Vicain v. City of Missoula Et Al‪.‬

Appeal and Error ? Bills of Exceptions ? Unauthorized Extension of Time for Filing ? Striking Bill from Record ? Assignments of Error Based on Evidence not Reviewable on Appeal ? Judgment on Pleadings ? Striking Portion of Answer ? Harmless Error ? Appeal ? Technicalities. Bills of Exceptions ? Time Within Which to Ask for Further Time for Preparation and Filing ? When Court Loses Jurisdiction. 1. Where a party appealing desired time for filing his bill of exceptions in addition to the fifteen days allowed by section 9390, Revised Codes, and the sixty days allowed for the asking, he must present his request, supported by affidavit, before the expiration of the time theretofore allowed, else the trial court loses jurisdiction. Same ? Unauthorized Extensions of Time ? Bill Subject to Motion to Strike from Record. 2. Where appellant had been granted additional time in which to prepare, serve and file his bill of exceptions some nine different times, in four of which instances the requests were made after the time theretofore allowed had expired, the trial court lost jurisdiction to allow the extensions, rendering the bill subject to a motion in the supreme court to strike it from the transcript. Trial ? Motion for Judgment on Pleadings ? When not to be Granted. 3. Plaintiff in an action against a city and two other defendants held not entitled to a judgment on the pleadings as to the defendant city on the ground that the answer did not contain "any substance of defense," where the pleading concluded with a general denial of the complaint, which was sufficient to raise the issue on which the judgment was predicated. Same ? Pleadings ? Motion to Strike Portion of Answer ? When Refusal Harmless Error. 4. Alleged error in refusing to strike portions of the answer of two of three defendants held harmless where the answer was still sufficient to raise the issues upon which the judgment of the court was predicated. Appeal ? Bill of Exceptions Stricken from Record ? Assignments of Errors Based on Evidence not Reviewable. 5. Where the bill of exceptions was stricken from the record as improperly settled and allowed, thus eliminating the evidence, assignments of error based on disallowance of exceptions to evidence and defective and insufficient findings, may not be considered on appeal. - Page 106 Same ? What not to be Deemed Technicalities. 6. A holding of the supreme court requiring litigants to observe mandatory provisions of the statute prescribing the mode of taking appeals is in no sense technical within the meaning of the rule that it will sweep aside technicalities and decide litigation before it on the merits.