cabin that the man had committed suicide, and that this statement was made by him before the coroner's jury two or three times; and that he repeated the assertion after being arrested.

It appears from the above evidence, therefore, that Peterson, who alone testified to the fact of the killing, is contradicted by his statement made out of court at different times within two or three days after the homicide; and also by the testimony before the coroner's jury, under oath, wherein he also stated that the deceased had committed suicide.

The testimony of the witness as to his seeing the act of killing, is rendered improbable in view of that portion of the evidence, which shows that in the day-time the cabin was so dark that a witness could not distinguish a man in it, so as to determine whether he was white or black; and that the coroner and his jury were compelled to light a candle to see where the deceased was lying.

The weight of the testimony of this witness is also seriously affected, in that he testified that the deceased was wounded about two or three o'clock at night, and was alive about seven o'clock the next morning, and asked for a cup of coffee, while the evidence of the surgeon shows that in his opinion a person with such a wound could not possibly live over thirty minutes, and that it would be impossible for a man after laying three or four hours with such a wound to articulate.

His testimony that the night upon which the alleged homicide took place, "was a moonshiny night," and that at ten o'clock, “the moon was about mid heaven," and was shining brightly, so that he could see plainly in the house though the door was shut, is contradicted by the evidence, which shows that upon that night the moon was invisible, and did not rise until between five and six o'clock in the morning. He was also contradicted in relation to his statement in his examination, that the knife belonged to the deceased, by his testimony before the coroner's jury that he did not know to whom the knife belonged.

Under this contradictory and improbable state of the testimony of this witness, who alone testified to the act of killing, and connected the defendant with homicide, we cannot say that the testimony excludes every reasonable doubt as to the guilt of the defendant. Such testimony cannot convince to a moral certainty, which is the certainty required in a criminal case.

The judgment is reversed, and the cause remanded for a new trial. All the judges concur.

STEBBINS v. SAVAGE ET AL.

August Term, 1884.

ORDER APPOINTING RECEIVER-APPEAL DOES NOT LIE FROM.-No appeal lies from an order of the district court appointing a receiver, although such order may command the defendants to refrain from any and all interference with the receiver in the discharge of his duties as such.

SHERIFF APPEALS BY FROM ORDER APPOINTING RECEIVER. --A sheriff, who has taken
possession of property assigned for the benefit of creditors, under attachment issued in
favor of one creditor, can not appeal from an order, made at the instance of another creditor
of the assignor, which requires him to deliver such property to a receiver. If an appeal lies
from such order, the proper parties to take the same are the creditors interested.

MOTION to dismiss an appeal. The opinion states the facts.
J. H. Garlock, for the appellants.

A. F. Burleigh, for the respondent.

WADE, C. J. This is an appeal from an order appointing a receiver. The plaintiff moves to dismiss the appeal for the reason that the same is not authorized by the statute. Appeals from the district to the supreme court are matters of statutory regulation. The statute designates in what cases appeals may be taken. The designation of these denies the right in all other cases. Appeals may be taken from certain interlocutory and other orders, but an order appointing a receiver does not belong to this class. The right of appeal does not belong or attach to an order appointing a receiver. The statute does not give the right and this court has already held in the case of Wilson v. Davis, 1 Mont., 98, that there is no appeal from an order appointing a receiver.

These considerations ought to settle the question conclusively, unless there is something in the case that takes it out of the ordinary rule. It is contended that because the order commands the defendants to refrain from any and all interference with the receiver in the discharge of his duties as such, it is therefore an injunction, besides being an order appointing a receiver, and that from an injunction, an appeal lies to this court. To this it is sufficient answer to say that there is no appeal here from an order enjoining the defendants. The appeal is from the order appointing a receiver, and no mention is made in the notice of an appeal from an order enjoining the defendants.

The appointment of a receiver carries with it the right to the possession of the property described and the further right not to be interfered with in such possession so long as the appointment remains in force. These are the ordinary powers and rights that belong to a receiver in order to make his appointment effectual, and they would have belonged to him and he could have possessed and held the property if they had not been mentioned in the order. Possession is property. And possession cannot ordinarily be taken from one and given to another without a hearing and adjudication. But the possession of a receiver is as much the possession of one party as the other. He holds the property for the benefit of the party who shall finally be adjudged entitled to the possession. He

No. 49-3.

is an officer of the law and in his hands the property is in the custody of the law. He preserves and protects the property for the benefit of the rightful owner. If the complaint does not make a case for the appointment of a receiver the defendant may move to have the order set aside. Appeal is not the remedy authorized by

statute.

In this action the defendants, Savage & Sons, made an assignment to Mund and Curry for the benefit of their creditors and took possession of the property assigned to them and entered upon the execution of their trust. Thereafter, at the suit of some one or more of the creditors, Johnson, the sheriff of Custer county, seized the property so assigned and took possession of the same.

Thereupon, the plaintiff, another creditor, brings this action to test the validity of the assignment aforesaid, and asks for the appointment of a receiver to hold the property, and the money received from the sale of that which is perishable and going to waste, until the validity of the assignment and the rights of the creditors shall have been adjudicated and fully determined. It does not seem to be a matter of much consequence whether the property is so held and preserved by the sheriff of Custer county, or by the receiver appointed herein. The creditors and not these officers of the court are the parties interested. Certainly the sheriff, who is the appellant herein, nor the persons in whose behalf he is acting, cannot ask this court to review an order from which there is no appeal.

