Brooks v. Lewiston Business College

• Decision Date: 18 July 1929
• Docket Number: 5403
• Parties: WALTER C. BROOKS, Respondent, v. LEWISTON BUSINESS COLLEGE, INC., and FRED L. ULEN, Appellants
• Court: Idaho Supreme Court

282 P. 378

48 Idaho 71

WALTER C. BROOKS, Respondent, v. LEWISTON BUSINESS COLLEGE, INC., and FRED L. ULEN, Appellants

No. 5403

Supreme Court of Idaho

July 18, 1929

APPEAL AND ERROR-REPORTER'S TRANSCRIPT-SUFFICIENCY OF-RULES OF COURT.

1. On appeal from order denying motion for new trial reporter's transcript, not properly identified as one used by trial judge at hearing on motion nor settled by judge, will be stricken on motion.

2. Where record on appeal from order denying motion for new trial contains no proper certificate of judge specifying records and papers used on hearing as required by supreme court rule 21, and statement in order overruling motion that he used certain records and affidavits and certificate as to papers used do not show that they were all those used in considering motion, completed transcript will be stricken.

3. Appeal from order denying motion for new trial must be dismissed, in absence of proper certificate of trial judge as to records and papers used by him at hearing on the motion as required by rule 21 (formerly rule 24).

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Motion to dismiss appeal. Granted.

Appeal dismissed.

Fred J Babcock and Cox & Martin, for Respondent.

Where the transcript on appeal shows that the reporter's transcript was not settled until after the hearing on the motion for a new trial, such reporter's transcript will be stricken from the transcript on appeal on motion. (Buckle v. McConaghy, 11 Idaho 533, 83 P. 525; Wood v. Tanner, 15 Idaho 689, 99 P. 123, 1053.)

The transcript or record on appeal from an order denying a motion for a new trial, or other contested motion, must contain a certificate signed by the judge, clerk or attorneys that the papers therein contained were submitted to the judge and used on the hearing of the motion, and constitute all of the record, papers and files used or considered by the judge on such motion. If the transcript does not contain the required certificate, or the one contained therein is not in substantial conformity to the rule, the order disposing of the motion cannot be considered, and the appeal therefrom will be dismissed. (C. S., secs. 6892, 7165; Supreme Court Rules 21, 24 (45 Ida.); Robinson v. School Dist. No. 61, 36 Idaho 133, 209 P. 726; Muncey v. Security Ins Co., 42 Idaho 782, 247 P. 785; McCarty v. Warnkin, 35 Idaho 614, 207 P. 1075; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Douglas v. Kenney, 40 Idaho 412, 233 P. 874.)

Tannahill & Leeper, and Jas. F. Ailshie, for Appellants.

A certificate was signed and filed in the court below, which was not sent up by the clerk. We have asked for a diminution of the record to supply this certificate. This practice has always been approved. (Smith v. Inter-Mountain Auto Co., 25 Idaho 212, 136 P. 1125; Witt v. Beals, 31 Idaho 84, 169 P. 182; Steensland v. Hess, 25 Idaho 181, 136 P. 1124; Smith v. Benson, 32 Idaho 99 178 P. 480; Fleming v. Benson, 32 Idaho 103, 178 P. 482; Bumpas v. Moore, 31 Idaho 671, 175 P. 339.)

If paper is missing from record that is not ground to dismiss or strike, but is proper ground for diminution of record. (Zienke v. Northern Pacific Co., 7 Idaho 746, 65 P. 431; Coey v. Cleghorn, 10 Idaho 162, 77 P. 331; Witt v. Beals, supra.)

If record itself is adequate, the appeal will not be dismissed. In this case we have certified up the entire record of the court below from which it can be ascertained that this court had before it all papers, records and files used by the court below, and that these, as set forth in the certificate, are all the records and files except formal papers which could not affect the merits of the case. (Gropp v. Huyette, 35 Idaho 683, 208 P. 848; Strand v. Crooked River Min. Co., 23 Idaho 577, 131 P. 5.) Substantial compliance is sufficient. (Feenaughty Machinery Co. v. Turner, 44 Idaho 363, 257 P. 38; Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785.)

VARIAN, J. Budge, C. J., and Givens and T. Bailey Lee, JJ., concur. Wm. E. Lee, J., dissents.

OPINION

VARIAN, J.

Appeal from an order denying motion for a new trial. Plaintiff (respondent) had judgment November 2, 1927. Defendants filed notice of intention to move for new trial November 12, 1927. Although the record filed April 20, 1929, does not so show time for filing, affidavits was extended to January 11, 1928, when appellants' affidavits were filed. Respondent filed one affidavit June 6, 1928, and the motion came on for hearing June 11, 1928, but was continued "for further hearing." The motion was heard, submitted and denied on January 17, 1929. Reporter's transcript was certified by reporter February 23, 1929 (application and order therefor dated and filed March 2, 1929). Notice of appeal from the order denying a new trial filed March 2, 1929; undertaking filed on March 6, 1929. June 8, 1929, appellants filed motion in re diminution of record in this court, to have certified up orders extending time to file affidavits and the following papers filed after the perfection of the appeal herein, to wit: Certificate of trial judge as to papers used on hearing of motion for a new trial, dated April 9, 1929, stipulation of counsel and order settling reporter's transcript, dated and filed April 9, 1929, and affidavit of E. W. Lutz, in opposition to motion, filed at appellants' request in court below June 8, 1929. In connection with the motion are copies of said papers certified by the clerk on June 11, 1929, lodged in this court June 12, 1929. The motion is granted in so far as it refers to the orders extending time and the certificate of the trial judge dated April 9, 1929, and denied as to the other...