Aker v. Aker

• Decision Date: 03 May 1932
• Docket Number: 5825
• Parties: DORA M. AKER, Respondent, v. LESLIE J. AKER, Respondent, and CARRIE B. AKER, Appellant
• Court: Idaho Supreme Court

11 P.2d 372

52 Idaho 50

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

No. 5825

Supreme Court of Idaho

May 3, 1932

APPEAL AND ERROR-TRANSCRIPT-SCOPE OF CONTENTS-SETTLEMENT.

1. Judge succeeding in office judge who tried case had authority to settle transcript (C. S., sec. 6885; Supreme Court Rule 5) made by a judge other than the trial judge.

2. On appeal from order refusing to settle transcript on appeal supreme court must examine record as nisi prius court should do.

3. Statute contemplates that only so much of reporter's transcript as may be necessary need be brought up by appellant (C. S., sec. 6886, as amended by Laws 1927, chap 33).

4. A respondent may designate "omissions" from reporter's transcript as "errors" (C. S., sec 6886, as amended by Laws 1927, chap. 33).

5. Resolution of question whether necessary evidence has been omitted from transcript is act calling for exercise of discretion by judge settling transcript (C. S., sec. 6886, as amended by Laws 1927, chap. 33).

6. On appeal by husband's mother from portion of judgment in divorce action affecting mother's property rights, she need only bring up all evidence pertaining to that part of judgment (C. S., sec. 6886, as amended by Laws 1927, chap 33).

7. Where question of property rights in divorce action was tried in separate trial, husband's mother appealing from part of judgment affecting her property rights held not required to include in reporter's transcript testimony heard in divorce trial (C. S., sec. 6886, as amended by Laws 1927, chap. 33).

8. Respondent challenging completeness of reporter's transcript should have furnished judge with copy or summary of testimony claimed to have been omitted (C. S., sec. 6886, as amended by Laws 1927, chap. 33).

9. Impeaching evidence dehors immediate record need not be included in record on appeal, trial judge being sole judge of credibility of witnesses (C. S., sec. 6886, as amended by Laws 1927, chap. 33).

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Dana E. Brinck, Judge.

Appeal from an order by a district judge refusing to settle a transcript on appeal. Reversed and remanded, with instructions to settle the transcript.

Orders reversed and case remanded, with instructions. Costs awarded to the appellant.

Oppenheim & Lampert, Ira E. Barber and J. W. Galloway, for Appellant.

The transcript of evidence lodged by the official reporter and certified to by him constitutes prima facie and presumptively all the evidence offered or introduced on the trial of the separate issues involving appellant and her property. (C. S., sec. 6886, as amended Laws 1927, p. 42, sec. 6560; 4 C. J., sec. 1646, p. 58, sec. 1801, p. 200.)

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

The trial court alone has authority to pass upon the claimed deficiencies in a reporter's transcript. An order of that court in respect thereto is final except upon the clear showing in this court of an absolute abuse of discretion in respect thereto by the trial court. (C. S., secs. 6884, 6886; Hansen v. Boise-Payette Lumber Co., 30 Idaho 801, 168 P. 163; Moody v. Crane, 34 Idaho 103, 199 P. 652; Aker v. Aker, 51 Idaho 126, 4 P.2d 359; Aker v. Aker, 51 Idaho 555, 8 P.2d 777.)

LEEPER, J. Lee, C. J., and Budge, Givens and Varian, JJ., concur.

OPINION

LEEPER, J.

Dora M. Aker and Leslie J. Aker were wife and husband, and Carrie B. Aker is the mother of the latter. On January 20, 1930, Dora M. Aker filed a complaint for divorce against Leslie J. Aker, alleging cruelty. In this action Carrie B. Aker was joined as a party defendant, the complaint charging in substance that she held the title to certain real property in trust for the use and benefit of the community composed of the plaintiff and the defendant and which was subject to disposal by the court in the pending action. Carrie B. Aker filed a demurrer for misjoinder of parties defendant, which was overruled. Thereupon an answer was filed denying the allegations of the complaint, and defendant cross-complained, setting up a fee-simple title in herself and praying that the same be quieted. Embodied in the answer was a motion for separate trial of the issues pertaining to the property. This motion was granted and an order was entered by the trial judge directing a separate trial of the property issues and relieving Carrie B. Aker from participating in the divorce trial.

