Dawson v. Eldredge
Decision Date | 15 September 1965 |
Docket Number | No. 9469,9469 |
Citation | 405 P.2d 754,89 Idaho 402 |
Parties | H. W. DAWSON, doing business as Nampa Lumber Co., Plaintiff-Appellant, v. Russell W. ELDREDGE and Erma Eldredge, husband and wife, Defendants-Respondents. |
Court | Idaho Supreme Court |
Earl E. Reed, Nampa, for appellant.
Davison, Davison & Copple, Boise, for respondents.
Dawson, appellant, institutes his second appeal in this action for a review of the trial court's determination on remand. The facts of this case are set forth in the first appeal, Dawson v. Eldredge, 84 Idaho 331, 372 P.2d 414 (1962). The original action was instituted for materials and services rendered in the building of a house for respondents, Russell and Erma Eldredge. Respondents contended that the obligation was under an oral contract for a fixed sum rather than for materials and labor as contended by appellant.
On appeal this court affirmed the judgment of the trial court that the contract was for a fixed sum but remanded the cause to the trial court to:
'* * * make findings more specific and detailed, and, if he deems it necessary to reopen the case for further evidence, to consider such additional evidence as may be necessary to enter such findings, in accordance with this opinion; to make determination of what items are covered by the appellant's lien; to fix an appropriate sum as attorneys fee; and to give judgment to appellant for the foreclosure thereof.' Dawson v. Eldredge, supra, at p. 341, 372 P.2d at p. 420.
The court also said:
'The failure of the court to make findings in such detail as to enable this court to determine just what items were chargeable or not, requires reversal of this cause with directions to the trial court to make findings more specific as to the items to be included or excluded from the account between the parties.' Dawson v. Eldredge, supra, at p. 341, 372 P.2d at p. 420.
Upon remand the trial court received additional evidence. Respondents admitted they should be charged for a heavier grade of shingles. The trial court found in addition that respondents were chargeable for certain changes in the kitchen. Costs on the first appeal wer awarded to appellant.
After determining the contract amount, the extras and offset of costs, a judgment was entered by the trial court in favor of appellant for $133.86. Dawson appeals from that judgment and seeks review, asserting eleven assignments of error by the trial court, generally classified as follows: (1) failure of the trial court on remand to determine those extras as ordered by this court; (2) failure of the trial court on remand to establish a lien in favor of the materialman in accordance with the direction of this court; (3) failure of the trial court on remand to establish appropriate attorney fees in the enforcement of appellant's lien; (4) failure of the trial court on remand to follow the instructions directed by this court on the first appeal; (5) refusal of the trial court to admit certain evidence.
The exhibits admitted into evidence at the first trial are not included in this record.
Appellant specifically assigns as error the trial court's refusal to allow in evidence the estimate of Mr. Kolbo, plaintiff's Exhibit 8. Mr. Kolbo is a licensed architect and was asked to testify relating to estimated costs of items identified by appellant as being extras. Appellant requested an opportunity to make an offer of proof by the witness Kolbo. The trial court then inquired of appellant's counsel:
'THE COURT: Mr. Reed, before I rule on your offer of proof, I want to ask you if the items that you asked this witness to testify to are the materials and the labor involved in this discussion of these items contained in Plaintiff's Exhibit #3?'
To this question appellant's attorney answered:
The trial court thereupon properly denied the offer of proof and refused to permit Kolbo to testify further.
Appellant also assigns error of the trial court in limiting proof of appellant Dawson pertaining to extras. In this connection it should be noted that appellant did not include plaintiff's Exhibit 3 in the praecipe, hence that exhibit is not before this court on appeal.
Appellant argues that payment of accounts by checks, which he had neither endorsed nor received the benefit thereof, should not have been charged against him. The trial court found that these checks were properly chargeable to appellant and were authorized by him or his agents. The trial court found that plaintiff's Exhibit 5 reflected that such charge was properly made. Plaintiff's Exhibit 5 is not included in the record on appeal.
Appellate Rules of the Supreme Court 25 and 36 and I.C. §§ 10-509 and 13-222 require an appellant to perfect his record for consideration by this court. I.C. § 10-509 reads as follows:
* * *
* * *
Rule 25, Appellate Rules of the Supreme Court, states the requirements for the record on appeal:
In neither section is the reporter or the clerk of the district court, in the absence of a request, required to include exhibits on an appeal. The praecipe and its contents are the responsibility of appellant. The items for the record on appeal are specified by the praecipe. The transcript on this appeal included the following excerpt from the praecipe:
'YOU ARE HEREBY REQUESTED to prepare for the purpose of said appeal, according to law and the rules of the Supreme Court of the State of Idaho, the required number of transcripts, consisting of judgment roll and all papers constituting the same and including, but not limited to, the following, to-wit:
* * *
* * *
'Please certify the same as provided by the Statutes of the State of Idaho and the rules of the Supreme Court of the State of Idaho.'
In Aker v. Aker, 52 Idaho 50, 11 P.2d 372 (1932), the court held that C.S. § 6886, now 10-509, contemplated that only those portions of the record necessary to the appeal should be brought up.
The propriety of admitting certain exhibits in the trial court cannot be determined on appeal when they have not been certified to the appellate court. It follows that the consideration of and weight attached to the exhibits by the trial court, once admitted, cannot be reviewed on appeal if they are...
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State v. Lopez
...statutes and rules in effect at all times relevant to this appeal were authoritatively construed to the contrary in Dawson v. Eldredge, 89 Idaho 402, 405 P.2d 754 (1965). There it was held that both the Appellate Rules of the Supreme Court and the pertinent statutes "require an appellant to......
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...responsibility to include exhibits and transcripts of hearings in the record before the appellate court. Id. (citing Dawson v. Eldredge, 89 Idaho 402, 405 P.2d 754 (1965)). When the record on appeal does not contain the evidence taken into account by the district court, "we must necessarily......
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