
    Owsley, respondent, v. Warfield, appellant.
    Appeal. — The absolute dismissal of an appeal by the supreme court affirms the judgment of the district court. —In the ease at bar, the appeal had been dismissed for irregularities in the transcript. The order of dismissal was absolute in its terms. The court, however, had intimated that there was time within which to take an appeal properly; but the appellant failed to ask for a modification of the said order at the term at which it was made. Held, that under section 439, division 1, Compiled Statutes of Montana, the dismissal of the appeal was final, and that the judgment of the lower court was affirmed.
    
      Appeal from District Court, Silver Bow County.
    
    Robinson & Stapleton, for the appellant.
    Cole & Whitehill, for the respondent.
   Bach, J.

This cause is before this court at this time on a motion to dismiss the appeal for the reason “ that an appeal heretofore made in said action was dismissed at the July term, 1887.” At the last term of this court an appeal, involving the same judgment and order from which the present appeal is taken, was dismissed for certain irregularities in the transcript. Ante, p. 102. The order of dismissal was absolute in its terms; it was not made “ without prejudice to another appeal.”

Section 439 of the Code of Civil Procedure (Comp. Stats.) provides that “the dismissal of an appeal is in effect an affirmation of the judgment or order appealed from, unless the dismissal is expressly made without prejudice to another appeal.” The statute controls this court, and the motion to dismiss must prevail. It is true, as counsel for appellant states, that at the last term the court intimated that the appellant had time to take an appeal properly. Prior to the July term the rules relating to transcripts had been frequently violated; and those violations had been frequently commented upon by the court, although no appeal had been dismissed for such irregularities, because the respondent had never invoked the rules. The comments of the court, not having effected any change, the court, for its own protection, at the July term, dismissed this cause for certain violations of the rules; but as this cause was the first one to be dismissed, the court, of its own motion, gave the intimation referred to, so that the appellant might protect himself; but in giving the intimation, we went as far as we thought proper, relying upon «counsel for appellant to take such steps as were necessary to perfect the second appeal. One step necessary was, that the appellant should move, at the July term, to have the order of dismissal modified. That the appellant neglected to do then; in fact, we have never been asked to modify the order of dismissal. The motion to dismiss this appeal is granted.

Appeal dismissed.

McConnell, C. J., and McLeary, J., concur.  