Thereafter that phase of the case relating to the divorce action went to trial, without the presence of Carrie B. Aker or her attorneys, and was fully completed. After the conclusion of the divorce hearing that part of the cause relating to the title of the property came on for hearing on June 26, 1930, the minute entry and the reporter's recital indicating that it was a separate trial, entirely distinct from the divorce issue, and evidence was introduced on behalf of the plaintiff and the defendant Carrie B. Aker. The record indicates that all of the evidence relative to the title to the property was introduced at the second hearing, and none of it at the first hearing. This was expressly stated by the trial judge during the course of the trial.

At the conclusion of the second hearing the court entered one judgment, granting Dora M. Aker a divorce against Leslie J. Aker, awarding her a part of the property in question absolutely, and awarding Leslie J. Aker the balance of the property absolutely, both subject to a one-seventeenth interest only in Carrie B. Aker. The latter thereupon moved to set aside the judgment in so far as the same affects the interests of said Carrie B. Aker, and for a new trial, which was denied by Judge Brinck. The defendant Carrie B. Aker then served a notice of appeal only from that part of the judgment adverse to her property interests, which appeal was thereafter duly perfected. In his order directing the transmittal of exhibits to this court Judge Brinck ordered the clerk to transmit "the original exhibits offered and admitted in evidence in the trial of the separate issues involving the property rights of Carrie B. Aker," and in his order to the reporter the judge required him to prepare "a transcript of the testimony and proceedings of this court in connection with the separate trial of the issues involving the property of the said Carrie B. Aker." The reporter thereupon prepared his transcript and certified that it "constitutes a full, true and complete transcript . . . . and contains all of the evidence offered or introduced on the said trial . . . . and contains all of the evidence in relation to the property rights so far as affecting the defendant, Carrie B. Aker, is concerned."

In the meanwhile, Judge Brinck had resigned and Judge Charles E. Winstead succeeded to his office. After the transcript was served, the respondent Dora M. Aker filed a designation of errors, urging as one of the grounds the omission of the testimony of a large number of witnesses who testified in the divorce action on behalf of the plaintiff. The respondent, pursuant to an order, thereafter furnished a list of some thirty witnesses who had testified at the divorce trial, but not at the subsequent separate trial relating to property interests, and some two months after the time for designating errors had expired, moved for an order requiring appellant "to include in the reporter's transcript of evidence on appeal, the testimony of the witnesses hereinafter named, whose evidence was relative to the material issues in the action between the plaintiff Dora M. Aker and the defendants Leslie J. Aker and Carrie B. Aker, and which evidence was in many important particulars in direct conflict with the evidence of Leslie J. Aker and Carrie B. Aker. . . ." So far as shown by the record, the evidence purported to have been given by the witnesses sought to be included was never presented to the court, either in substance or otherwise, upon the hearing of the motion, and there is no direct proof of its relevancy or materiality. Several affidavits were presented by appellant positively denying that the witnesses testified at all as to the property issues between Dora M. Aker and Carrie B. Aker, and affirming that their testimony was confined solely to the divorce issues between Dora M. Aker and Leslie J. Aker.

After a hearing Judge Winstead made an order requiring the appellant to include the testimony of all of the witnesses named in the motion, without any specific finding as to the relevancy or materiality of their testimony. Appellant then filed a written declination to comply with the order, because of the prohibitive expense involved, and the court entered an order on September 4, 1931, declining to settle the reporter's transcript as a bill of exceptions, from which this appeal is prosecuted.

The matter presents a new question of practice in this jurisdiction. Our statutes (C. S., sec. 7153) do not require that an appeal be taken from the whole judgment. C. S., sec. 7163, provides that the record furnished on appeal must contain, among other papers and records, "a reporter's transcript prepared and settled as prescribed in section 6886, upon which the appellant relies. . . ." C. S., sec. 6886, as amended by Sess. Laws 1927, chap. 33, p. 42, provides for the preparation of the reporter's transcript in lieu of a bill of exceptions:

"Any party desiring to procure a record of evidence and proceedings made during the trial of an action or special proceeding in the district court, for use on appeal to the Supreme Court may, in lieu of preparing, serving and procuring the settlement of a bill of exceptions as in this chapter provided, procure a transcript consisting of an original typewritten copy and four carbon...