Bergh v. Pennington

• Decision Date: 30 April 1921
• Citation: 198 P. 158,33 Idaho 726
• Parties: G. A. BERGH and JENNIE BERGH, Appellants, v. C. E. PENNINGTON, IRA E. BARBER, W. T. BURKE, H. F. BENSON, C. F. GUTHMAN, J. J. GOEHRY and H. R. NEITZEL, Sole Surviving Partners of the Copartnership Doing Business Under the Firm Name and Style of MURPHY LUMBER COMPANY; G. A. BERGH, JENNIE BERGH, CHARLOTTE BERGH, FRANK A. BAYLEY and W. W. PHILLIPS, as Trustees of the BERGH MINING & MILLING COMPANY, a Defunct Corporation; IRA E. BARBER, Trustee; W. W. PHILLIPS, W. S. CROSSMAN, F. T. BAYLEY, G. A. PERKINS, W. B. HERR, F. T. BAYLEY and W. WILSON, Copartners Doing Business Under the Firm Name and Style of HERR, BAYLEY & WILSON; F. S. BAYLEY, Trustee; IDAHO OREGON LEASES, a Corporation; R. H. JOHNSON and GEORGE TENNEY, Respondents
• Court: Idaho Supreme Court

198 P. 158

33 Idaho 726

G. A. BERGH and JENNIE BERGH, Appellants, v. C. E. PENNINGTON, IRA E. BARBER, W. T. BURKE, H. F. BENSON, C. F. GUTHMAN, J. J. GOEHRY and H. R. NEITZEL, Sole Surviving Partners of the Copartnership Doing Business Under the Firm Name and Style of MURPHY LUMBER COMPANY; G. A. BERGH, JENNIE BERGH, CHARLOTTE BERGH, FRANK A. BAYLEY and W. W. PHILLIPS, as Trustees of the BERGH MINING & MILLING COMPANY, a Defunct Corporation; IRA E. BARBER, Trustee; W. W. PHILLIPS, W. S. CROSSMAN, F. T. BAYLEY, G. A. PERKINS, W. B. HERR, F. T. BAYLEY and W. WILSON, Copartners Doing Business Under the Firm Name and Style of HERR, BAYLEY & WILSON; F. S. BAYLEY, Trustee; IDAHO OREGON LEASES, a Corporation; R. H. JOHNSON and GEORGE TENNEY, Respondents

Supreme Court of Idaho

April 30, 1921

APPEAL from the District Court of the Third Judicial District, for Owyhee County. Hon. Ed. L. Bryan, Judge.

Action by appellants against C. E. Pennington et al. to quiet title to certain mining claims in Owyhee county, and action by Murphy Lumber Company to foreclose a trust deed covering the same property, consolidated by stipulation. Judgment for respondents. Affirmed.

Judgment affirmed. Costs awarded to respondents.

S. T Schreiber and P. E. Cavaney, for Appellants, cite no authorities on points decided.

Ira E Barber, W. H. Davidson, Hawley & Hawley and O. W. Worthwine for Respondents.

The judgment in favor of Benson, intervenor in this cause, is identical with what it would have been in the cause of Guthmann v. Bergh et al., had there been no consolidation, and what it might have been in the cause of Bergh v. Pennington, had there been no second action and no intervention, and the error, if any, having been harmless, appellants are not entitled to assign it or stand upon it. (C. S., sec. 6728, and cases cited.)

BUDGE, J. Rice, C. J., and Dunn and Lee, JJ., concur.

OPINION

BUDGE, J.

Respondents heretofore made a motion in this court to strike the reporter's transcript from the record and to dismiss the appeal in this cause, and the opinion of this court thereon, which will be found ante, p. 198, 191 P. 204, contains a statement of the material facts of the case, and discloses the action of this court in striking the reporter's transcript and denying the motion to dismiss the appeal.

The reporter's transcript having been stricken, the only record now before us is the judgment-roll. As was said by this court in the case of Storey & Fawcett v. Nampa &amp Meridian Irr. Dist., 32 Idaho 713, at 720, 187 P. 946, 947: "It must be regarded as settled law in this state under existing statutes that where upon appeal from a judgment the record brought to this court contains neither a transcript of the proceedings had upon the trial nor a bill of exceptions,...