Carnahan v. Connolly

• Decision Date: 14 October 1901
• Citation: 68 P. 836,17 Colo.App. 98
• Parties: CARNAHAN v. CONNOLLY.
• Court: Colorado Court of Appeals

68 P. 836

17 Colo.App. 98

CARNAHAN v. CONNOLLY.

Court of Appeals of Colorado

October 14, 1901

Error to district court, Lake county.

Action by Charles T. Carnahan against P.K. Connolly. From an order dismissing plaintiff's complaint, and an order refusing to reinstate, he brings error. Affirmed.

Charles J. Hughes, Jr., and John M. Maxwell for plaintiff in error.

Thomas Bryant & Lee (A.S. Blake, of counsel), for defendant in error.

GUNTER J.

March 5, 1895, complaint in adverse suit filed in district court of Lake county; 23d of same month, defendant's demurrer. March 7, 1898, cause called by court as within rule for dismissal for want of prosecution. On motion of plaintiff's then counsel, question whether case should be dismissed for want of prosecution, under rule 18, of said court, set for hearing at 2 o'clock p.m., March 8, 1898. Hearing had, plaintiff and defendant appearing by respective counsel; evidence and argument heard. Court found case should be dismissed, and entered judgment, in which appears "It is ordered by the court that this case be, and the same hereby is, dismissed for want of prosecution, under rule 18 of the rules of this court; no good cause having been shown to the court why the same should not be dismissed." To this ruling an exception saved in bill of exceptions. Motion for reinstatement heard and denied March 14, 1898. Exception to order preserved in bill of exceptions. Plaintiff assigns error in above orders of March 9th and 14th.

1. A ruling upon the motion to strike the bill of exceptions is unnecessary. For the purpose hereof, it will be considered a part of the record. So assumed, the case for review is: The district court, after full hearing,--all parties in interest voluntarily present,--dismissed the above cause for lack of prosecution, under rule 18 of that court. A motion for reinstatement was thereafter entertained, and, after full hearing,--all parties in interest present,--was denied. Rule 18, not being preserved in the bill of exceptions, is not before us. Railroad Co. v. Haskins, 115 Ill. 300, 2 N.E. 654; Harrigan v. Turner, 53 Ill.App. 292; Anderson v. McCormick, 129 Ill. 308, 21 N.E. 803; 3 Enc.Pl. & Prac. 387. The facts upon which the court acted in ordering the dismissal are not before us, not being preserved by bill of exceptions. So with the facts upon which it acted in denying the reinstatement. A ruling upon the question whether written notice to plaintiff was required by the Code, of the court's action in calling this case upon its own motion under the rule, is not necessary, because, if such notice was necessary, it was waived by counsel for plaintiff voluntarily having the matter set when called, and appearing without objection on the day so set, and going into the trial of the question whether the case should be dismissed for lack of prosecution, under the rule. Taking such matter up without notice, if error, was but an irregularity, which could be waived. Greig v. Clement, 20 Colo. 167, 37 P. 960; Brown v. State, 8 Heisk. 871; Rich v. Starbuck, 45 Ind. 310. The case is reduced to this: A judgment of a court of general jurisdiction, having jurisdiction of the subject-matter and of the parties, and power to enter the judgment in question, is assailed for error. Wherein the error consists, we are not informed by the record. This judgment is presumed to have been regular in every respect unless the contrary appears in the record. Andrews v. Carlile, 20 Colo. 372, 38 P. 465; Martin v. Force, 3 Colo. 199.

The contention that the dismissal of this case without a verdict is obnoxious to section 2326, Rev.St. U.S., has been denied by our supreme court in Kirk v. Meldrum, 65 P. 633.

As the judgment below is presumed to have been regular in every respect, and as this presumption has not been overcome by the record, it will be affirmed. Affirmed.

On Rehearing.

(April 14, 1902.)

Since the filing of the petition for a rehearing, the original record, its abstract, and the elaborate briefs herein have been, with care, re-examined. After such reconsideration, we see no reason to change the conclusions reached in the former opinion. If it be conceded that the motion for a reinstatement of the case, heard and denied by the trial court March 14th, is a motion for a new trial, as contemplated by the Code of Civil Procedure (section 387) and perforce this section is in the record, without its inclusion in the bill of exceptions, which we do not hold, yet this does not bring rule 18 before us, or affect our former ruling. The motion states, as one of the grounds for the reinstatement asked, that rule 18, under which the order of dismissal was made, is in violation of our Civil Code and the Revised Statutes of the United States, and recites therein what the mover claims to be a copy of the rule. The mere recital in a motion for a new trial of fact as the ground of the motion is no evidence of the existence of the fact. The statement in this motion that it contains a copy of rule 18 is no evidence of the existence or contents of the rule. Suppose a motion for a new trial recited newly discovered evidence as a ground therefor, and stated what it claimed were facts showing such ground; would the mere inclusion of this motion in the record by section 387, supra, be any evidence of the existence of such facts? We think not, and the courts have so ruled. "There is no bill of exceptions showing that the court was requested to instruct in writing, and we cannot examine the question whether the instructions are or are not in writing. Recitals in a motion for a new trial cannot perform the office of a statement required to be incorporated in a bill of exceptions, nor can the recital of the clerk take the place of such a statement." Clouser v. Ruckman, 104 Ind. 588, 4 N.E. 202. "It is well settled that, unless objections to evidence are stated in the bill of exceptions, they cannot be considered on appeal. A party cannot, by statements made in his motion for a new trial, get evidence or objections stated to evidence into the record. The only way in which this can be done is by a bill of exceptions." Thomson v. Association, 103 Ind. 279, 2 N.E. 735. "A bill of exceptions was taken to the overruling of a motion for a new trial. The motion for a new trial is copied into this bill. The motion so copied alleges that certain instructions were given, but the effect of this bill is only that the motion was...