Forsythe v. Richardson

• Decision Date: 01 January 1873
• Citation: 1 Idaho 459
• Parties: Joseph Forsythe, Respondent, v. David Richardson, Appellant.
• Court: Idaho Supreme Court

1 Idaho 459

Joseph Forsythe, Respondent, v. David Richardson, Appellant.

Supreme Court of Idaho

January 1, 1873

STATEMENT.-A statement made on a motion for a new trial may be considered on an appeal from the judgment, for the purpose of determining whether any errors in law were committed by the court below in the progress of the trial.

EXCEPTIONS-STATEMENT.-If it does not appear from the statement made on a motion for a new trial, that any exceptions were taken at the trial to any ruling of the court, the statement is useless on an appeal from the judgment.

TOWNSITE ACT-EQUITY-ACTION.-An action under the townsite act to settle the rights of parties to enter lots in such townsite assimilates more to a suit in equity to quiet title than to any other form of action.

DEFINITION-JUDGMENT.-Judgment is a general term for adjudications of a court, and, in its broadest sense, includes decrees.

PARTIES.-In an action to settle rights under the townsite act, the mayor of the city is not a necessary party.

PUBLIC LANDS-POSSESSION.-If the public lands of the United States are claimed by virtue of possession alone, the claimant is bound to take such precautionary steps as will advise all the world of his rights.

APPEAL from the District Court of the Second Judicial District, Ada County,

Milton Kelly, J. R. McBride, and Alanson Smith, for the Appellants.

On the question of occupancy, we cite the following authorities: 2 Bl. Com. 3; Id. 8; 2 Kent's Com. 318, 319, 325 347, 356. As to open and notorious possession by a pre-emption occupant, 4 Wall. 332. As to personal residence Barstow v. Newman et al., 34 Cal. 90. Prickett & Hasbrouck, for the Respondent.

The appeal from the order refusing a new trial having been dismissed or waived, we submit that the statement made upon that motion cannot be used upon the appeal from the judgment, except for the purpose of considering alleged errors of law occurring at the trial. (Casgrave v. Howland, 24 Cal. 457.) We do not claim that the statement should be entirely disregarded in every case like the present, but that it can only be used in reviewing the action of the court below so far as it relates to errors in law affecting the judgment, and which are assigned as reasons for a reversal or modification of the judgment, for upon an appeal from a judgment the supreme court will look at the evidence so far only as to see the relevancy of the exceptions taken during the trial. (Carpentier v. Williamson, 25 Cal. 154.)

The findings of the court cannot be reviewed on an appeal from a judgment. (Racouillat v. Rene, 32 Cal. 450; Gagliardo v. Hoberlin, 18 Cal. 394.) The appellate court will not review the facts of the case unless an assignment of error shows that the court below refused an application for a new trial made on the ground that the verdict or decision was contrary to evidence, and that only on appeal from the refusal to grant a new trial. (Smith v. Phelps, 2 Cal. 121; Griswold v. Sharpe, 2 Cal. 23; Whitman v. Sutter, 3 Cal. 179; Ingraham v. Gildermester, 2 Cal. 483; Brown v. Tolles, 7 Cal. 398; Reihn v. Bogardus, 13 Cal. 73; Liening v. Gould, 13 Cal. 598; Hihn v. Peck, 30 Cal. 280.)

The office of a statement is to bring into the record those matters only which arise during the trial, and constitute the basis of a motion, and a specification of the particular grounds of error is the essential element of a statement, and if no specifications are made, the statement will be disregarded. (Hutton v. Reed, 25 Cal. 483; Crowther v. Rowlandson, 27 Cal. 385; Moore v. Murdock, 26 Cal. 524; Love v. Sierra Nevada L. W. & M. Co., 32 Cal. 639, 91 Am. Dec. 602.) There being no errors, either of fact or in law, specified in the statement, this case is to be reviewed on the judgment-roll alone, in which there is no error. There were no exceptions taken during the trial.

The exceptions to the findings of fact are not properly before the court. They are not authorized by the statute. It is for defect in the findings only that an exception can be taken. (5th Session Laws, 75.)

WHITSON J.,

delivered the opinion.

HOLLISTER, J., concurred. NOGGLE, C. J., dissented.

In this case it is conceded that we can only consider the appeal taken from the final judgment-the appeal from the order overruling a new trial not having been taken in time. We have heretofore decided that we might consider the statement made on a motion for a new trial for the purpose of considering any errors alleged to have been committed by the court below in the progress of the trial, even though we might not be able to review the statement on the appeal from the order refusing a new trial. (Towdy v. Ellis, 22 Cal. 650.)

Upon an inspection of the statement, we fail to find that any exceptions were taken during the progress of the trial, to any ruling of the court; and, therefore, in this case, the statement becomes useless. We are consequently reduced to the consideration of the complaint, answer, and findings of the court, in order to determine whether or not they will support the judgment.

This suit was brought under the provisions of an act of the legislative assembly of the territory entitled "an act to provide for the disposal of lands in Boise county, Ada county, Idaho

territory, pursuant to the several acts of Congress in such cases made and provided. This case assimilates more to a suit in equity to quiet title, than to any other form of action either in law or equity. It is urged that the act above referred to requires the conflicting claims to be determined by a final judgment, and that the court decreed the property in question to the plaintiff. This is true, but the court did more; it "ordered, adjudged and decreed." Judgment is a general term, and may be applied to decrees. It being the more general term includes decrees as well; therefore, when the legislature used the term "final judgment," it must be taken in the broadest sense of that term.

It is urged that the mayor ought to have been made a party. We think not, because the law requires that he should receive a certified copy of the judgment, upon which he should execute the deed. This provision was evidently made upon the hypothesis that the mayor would be a stranger to the proceedings in court, and could be informed of the result of the determination only in the manner provided. Even if it be necessary that the mayor be made a party, no question of that kind was raised in the court below, either by demurrer or answer, and it is too late to raise that point here for the first time. The remaining objection to this judgment is, that...