Brown v. Macey

• Decision Date: 22 May 1907
• Citation: 13 Idaho 451,90 P. 339
• Parties: JOSEPH BROWN, Respondent, v. CHARLES F. MACEY, Appellant
• Court: Idaho Supreme Court

90 P. 339

13 Idaho 451

JOSEPH BROWN, Respondent, v. CHARLES F. MACEY, Appellant

Supreme Court of Idaho

May 22, 1907

FAILURE TO FIND ON ALL THE ISSUES-DECISION AGAINST LAW-NEW TRIAL.

1. Failure to find on all the material issues upon which evidence was introduced is error for which a new trial will be granted.

2. Where a judgment is entered upon findings which do not determine all the material issues raised by the pleadings with respect to which evidence was introduced, the decision is against law, and a new trial may be granted on that account.

3. Where the defendant's answer and cross-complaint present no material and substantial issues, and findings made thereon, whether in favor of or against the contention of the defendant, would not, as a matter of law, alter the judgment it is unnecessary to make findings thereon, and a failure to do so is not error for which a new trial will be granted.

(Syllabus by the court.)

APPEAL from the District Court of the Seventh Judicial District for Washington County. Hon. Frank J. Smith, Judge.

Action by plaintiff upon a promissory note. Answer and cross-complaint in confession and avoidance. Judgment for the plaintiff; defendant moved for a new trial and appealed from the order denying the same. Order and judgment affirmed.

Judgment affirmed. Costs awarded in favor of the respondent.

Karl Paine, D. C. Nevin and B. S. Varian, for Appellant.

The court failed to find upon all the material issues presented by the pleadings. (Wood v. Broderson (Idaho), 85 P 490; Carson v. Thews, 2 Idaho 176, 9 P. 605; Tage's Admr. v. Alberts, 2 Idaho 271, 13 P. 19; Bowman v. Ayers, 2 Idaho 305, 13 P. 346; Standley v. Flint, 10 Idaho 629, 79 P. 815; Spelling's New Trial and Appellate Practice, secs. 253 592.)

"In some states it appears to have been held necessary to specify in the assignment of errors wherein the decision is against law; in other words, that the mere designation of that as one of the grounds is insufficient. But no such construction can be given the section of the California code on the subject, but rather the contrary, according to the doctrine of 'Expressio unius, alterior excludit.'" (Spelling's New Trial and Appellate Practice, sec. 437.)

Frank Harris, for Respondent.

The court has repeatedly held that it will not consider any assignment of error not raised and urged in the court below, except jurisdictional matters and insufficiency of the pleadings in setting forth a cause of action or defense. (Medbury v. Maloney, 12 Idaho 634, 88 P. 81; Miller v. Donovan, 11 Idaho 545, 83 P. 608; Gamble v. Dunwell, 1 Idaho 268; Fox v. West, 1 Idaho 782.)

Errors will not be considered in this court where it is shown by the record that the matters complained of were not raised on the motion for a new trial and urged in the lower court. (Watson v. Molden, 10 Idaho 570, 79 P. 503.)

There being an appeal from the order denying a new trial, the question as to whether the findings are sufficient to support the judgment or correspond to the issues presented by the pleadings, or what issues the pleadings present cannot be considered upon appeal from an order denying a new trial, but can be considered only on an appeal from the judgment. (Riverside Water Co. v. Gage, 108 Cal. 240, 41 P. 299; Schroder v. Pissis, 128 Cal. 209, 79 Am. St. Rep. 107, 60 P. 758.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

This action was commenced by the respondent on the seventeenth day of March, 1905, for the recovery of the sum of $ 15,000, together with interest claimed to be due on a promissory note executed and delivered by the defendant on June 25, 1902. The defendant answered the complaint and also filed a cross-complaint. By his answer he admits the execution and delivery of the note and sets up a further and separate answer in the nature of a confession and avoidance. He alleges that the note was given in part payment for a mining claim; that at the time of the transaction he paid the sum of $ 1,000 in cash and executed this promissory note for the balance of the purchase price; that the plaintiff represented that he had good title to the mining claim and that he had advertised his colocators out of the property in accordance with the United States statutes, and that he would furnish the defendant with proof of forfeiture on the part of his colocator, and also proof of advertising him out for failure to contribute his share of the expenses for assessment work. He also alleges that thereafter the plaintiff entered into an additional parol agreement, whereby he was to extend the time of payment until he perfected title. He further alleges by way of cross-complaint that the plaintiff, subsequent to deeding the mining claim, the California Lode, to defendant, conveyed an undivided one-half interest therein to one Simeon W. Ford, and thereby cast a cloud upon defendant's title. That on the first day of August, 1905, the defendant tendered to the plaintiff a deed to all the interest he had received in and to the California Lode claim, and demanded that he be reimbursed the $ 1,000 paid on the purchase price, and the further sum of $ 959 expended by him for annual labor and assessment work done on the property and in the endeavor to perfect the title thereto. The plaintiff did not demur to the answer or cross-complaint, but answered the cross-complaint. He alleged that ever since the eighth day of August, 1902, Ford had been ready and willing upon the payment of the note to convey to the defendant all his interest in the mining claim acquired by reason of the deed from plaintiff to Ford, and that the plaintiff had offered and tendered such deed to defendant.

The case went to trial on the issues thus made, and the record contains some fifty printed pages of evidence introduced on these issues. At the conclusion of the trial the court made and filed his findings of fact and conclusions of law, which are as follows:

"1. That on the fifteenth day of June, 1902, said defendant executed and delivered to the plaintiff the promissory note set forth in the complaint herein.

"2. That said note was executed for and in consideration of a certain mining claim sold and delivered by the plaintiff to the defendant on or about the day said note bears date.

"3. That no part of either the principal or interest of said note has been paid.

"4. That the amount of principal and interest now due and unpaid, according to the terms of said note, is $ 17,368.75, lawful money of the United States.

"As a conclusion of law from the foregoing facts, the court finds that the plaintiff is entitled to a judgment for the sum of $ 17,368.75, in lawful money of the United States, and costs of suit, and it is ordered that judgment be entered accordingly."

It will be seen at once that these findings only covered the allegations contained in the complaint as to the execution and delivery of the note, its nonpayment and the amount due thereon. The defendant moved for a new trial and his motion was denied. He failed to appeal from the judgment but has appealed from the order denying his motion for a new trial. The only error urged in this court for a reversal of the order denying a new trial is that the court failed to find on all material issues made by the pleadings. Plaintiff cites the following cases from this court in support of this contention: Wood v. Broderson, 12 Idaho 190, 85 P. 490; Carson v. Thews, 2 Idaho 176, 9 P. 605; Tage's Admr. v. Alberts, 2 Idaho 271, 13 P. 19; Bowman v. Ayers, 2 Idaho 305, 13 P. 346; Standley v. Flint, 10 Idaho 629, 79 P. 815.

Respondent insists that since the appellant failed to appeal from the judgment and has only appealed from the order denying his motion for a new trial, and on motion for a new trial neglected to particularly specify as a ground for new trial that the court had failed to find on all the material issues he cannot now be heard in the appellate court to urge as error the failure to make...