Aker v. Aker, 5688

• Decision Date: 08 October 1931
• Docket Number: 5688
• Citation: 4 P.2d 359,51 Idaho 126
• Parties: DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant
• Court: Idaho Supreme Court

4 P.2d 359

51 Idaho 126

DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant

No. 5688

Supreme Court of Idaho

October 8, 1931

EXCEPTIONS BILL OF-SETTLEMENT.

1. Where trial judge resigns before preparation of transcript his successor may settle transcript under statute (C. S sec. 6885).

2. Where lower court refuses to settle transcript, as on ground that it omits material evidence, supreme court is unauthorized under statute to settle transcript as whole (C S., sec. 6884).

Original petition to settle reporter's transcript. Denied.

Petition denied.

Oppenheim & Lampert and Barber & Barber, for Appellant.

Delana & Delana and C. S. Hunter, for Respondent Dora M. Aker.

J. W. Galloway, for Respondent Leslie J. Aker.

BUDGE, J. Lee, C. J., and Givens, Varian and McNaughton, JJ., concur.

OPINION

BUDGE, J.

This is an original petition made to this court to settle what is designated as a "transcript of testimony as lodged and filed in the District Court of the Third Judicial District for Ada county as a bill of exceptions on appeal."

It appears from the record that Dora M. Aker brought an action for divorce against Leslie J. Aker, wherein Carrie B. Aker, mother of Leslie J. Aker, was made a party defendant under the alleged claim that said Carrie B. Aker held in her name certain real property as trustee, which said property was the community property of Leslie J. Aker and Dora M. Aker. Upon the trial of the action for divorce Carrie B. Aker. Upon her application, was relieved of the necessity of meeting any of the issues touching the divorce proceedings. The court, however, denied her application for dismissal as a party to the action, whereupon Carrie B. Aker filed a separate answer and cross-complaint in which she denied that the real property standing in her name was held by her as trustee and in her cross-complaint alleged that Leslie J. Aker and Carrie B. Aker claimed some right, title or interest in the property and that the title to said property be quieted in her. Dora M. Aker answered the cross-complaint of Carrie B. Aker denying each and all of the material allegations contained therein except admitting that she claimed an interest in and to said real property standing in the name of Carrie B. Aker. Other matters set out in the pleadings we deem immaterial for the purpose of disposing of the matters before us.

The cause was tried by the court, testimony being first taken upon the issues raised in the divorce action and thereafter evidence was taken upon the issues raised as to the ownership of the real property. The trial court made findings of fact, conclusions of law and decree awarding a divorce to Dora M. Aker and decreeing that the certain real property standing in the name of Carrie B. Aker was community property held by her in trust for Dora M. Aker and Leslie J. Aker, and apportioned said real property between Dora M. Aker and Leslie J. Aker subject to a small undivided interest awarded to Carrie B. Aker. It is not necessary to mention other property covered by the decree. From that part of the judgment apportioning said property as aforesaid and that part of the judgment awarding costs against appellant and from an order denying her motion for new trial Carrie B. Aker has appealed.

Thereafter upon proper application by appellant, the trial court made its order directing the official reporter to prepare a transcript of the testimony and the proceedings had with respect to the real property involved, whereupon a transcript was prepared. Upon the service of said transcript respondent Dora M. Aker made exceptions thereto in that testimony of certain witnesses, which testimony she claimed was material touching the matters involved in the appeal, with reference to the...