Crooks v. Harmon

• Decision Date: 26 May 1905
• Docket Number: 1588
• Citation: 29 Utah 304,81 P. 95
• Court: Utah Supreme Court
• Parties: CROOKS v. HARMON et al

81 P. 95

29 Utah 304

CROOKS v. HARMON et al

No. 1588

Supreme Court of Utah

May 26, 1905

APPEAL from District Court, Utah County; Jno. E. Booth, Judge.

Suit by Thomas Crooks against Thomas Harmon and another. From a judgment in favor of plaintiff, defendants appeal.

AFFIRMED.

J. W N. Whitecotton for appellants.

M. M Warner and D. D. Houtz for respondent.

BARTCH C. J. McCARTY and STRAUP, JJ., concur.

OPINION

BARTCH, C. J.

The plaintiff brought this action to enjoin the defendants from selling certain real estate. He alleges that he is the owner of the property, and that the defendants, who are sheriff and deputy sheriff, respectively, are about to sell it under an execution issued upon a judgment in favor of D. N. Adamson and against William Crooks, James Crooks, and W. W. Mathews. The answer denies that the plaintiff is the owner of the property, and alleges that the real owner of it is James Crooks, one of the judgment debtors, and that the property was being sold in satisfaction of the judgment. At the trial the court found the issues in favor of the plaintiff, and entered a decree enjoining the defendants from selling the property. This appeal is from the judgment.

The appellants have made four assignments of error, and the first reads:

"The court erred in rendering judgment in favor of plaintiff and against the defendants because the testimony in the case is insufficient to show that the plaintiff is the owner of the land in controversy, or any part of it; but, on the contrary, the testimony shows that the pretended conveyance from James Crooks to the plaintiff was merely for the purpose of defrauding the judgment creditor of James Crooks, to wit, D. N. Adamson, and that such purpose was shared by the plaintiff herein and the said pretended grantor."

The other assignments are in substantially the same form and of like character. The respondent insists that none of them can be considered by this court, because, as is urged, no objection or exemption has been presented by the appellants in such manner as to raise any question for determination.

Upon careful examination of the bill of exceptions and the assignments of error, we are of the opinion that the contention of the respondent is sound. It will be noticed from the assignment above quoted that the appellants claim that the court erred in rendering judgment in favor of the plaintiff, because the testimony is not sufficient to show that he is the owner of the land in dispute, etc.; but there is no claim that the evidence is insufficient to show the things to which the findings refer, and the bill of exceptions does not purport to contain all the evidence but simply all the testimony; and yet, where a finding or a decision is challenged on appeal, as we may assume, for the purpose of this argument, was the attempt here, upon the ground that the evidence is insufficient to support such finding or decision, it must affirmatively appear from the bill that it contains all the evidence, else the appellate court may indulge the presumption that there was other sufficient evidence, not contained in the bill of exceptions. This bill, only purporting to contain all the testimony, is therefore defective, because the words "testimony" and "evidence" are not synonymous terms. Testimony is evidence, but evidence may or may not be testimony, or may consist of more than testimony. The word "testimony" is a restricted, limited term, consisting only of the statements of witnesses, while the word "evidence" is a comprehensive term, embracing not only testimony, or the statements of witnesses, but also documents, written instruments, admissions of parties and whatever may be submitted to a court or jury to elucidate an issue or prove a case. Bouvier defines "testimony": "The statement made by a witness under oath or affirmation." Black defines "testimony": "Any species of proof or probative matter legally presented at the trial of an issue by the act of the parties, and through the medium of witnesses, records, documents, concrete objects, etc., for the purpose of inducing belief in the minds of the court or jury as to their contention." It seems thus apparent that "testimony" is not the proper word to be employed in a bill of exceptions to show that the bill contains all the evidence, and to warrant an assignment of error that the evidence is insufficient to support a decision. In Lindley v. Dakin, 13 Ind. 388, Mr. Justice Perkins said:

"It is said the judgment is wrong upon the evidence. But the record does not purport to bring the evidence in the cause before this court. It states that all the testimony is embodied in it. Testimony is not synonymous with evidence. It is but a species, a class, or kind of evidence. Testimony is the evidence given by witnesses. Evidence is whatever may be given to the jury as tending to prove a case. It

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