Anderson v. Walker Co.

• Decision Date: 04 April 1924
• Citation: 225 P. 144,38 Idaho 751
• Parties: A. W. ANDERSON, Appellant, v. THE WALKER COMPANY, Respondent
• Court: Idaho Supreme Court

225 P. 144

38 Idaho 751

A. W. ANDERSON, Appellant, v. THE WALKER COMPANY, Respondent

Supreme Court of Idaho

April 4, 1924

APPEAL AND ERROR - REPORTER'S TRANSCRIPT ON APPEAL STRICKEN WHEN NOT SETTLED BY COURT-FINDINGS-WHEN NOT REVIEWABLE-AMENDMENTS.

1. Under C. S., sec. 6886, subdivision 3, a transcript of the evidence not duly certified and settled by the trial judge cannot be considered on appeal from the judgment.

2. A stipulation between respective counsel waiving the service of notice of reporter's transcript in order that the same may be filed with the clerk of the supreme court in the time required by its rules, and providing that if errors are thereafter discovered before argument of the cause a bill of exceptions may be served upon either of such parties, does not waive a compliance with the provision of the statute which requires the judge who tried the case to settle such transcript; it is within his power to make alterations and corrections necessary to correspond with the truth, and the statute has left it to the judge alone to settle the transcript.

3. On an appeal from the judgment or from an order denying a new trial where no bill of exceptions has been allowed as provided by C. S., sec. 6882, nor any reporter's transcript settled and allowed as provided by C. S., sec 6886, and brought to this court, it cannot review the question whether the findings of the lower court are sustained by the evidence but must assume there was evidence to warrant the findings made.

4. In an action to rescind a contract for the exchange of property where plaintiff asked leave after the commencement of the trial to file a third amended complaint so as to more specifically allege his offer to return the property he had received in exchange for the property he was seeking to recover, it was not error to refuse such an amendment where the court admitted evidence on this issue and found that an offer to return had not been tendered.

APPEAL from the District Court of the Eleventh Judicial District for Cassia County. Hon. T. Bailey Lee, Judge.

Action to rescind a contract. Judgment for defendant. Affirmed.

Judgment affirmed, with costs to respondent.

S. T. Lowe and E. R. Dampier, for Appellant.

The court erred in refusing to permit the plaintiff to file his third amended complaint. (C. S., secs. 6722, 6723, 6726.)

An application to amend a pleading to conform to the evidence made before the findings and decree are signed by the judge is not too late. (Snowy Peak Mining Co. v. Tamarack & Chesapeak Mining Co., 17 Idaho 630, 107 P. 60.)

There was evidence to support the proffered amendment, and the same should have been allowed. (Hatch v. Potlatch Lumber Co., 18 Idaho 42, 108 P. 343, 27 L. R. A., N. S., 707; Kamm v. Bank of California, 74 Cal. 191, 15 P. 765; Guiding v. Green, 95 Cal. 630, 30 P. 786; Drew v. Hicks, 4 Cal. Unrep. 440, 35 P. 563.)

Morris & Griswold and Henderson & Johnson, for Respondent.

The record contains what purports to be a reporter's transcript of the evidence and proceedings at the trial, which is not settled by the trial court. It cannot be considered on appeal. (Wells v. Culp, 30 Idaho 438, 166 P. 218; Minneapolis Threshing Machine Co. v. Peterson, 31 Idaho 745, 176 P. 99; Ellsworth v. Hill, 34 Idaho 359, 200 P. 1067; McCarty v. Warnkin, 35 Idaho 614, 207 P. 1075; Sweaney & Smith Co. v. St. Paul Fire & Marine Ins. Co., 35 Idaho 303, 206 P. 178.)

WILLIAM A. LEE, J. McCarthy, C. J., and Wm. E. Lee, J., concur.

OPINION

WILLIAM A. LEE, J.

--This is a suit in equity to cancel a deed to certain premises in Burley, Idaho, used as an apartment house, a note for $ 8,000 and an assignment of a contract of purchase of a section of school land in Utah all of these instruments having been executed by appellant to respondent as a consideration for the purchase price of an undivided half interest in and to a gravel pit situate near Ogden, Utah. The grounds alleged for the cancelation of these instruments are misrepresentation and fraud on the part of respondent inducing the execution of these instruments on the part of appellant. The action appears to have been tried upon a second amended complaint and the answer of respondent thereto, it having first demurred generally and specially to this complaint. The special grounds were that it was uncertain, and that it was ambiguous because it failed to allege that appellant had received anything of value for the execution of these instruments sought to be canceled, and if he had so received value for their execution, he had failed to tender a return of such consideration or to give any reason for not returning the same before he demanded a rescission of the instruments executed on his part as a consideration for such conveyance to him.

After the taking of the testimony had begun appellant asked leave to file a third amended complaint, the purpose of which was to avoid some of the objections raised to the second amended complaint by the demurrer. To this application to amend respondent objected, and the court denied permission to file the third amended complaint. A jury was impaneled in the trial of said cause and to it was submitted special interrogatories upon which it returned findings. The court then made findings of fact and conclusions of law therein which were in favor of respondent company. Upon these findings and conclusions a judgment was entered that appellant take nothing by reason of his second amended complaint and that respondent recover costs. A motion for a new trial was made and overruled and the appeal is from the judgment and the order overruling the motion for a new trial, the motion to set aside the special findings of the jury, the motion in arrest of judgment, and the motion for judgment non obstante veredicto.

Appellant makes numerous assignments of error, that the court erred: (1) in refusing to permit the third amended complaint to be filed; (2) in denying the motion for directed verdict; (3) in submitting the special interrogatories to the jury; (4) in instructing the jury; (5) in adopting certain findings made by the jury; (6) in finding that appellant was not defrauded or did not tender back the property received from respondent; (7) in finding that the contract between the parties providing for this transfer of property was a valid and subsisting contract; (8) in overruling the motion to set aside the special findings and in entering judgment against appellant.

Before the cause was argued in this court respondent moved to strike from the transcript on appeal pages 98 to 153, inclusive which comprise the reporter's transcript, on the ground that the same had not been settled in accordance with C. S., sec. 6886. An inspection of the record shows that this transcript has never been settled by the trial judge as this statute requires. It is contended that this part of the record should not be stricken because of a stipulation entered into, wherein the respective counsel waived the service of notice to settle the reporter's transcript upon appeal, in order that the plaintiff and respondent might file the same with the clerk of the supreme court within the period required by the rules of this court, and that if errors were thereafter discovered on appeal before argument of the cause a bill of exceptions might be served on either of the respective parties and such errors...