
    TANEY, Respondent, v. VOLLENWEIDER, Appellant.
    [No. 1561.]
    
      On Motion to Dismiss Appeals.
    
    [Submitted October 6, 1900.
    Decided October 6, 1900.]
    
      Appeal and Error — Motion to Dismiss Appeal — Transcript— Contents — Sufficiency—Briefs.
    
      1. Where plaintiff appealed from a judgment in favor of defendant, and also from an order denying a new trial, and defendant filed a motion to strike the transcript and to dismiss both appeals, the fact that the transcript did not contain a copy of the order denying the motion for a new trial would not sustain the motion to dismiss, since it in no wise affected the appeal from the judgment, and the motion must be granted or denied as a whole.
    2. Where plaintiff appealed from a judgment in favor of defendant, and aiso from an order denying a new trial, the fact that the transcript aid not disclose that any hill of exceptions or statement on motion for a new trial was settled or certified constituted no reason for dismissing the appeals.
    
      Appeal from District Court, Deer Lodge County; Welling Nap ton, Judge.
    
    Action by F. S. Taney against Mary Yollenweidér. From a judgment in favor of plaintiff and from an order denying a new trial, defendant appealed. Motion^ to dismiss appeals.
    Denied.
    
      Messrs. Duffy ds Casey, for Appellant.
    
      Messrs. Walsh and James, for Respondent.
   PER CURIAM

— The respondent moves this Court to strike from the files the transcript, and to dismiss the appeals herein, upon the following grounds: (1) Because the transcript does not contain a copy of the order denying the appellant’s motion for a new trial; (2) because the transcript fails to disclose that any bill of exceptions or statement on motion for a new trial have been settled or certified; (3) because there is in the brief of the appellant no assignment of error, as is required by the rules of this Court; (4) because there is in the brief no specification that the court below erred in refusing a new trial; and (5) because neither the transcript nor the brief of the appellant is prepared in the manner and form required by the rules.

It appears from the transcript that the plaintiff appealed from the judgment as well as from an order denying her motion for a new trial. The transcript sets forth a copy of the judgment, but does not contain a copy of the order refusing a new trial. The motion is to strike the transcript and to dismiss both appeals, being directed against the transcript and the appeals as an entirety. The- motion will therefore be granted or denied as a whole.

The first and fourth grounds in no wise affect the appeal from the judgment. Whether the absence of a copy of the order appealed from and the failure to specify as error the refusal to grant a new tri'al would require the dismissal of the appeal from the order is not presented by the motion.

The fact that the transcript does not disclose that any bill of exceptions or statement on motion for a new trial was séttled constitutes no reason for the dismissal of the appeals, and the second ground of the motion is therefore untenable. It is hardly necessary to remark that a different question might be raised by the proper motion, where it made to appear that a bill of exceptions or a statement on motion for a new trial had been duly settled and filed, but was omitted from the transcript.

With regard to the third ground: Examination of the brief inclines us to the opinion that the specifications of error, while not as clearly or as artistically stated as they should be, are nevertheless sufficient (but barely so) to withstand the motion as presented.

The fifth sudivision is not argued, nor is attention invited to any particulars, other than those already adverted to, in which the transcript or brief is asserted to be violative of the rules of this Court.

The motion to dismiss is denied. Denied.

Decided Nov. 8, 1900.]  