Farm Credit Corporation v. Mulliner

• Decision Date: 30 October 1929
• Docket Number: 5459
• Parties: FARM CREDIT CORPORATION, a Corporation, Respondent, v. ESTELLA S. MULLINER, as Administratrix of the Estate of OLOF MALMGREN, Deceased, Appellant
• Court: Idaho Supreme Court

281 P. 1113

48 Idaho 306

FARM CREDIT CORPORATION, a Corporation, Respondent, v. ESTELLA S. MULLINER, as Administratrix of the Estate of OLOF MALMGREN, Deceased, Appellant

No. 5459

Supreme Court of Idaho

October 30, 1929

APPEAL AND ERROR-TRANSCRIPT-NECESSITY OF CLERK'S CERTIFICATE.

1. Certificate of district court clerk that transcript contained full and true copies of certain enumerated papers held defective, and appeal dismissed for absence of certificate that papers in transcript constituted all the records papers, and files used or considered by judge on hearing, as required by C. S., secs. 7164, 7167.

2. On appeal from judgment of district court on appeal from probate court, certificate that papers sent up were those used by court below must be furnished, though there was no evidence taken, and hence no reporter's transcript or bill of exceptions, appeal being controlled by C. S., sec. 7164, not sec. 7152, subd. 1, and sec. 7163, relating to final judgment in action or special proceeding commenced in court wherein rendered.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Motion to dismiss appeal. Appeal dismissed.

Appeal dismissed.

A. A Merrill, E. M. Holden and Lewis A. Lee, for Appellant.

Alvin Denman, for Respondent.

BUDGE C. J. Givens, T. Bailey Lee and Varian, JJ., concur. Wm. E Lee, J., dissents.

OPINION

BUDGE, C. J.

This is an appeal from a judgment of the district court on appeal from the probate court. Motion to dismiss the appeal is made upon the ground "that the record on appeal has not been authenticated or identified by a bill of exceptions or in any manner or at all."

Under C. S., secs. 7164, 7167, providing, respectively:

"On appeal from a judgment rendered on an appeal, or from an order, except an order granting or refusing a new trial, the appellant must furnish the court with a copy of the notice of appeal, of the judgment or order appealed from, and of papers used on the hearing in the court below."

"The copies provided for in sections 7163, 7164 and 7165 must be certified to be correct by the clerk or the attorneys . . . ."

--it has been held repeatedly by this court that an appeal will be dismissed where the transcript does not contain any certificate that the papers therein constitute all the records, papers and files used or considered by the judge on the hearing. (Village of Sand Point v. Doyle, 9 Idaho 236, 74 P. 861; Glenn v. Aultman & Taylor M. Co., 30 Idaho 719, 167 P. 1163; Walsh v. Niess, 30 Idaho 325, 164 P. 528; Biwer v. Van Dorn, 32 Idaho 213, 179 P. 953; Hardy v. Butler, 39 Idaho 99, 226 P. 669; Muncey v. Security Ins. Co., 42 Idaho 782, 247 P. 785.)

The extent of compliance in the instant case with what is held to be necessary under the sections above quoted is a certificate of the clerk of the district court to the effect that "the within and foregoing (transcript) contains and consists of full, true and correct copies of" certain papers, enumerating them.

As applicable to such a situation it was said in Village of Sand Point v. Doyle, supra, although holding a bill of exceptions not to be necessary:

"The transcript in this case contains no certificate showing that the papers and records it contains were used by the judge upon the hearing, but merely contains a certificate from the clerk that they are true and correct copies of the papers it purports to contain as the same appear on file in his office. This certificate is good as far as it goes, but falls short of showing that the papers contained in the transcript were used by the district judge upon the hearing of the motion. Many other papers and documents might have been used for aught this record shows or many of the papers in this transcript may not have been presented to the judge at all. ...