Ensign v. Koyk

• Decision Date: 28 October 1926
• Docket Number: Civil 2500
• Parties: O. A. ENSIGN, Appellant, v. GEORGE R. KOYK, Appellee
• Court: Arizona Supreme Court

250 P. 246

31 Ariz. 1

O. A. ENSIGN, Appellant, v. GEORGE R. KOYK, Appellee

Civil No. 2500

Supreme Court of Arizona

October 28, 1926

APPEAL from a judgment of the Superior Court of the County of Yavapai. John J. Sweeney, Judge. Affirmed.

Mr. A L. Hammond, for Appellant.

Messrs Kibbey, Bennett, Gust, Smith & Lyman, for Appellee.

OPINION

ROSS, J.

This is an action of replevin, in which Koyk, as plaintiff, sought to recover from defendant, Ensign, an air-compressor and equipment. The complaint is the ordinary one in replevin. Defendant's answer is a general denial. The case was tried before the court without a jury. The court made written findings of fact and conclusions of law separately, as required by the statute. Paragraph 528, Civil Code 1913. These were favorable to plaintiff's cause, and upon them judgment was entered for plaintiff.

An inspection of the record discloses that the principal issue at the trial was as to whether the air-compressor was personal or real property. If we adhere to the findings of fact and conclusions of law of the trial court, that is the end of it; but defendant claims in his assignments these are not supported by the evidence.

The reporter's transcript of the oral testimony was not made a part of the record, and no exhibits were sent up. The defendant has undertaken to supply these by substituting in their place what he has styled "Statement of Facts Settled by Court, Including Settlement by Court." This paper is not here, "as the papers or portions of the record to be transmitted to the Supreme Court," upon stipulation of the parties, as provided in paragraph 1256 Civil Code. It is not a "statement of the case and the proceedings therein," agreed to by the parties and approved and signed by the judge, as provided for in paragraph 1257. It is an ex parte statement, signed by defendant's attorney and "approved and settled" by the judge who tried the case. On its face it recites that it is only "a substantial statement of the facts as shown by the evidence introduced at the trial of said cause."

What the attorney for defendant might select from the whole evidence, as constituting a "substantial statement of the facts," it is most likely would not receive the approval of his opponent. A vital item of evidence might strike him as unimportant, and he would omit it from the statement. If the case is to be heard in this court on a portion of the record, the parties must stipulate the portion (paragraph 1256, supra), or if upon a statement of facts, they must agree upon such facts, which agreement must be approved by the judge who tried the case (paragraph 1257, supra).

What purports to be the facts was not settled or agreed upon or approved as the law contemplates, and does not pretend to be all the facts, but only "a substantial statement" thereof. An examination of such "statement" shows that it contains only excerpts from the exhibits and the testimony of witnesses. It does not pretend to give all of the oral evidence, nor all of the written or documentary evidence. Witnesses testified, no part of whose testimony is set out.

One of the court's findings is that the conditional sales or lease contract of the air-compressor, in which the seller retained title until it was paid for, "was duly recorded on March 18, 1920, in the office of the county recorder of Yavapai county, Arizona"; but there is an entire absence of any evidence in the "statement" that such instrument was ever placed of record.

Another finding is, in effect, that the seller (Chicago Pneumatic Tool Company) sold the air-compressor to the Tiptop Mining Company, and that the Tiptop Mining Company placed it upon mining claims of which it was the lessee. In the so-called "statement" there is no evidence that the Tiptop Mining Company ever had a lease of the mining claims upon which the air-compressor was installed, or that it ever installed such machinery thereon.

We cite discrepancies between the court's findings and the "substantial statement of facts," to show that the latter must be only a partial statement of the evidence. We think, before we would be justified in setting aside the court's findings and judgment for want of evidence to support them, we should be furnished, in legal and authentic form, all of the evidence submitted to and considered by the court in arriving at its conclusions. If all the evidence is not before us, we will presume that it was sufficient to support the findings and the judgment. This has been the rule in this jurisdiction, and we think it is the rule generally. Wooster v. Scorse, 16 Ariz. 11, 140 P. 819.

Turning to the merits of the case, we think, considering the findings of fact and the so-called statement of facts together, this is about what happened: The Tiptop Mining Company was the lessee of some patented mining claims; in 1920 it bought of...