEWS et al., Respondents.

(No. 1,622.)

(Submitted June 19, 1903.

Decided July 9, 1903.)

*Appeal*— Record—Certified *Copies of Papers.*

1. Under Code of Civil Procedure, Section 1738, declaring- that, on an appeal from an order granting a new trial, the appellant must furnish the court with a copy of a notice of appeal, of the order appealed from, and of the papers designated in Section 1176, etc., the court can only consider “copies” of the papers referred to; and hence a record on appeal, composed of original papers withdrawn from the files of the district court, will not support an appeal.

2. The supreme court has no jurisdiction of an appeal unless the record on appeal conforms to the requirements of the statute.

*458
      *Appeal from District Court, Leíais and Clarice County; S. II.. Mclniire, Judge.*

AotioN by J. R. Cornell and another against Lyman A.. Matthews and another.- From an order granting a new'trial,, plaintiffs appeal.

Appeal dismissed.

*Mr. Albert I. Loeb,*for Appellants.

*Mr. T. J. Walsh,*for Respondents.

MR. CHIEF JUSTICE ERANT'LY

delivered the opinion of the court.

This action was brought by plaintiffs for the purpose of perpetually enjoining defendants from obstructing or otherwise interfering wdth a right of way which plaintiffs claim to have' over the lands of the defendants. The district court found fra-the plaintiffs, and directed the injunction to issue as prayed. The defendants thereupon moved for a new trial.' • From the' order granting it the plaintiffs have appealed.

None of the questions submitted by appellants may be considered or decided, because of the condition of the record filed in this court. Besides a copy of the notice of appeal and the index, it consists only of the original bill of exceptions settled by the district court granting the order. This has embodied in-it the original statement prepared by defendants and settled by the court in support of the motion. It thus appears that the-entire record, with the exception ‘ of the notice and index, is made up of original papers which have been withdrawn frqm the files of the district court. Section 1136 of the Code of Civil Procedure provides that, “on an appeal from a final judgment, the appellant must furnish the court with a copy of the notice' of appeal, of the judgment roll, and of any bill of exceptions or statement in the case” upon which he relies. Section 1738 declares that, on appeal from an order granting or refusing a new trial, the appellant must furnish the court with a *copy*of’ *459the notice of appeal, of the order appealed from, and of the papers designated in Section 117 6. This latter section enumerates the papers which shall constitute the record on appeal from an order granting or refusing a new trial. It is manifest from these provisions, when taken together with Sections 1739 and 1740, that the record presented to this court must consist of certified copies, instead of the original papers constituting the files of the district court. The reason underlying these provisions is also manifest. The records of the district court must remain permanently on file with the clerk, except when original exhibits which have been made a part of the record in that court may be certified to’ this court under the rule. (Rule VII.) Eiven in these cases such exhibits are required to remain permanently among the files of this court only when bound in the-record. When not bound in the record, they may be withdrawn and returned to the files of the district court, where they belong. Everything else, however, becomes a part of the records of this, court, and must remain in the custody of the clerk. Such being the case, only records properly certified up by copy can lawfully become and remain constituent parts of the records of' this court; otherwise, important parts of the records of the various district courts throughout the state would become incorporated in the records of this court, and to this extent the character of those courts as courts of record would be destroyed.

Erom these considerations it follows that the record in this ease is not such a one as that this court may consider or determine any question sought to be presented by it. It is of no consequence whether the files of the district court are incorporated in the record on appeal by the implied consent of parties or by permission of the judge of the district court, as seems to have-been the case here. Furthermore, this court has no jurisdiction of the appeal, unless tire requirements of these statutory provisions have been observed. Its appellate jurisdiction may be exercised only under limitations and regulations prescribed by law touching the time within which and the mode by rvhich appeals may be taken. (Constitution, Article VIII, Sec. 3 *460
      *State ex rel. Whiteside*v. *District Court,*24 Mont. 539, 63 Pac. 395; *Finlen*v. *Heinze,*27 Mont. 107, 69 Pac. 829; *Finlen*v. *Heinze,*27 Mont. 123, 70 Pac. 517.) The provisions of tbe statute above referred to define tbe mode by wbicb appeals may be'effectually taken to tbis court, and are mandatory. *(Featherman*v. *Granite County,*28 Mont. 462, 72 Pac. 972.)

Tbe appeal must therefore be dismissed. It is so- ordered. It is further ordered that tbe clerk of tbis court return to tbe clerk of tbe district court the bill of exceptions, after detaching therefrom tbe cover, the index, tbe copy of tbe notice of appeal, and tbe certificate.

*Dismissed.*