Crowley v. Croesus Gold & Copper Min. Co.
Decision Date | 06 July 1906 |
Citation | 12 Idaho 530,86 P. 536 |
Parties | JOHN CROWLEY, Respondent, v. CROESUS GOLD AND COPPER MINING COMPANY, Appellant |
Court | Idaho Supreme Court |
MOTION TO STRIKE FROM RECORD-INSTRUCTIONS-AFFIDAVITS-MOTION TO SUPPLY RECORD WITH CERTIFICATE OF CLERK-OBJECTION TO COMPLAINT THAT IT DOES NOT STATE CAUSE OF ACTION.
1. The instructions given on the trial can only be reviewed in this court when they are saved by bill of exceptions, they being no part of the judgment-roll.
2. Affidavits purporting to show errors committed in impaneling the jury are no part of the judgment-roll, and can only be reviewed when saved by bill of exceptions.
3. The certificate of the clerk of the district court that certain affidavits were used on the application for a new trial, and that they were all the affidavits used, is not sufficient to authorize this court to consider such affidavits. Such certificate must be made by the trial judge or in an authenticated record certified by the judge showing what papers were used on such application for new trial.
4. A certificate by the trial judge that "I have this day settled the within statement in the manner marked by me in pencil, allowing the proposed amendments where so marked and disallowing them where so marked," is not sufficient to authorize this court to consider the statement on appeal, as it is not known that such certificate was made after the statement was engrossed.
5. An objection that the complaint does not state a cause of action first made in this court will not warrant the court in granting a new trial where it is shown that the complaint even though in artistically drawn, states that the injury complained of resulted from the careless and negligent construction and operation of appellant's machinery and appliances used in appellant's mine, and further calls attention to the particular portion of such appliances that were defective.
(Syllabus by the court.)
APPEAL from the District Court of the Fourth Judicial District for Blaine County. Hon. Lyttleton Price, Judge.
Respondent commenced his action for damages for personal injuries sustained while at work in appellant's mine. Judgment for plaintiff, from which and an order overruling a motion for a new trial, the appeal is taken. Affirmed.
Judgment affirmed. Costs awarded to respondent.
McFadden & Broadhead, for Appellant.
A complaint in which a cause of action is stated for the recovery of damages for personal injuries should contain and state with precision an allegation or statement of the facts and circumstances from which it is shown that the defendant owed a legal duty to the plaintiff. An allegation of a duty standing alone is insufficient. (Chicago etc. R. Co. v Clausen, 173 Ill. 100, 50 N.E. 680; Gibson v Leonard, 37 Ill.App. 244, 349; Angus v. Lee, 40 Ill.App. 304.)
The pleader must state facts from which the law will raise a duty and show an omission of duty and resulting injury. (Taylor v. Felsing, 164 Ill. 331, 45 N.E. 161.)
A declaration for wrongfully and negligently injuring or killing another, without stating the facts constituting the negligence, ought to be held insufficient. (Cotton Oil Co. v. Shamblin, 101 Tenn. 263, 47 S.W. 496; Chicago etc. R. Co. v. Harwood, 90 Ill. 425.)
S. B. Kingsbury and A. A. Fraser, for Respondent.
The affidavits in the transcript, not being a part of the judgment-roll, nor incorporated into any bill of exceptions, should be stricken from said transcript. (State v. Larkins, 5 Idaho 200, 47 P. 945; Rich v. French, 3 Idaho 727, 35 P. 173; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Fish v. Benson, 71 Cal. 431, 12 P. 454.)
On appeal from order heard upon affidavits the only proper mode of authenticating such affidavits on appeal to this court is by bill of exceptions. (Somers v. Somers, 81 Cal. 608, 22 P. 967.)
The instructions set out in the transcript should be stricken out, as they are not embodied in a bill of exceptions and are not part of the judgment-roll. (Rev. Stats. 1887, sec. 4456.)
The purported bill of exceptions in this case, or statement on motion for a new trial, should be stricken from said transcript, as said statement is not properly authenticated by the trial judge, and the record shows that said statement or bill of exceptions was not authenticated by the judge after being engrossed, as required by law and the practice of this court. It is the duty of the appellant to furnish the supreme court a complete, clean, properly arranged and properly authenticated transcript. (Kimble v. Semple, 31 Cal. 657; Thompson v. Patterson, 54 Cal. 547; Cosgrove v. Johnson, 30 Cal. 509.)
The proper practice is to engross a statement and have the authentication of the judge indorsed on engrossed statement. (Pence v. Lemp, 4 Idaho 526, 43 P. 75; Hattabaugh v. Volmer, 5 Idaho 23, 46 P. 831.)
The statement on motion for a new trial and amendments, as allowed by the court, must be engrossed into one, and authenticated by signature of the judge in order to be regarded as the statement required by law and to be considered on appeal. (Smith v. Davis, 55 Cal. 26; Sawyer v. Sargent, 65 Cal. 260, 3 P. 872.)
Clerk's certificate that statement is the same which was used on motion for a new trial is entitled to no weight, as the clerk is not authorized to verify a statement in that form. (Fee v. Starr, 13 Cal. 170; People v. Bartlett, 40 Cal. 142.)
This appeal is from the district court of Blaine county. Respondent as plaintiff commenced his action in that court, alleging that he had been damaged in the sum of $ 5,000, by reason of certain injuries sustained by him while working in the mine of defendant--appellant.
The first allegation is that defendant is a corporation organized and existing under and by virtue of the laws of the state of Wyoming, and is engaged in the business of mining in Blaine county, Idaho.
The second allegation is that defendant is the owner and operator of that certain mining property called the "Croesus Mine."
Allegations numbered 3, 4 and 5 are as follows:
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