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eBook details

• Title: Burgess v. Lasby Et Al.
• Author : Supreme Court of Montana
• Release Date : January 07, 1932
• Genre: Law,Books,Professional & Technical,
• Pages : * pages
• Size : 61 KB

Description

Appeal and Error ? Record on Appeal ? When Supreme Court may Consider Matters Dehors the Record ? Mortgages ? Receivers ? Appointment ? Vacation of Order ? Burden of Proof ? Official Acts of District Judge and Clerk of Court ? Presumptions. Appeal and Error ? Record on Appeal ? When Supreme Court may Consider Matters Dehors the Record. 1. The rule that evidence dehors the record on appeal, whether by affidavit or otherwise, will not be considered by the supreme court for the purpose of supplying deficiencies in the record is not of universal application; the court, on the contrary, may avail itself of authentic evidence of that nature for the purposes, inter alia, of preventing a miscarriage of justice or preserving jurisdiction of the lower court lawfully acquired. Same ? Case at Bar. 2. Under the above rule, held, that where the district court at the time it denied a motion to set aside an order of appointment of a receiver for mortgaged lands did not have before it the original order of appointment because it had been removed from the office of the clerk by parties unknown and was not returned until after the transcript on appeal had been filed with the clerk of the supreme court, such order, accompanied by an affidavit of the clerk of the district court setting forth the facts, could properly be considered by the supreme court, in conjunction with the record on file, in disposing of the appeal from the order of denial. Mortgages ? Effect of Provision That on Default of Mortgagor Rents and Profits Shall Accrue to Mortgagee. 3. The provision in a mortgage of lands that upon default of any of the conditions of the mortgage the debt secured shall at once become due and collectible and all rents and profits shall immediately accrue to the benefit of the mortgagee, does not create a lien on such rents and profits, but only confers a right upon the mortgagee to impose a lien as additional security for the payment of the mortgage debt.

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