The appeal is dismissed.
All concur.

FIRST NATIONAL BANK OF HELENA v. MCANDREWS.

August Term, 1884.

STATEMENT ON MOTION FOR NEW TRIAL-TRANSCRIPT WHAT MUST SHOW. -Papers purporting to be a statement on a motion for a new trial will not be considered by the appellate court when the transcript fails to show that either a motion for a new trial was filed in the lower court, or that a notice thereof was served upon the adverse party, as required by section 287 of the code of civil procedure.

MOTION to strike out portions of transcript. The opinion states the facts.

T. L. Nupton, for the appellant.

E. W. & J. K. Toole, for the respondent.

WADE, C. J. This is a motion to strike out that portion of the transcript purporting to be a statement on motion for a new trial, for the reason that there is nothing in the record to show that there was either a motion for a new trial filed or a notice thereof served upon the adverse party as required by section 287 of the code of civil procedure. That section provides that the party intending to move for a new trial must, within ten days after the verdict of the

jury or decision of the court, file with the clerk and serve upon the adverse party a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits or the minutes of the court, or a bill of exceptions or a statement of the case.

These provisions of the statute must be substantially complied with before this court can be called on to review the action of the lower court in overruling or sustaining a motion for a new trial. Unless there is a notice or motion designating the errors complained of, upon which the lower court has passed, there is nothing for this court to review. This is an appellate court and has jurisdiction to review the decisions of the lower court. Certain questions may be raised in the supreme court for the first time, but questions concerning new trials do not belong to this class. Unless the errors were assigned in the court below in the notice or motion, we have no means of knowing what questions were decided by such courts, and upon such a motion the court will only review the questions determined in the lower court.

We cannot establish a precedent declaring that a decision upon a motion for a new trial may be reviewed in this court when the record does not show that any motion for a new trial was filed in the lower court, nor that any notice of motion designating the errors complained of was filed or served upon the opposite party.

There is nothing in the record before us to indicate upon what questions the court passed in overruling the motion for a new trial. · We are informed that the motion for a new trial was overruled, but the record is silent as to the grounds of the motion, and as to whether there was a notice or motion filed. The recital in the statement, which was made up after the notice of motion was, or should have been filed, that the appellant relies upon certain errors assigned, cannot take the place of a notice designating the grounds of motion for a new trial, served as the statute provides. There is nothing in the record showing that the errors recited in the statement, were the errors designated in the notice, or that they raise the questions upon which the court passed in overruling the motion for a new trial..

The motion is granted.

All the judges concur.

OWEN, A LUNATIC, BY HIS COMMITTEE, v. MCCORMICK.

August Term, 1884.

STRIKING COMPLAINT FROM FILES-AMENDMENT-APPEAL.-An order striking a complaint from the files, and overruling a motion to allow it to be amended, is not a final judgment. Such order is not appealable.

MOTION to dismiss an appeal. The opinion states the facts.
Robinson & Stapleton, for the appellant.

E. W. & J. K. Toole and W. W. Dixon, for the respondent.

GALBRAITH, J. This is a motion to dismiss the appeal, from an order striking the complaint from the files and overruling a motion to allow it to be amended. It is claimed that this is an appealable order under the provisions of the code of civil procedure: Rev. Stats., 79, sec. 408. That "an appeal may be taken from a final judgment in an action on special proceeding commenced in the court in which the same is rendered," and that the order striking the complaint from the files is a final judgment within the meaning of this provision. But it was necessary that something more should be done before it can be said that a final judgment was rendered in the action. For aught that appears in the transcript, this action is still pending in the district court. The plaintiff might still, upon a proper showing, move to amend his complaint by adding the verification. He might have leave to file another complaint. The striking of the complaint from the files does not terminate the action. In Larab v. McConnel, 14 Minn., 513, and, afterwards, affirmed in Searles v. Thompson Bros., 18 Minn., 316, it was held that "an appeal will not lie from an order made on the trial of an action dismissing the action. This is a step nearer the rendition of a final judgment in the action than the order made by the court in this case. In the case of Lamb v. McCanna, supra, the court, by Gilfillan, C. J., says: "That the appeal must be from the judgment, or from the order on a motion for a new trial." An order which does not determine the controversy, but leaves it to proceed, is not appealable:" 3 Estee Pl., 406. In our opinion the appeal does not lie from an order refusing to allow an amendment to the complaint, or striking the complaint from the files.

The appeal is dismissed.
All the judges concur.

SUPREME COURT OF NEVADA.

STRAIT ET AL v. WILLIAMS.

Filed November 20, 1884.

CONTEMPT AFFIDAVIT FOR-VERIFICATION OF BY THIRD PERSON. -The affidavit charging a person with a contempt for refusing to obey an injunction decree, need not be verified by a party beneficially interested in the injunction proceedings; and, although the court should refuse to act, unless satisfied that the party making the affidavit was authorized to do so by the party beneficially interested, the presumption is that such party, by his attorney, presented the affidavit, and that fact is sufficient to show that the party making the affidavit was authorized.

THE SAME WHAT THE AFFIDAVIT MUST SHOW.-Such affidavit is sufficient to give the court jurisdiction of the contempt proceedings, if it states, in substance, the rendition of the judgment, that the same is in full force and effect and unreversed, and shows the violation thereof by the defendant.

APPLICATION for a writ of certiorari. The opinion states the

facts.

Henry K. Mitchell, for the petitioner.