Baldwin v. Singer Sewing Machine Co., 5321

• Decision Date: 08 January 1930
• Docket Number: 5321
• Parties: VIVIAN F. BALDWIN and E. R. BALDWIN, Respondents, v. SINGER SEWING MACHINE COMPANY, a Corporation, and ED ANDERSON, Appellants
• Court: Idaho Supreme Court

284 P. 1027

48 Idaho 596

VIVIAN F. BALDWIN and E. R. BALDWIN, Respondents, v. SINGER SEWING MACHINE COMPANY, a Corporation, and ED ANDERSON, Appellants

No. 5321

Supreme Court of Idaho

January 8, 1930

APPEAL AND ERROR-RECORD ON APPEAL-CONTENTS THEREOF-WRITTEN OPINION OF TRIAL JUDGE-OBJECTION TO TRIAL JUDGE'S CERTIFICATE-WHEN RAISED.

1. Written opinion of trial judge constitutes no part of the record and is not before supreme court on appeal.

2. What shall constitute record on appeal is purely dependent upon statute specifying papers or documents which transcript on appeal must contain.

3. Papers which are not contained in bill of exceptions or reporter's transcript, and are no part of judgment-roll are not properly a part of the transcript on appeal in accordance with C. S., secs. 6892, 6901, 7163, and should be stricken out.

4. Certificate of trial judge that he considered all records and files as contained in judgment-roll, as provided for in C S., sec. 6901, if erroneous, should have been corrected in lower court and cannot be first questioned on appeal, and was, therefore, final and conclusive.

APPEAL from District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Motion by respondents, suggesting diminution of the record. Denied.

Motion denied.

Martin & Martin and H. B. Walker, for Appellants.

James F. Ailshie, Jr., and J. R. Smead, for Respondents.

Counsel file no briefs.

T. BAILEY LEE, J. Givens, C. J., and Wm. E. Lee and Varian, JJ concur. Budge, J., took no part.

OPINION

T. BAILEY LEE, J.

Defendants appealed from both the judgment and order denying their motion for new trial. Plaintiffs and respondents have moved diminution of the record, suggesting that there should be incorporated therein three papers filed in the trial court, to wit, a request for the medical examination of plaintiff, a motion for such examination, and a stipulation that a physical examination of plaintiff be had. Defendants have moved to strike said motion from the files, together with its supporting affidavit and exhibits, the latter consisting of copies of the papers aforementioned.

The affidavit charges that the trial judge considered such papers in denying the motion for new trial, quoting as evidence thereof an excerpt from the court's written opinion. The only part of the excerpt that is possibly germane is the recitation that "Defendants were given the opportunity to have their own doctors examine the plaintiff, and they did so, but gave no evidence on the trial." The written opinion of the trial judge is no part of the record, and is not before us. (Corker v. Cowen, 30 Idaho 213, 164 P. 85.) Even if it were, it would merely show knowledge on the part of the trial judge that such papers as are here sought to be supplied had been filed; and these papers had no probative effect on the merits whatever.

What shall constitute the record on appeal is purely dependent upon statute. The sections of the statutes upon the subject of appeal specify the papers or documents which the transcript on appeal must contain; and only those should be put in. (Taylor v. McCormick, 7 Idaho 524, 64 P. 239; Williams v. Boise Basin M. Co., 11 Idaho 233, 81 P. 646.) When papers are not contained in a bill of exceptions or reporter's transcript and are no part of the judgment-roll, they are not properly a part of the transcript on appeal, and should be stricken out. (King v. Seebeck, 20 Idaho 223, 118 P. 292.)

C. S sec. 7163, enumerating the integral constituents of the record on appeal from a final judgment requires that there be furnished a copy of the notice of appeal, of the judgment-roll and of any bill of exceptions...