Ainslie v. The Idaho World Printing Co

• Citation: 1 Idaho 641
• Parties: George Ainslie, Respondent, v. The Idaho World Printing Co., Appellant.
• Decision Date: 01 January 1877
• Court: United States State Supreme Court of Idaho

1 Idaho 641

George Ainslie, Respondent, v. The Idaho World Printing Co., Appellant.

Supreme Court of Idaho

January 1, 1877

REVIEWING VERDICT ON APPEAL FROM JUDGMENT-PRACTICE.-Upon an appeal from a judgment the court may review the verdict of the jury, if expected to, and the evidence upon which such verdict is based. An exception to the verdict, on the ground that it is not supported by the evidence, cannot be reviewed on an appeal from the judgment, however, unless the appeal is taken within sixty days after the rendition of the judgment.

CONFLICT OF TESTIMONY.-When this court find upon a review that there is a substantial conflict of testimony, it will not disturb the decision of the court below refusing a new trial. If the testimony consist wholly of depositions, the rule is different, but not when a considerable portion was oral.

APPEAL from the Second Judicial District, Boise County.

J. W Brown and Huston & Gray, for the Appellant. Alanson Smith and J. Brumback, for the Respondent.

PRICKETT J.,

delivered the opinion.

HOLLISTER, C. J., and CLARK, J., concurred.

This action is upon a balance of account for services rendered by the respondent as editor of the Idaho "World." The defendant answered, setting up an express contract, and alleging full payment thereunder. The issues were tried by a jury, and the plaintiff obtained a verdict for nine hundred dollars, upon which judgment was rendered September 30, 1876. The defendant immediately moved for a new trial upon the minutes of the court, which motion was denied. A statement was thereafter settled and authenticated pursuant to the statute, and on the fourth day of October, 1876, an appeal from the judgment was taken to this court. The record brought to this court upon the appeal consists of the judgment-roll, the proceedings and statement on motion for a new trial, and the notice and undertaking of appeal. The error assigned is that the evidence is insufficient to justify the verdict.

The respondent insists that the facts cannot be reviewed in this court upon an appeal from the judgment, and that the statement settled after motion for a new trial can only be used for the purpose of showing errors of law committed in the court below, excepted to at the trial. This proposition would have been correct under the statute prior to the Revised Code, but the new code has changed the rule in this respect. Section 454 provided that "upon an appeal from a judgment, the court may review the verdict or decision if excepted to, or any intermediate order if excepted to which involves the merits or necessarily affects the judgment." The first subdivision of section 437 provides that "an appeal may be taken first from a final judgment in an action or proceeding commenced in the court in which the judgment is rendered within one year after the entry of judgment. But an exception to the decision or verdict on the ground that it is not supported by the evidence, cannot be reviewed...