Gamble v. Dunwell

• Decision Date: 01 January 1869
• Citation: 1 Idaho 268
• Parties: Godfrey Gamble, Respondent, v. Dunwell, Ankney Et Al., Appellants.
• Court: Idaho Supreme Court

1 Idaho 268

Godfrey Gamble, Respondent, v. Dunwell, Ankney Et Al., Appellants.

Supreme Court of Idaho

January 1, 1869

PRACTICE-APPEAL.-Upon an appeal from a judgment, without a statement or bill of exceptions, nothing can be considered but the judgment-roll.

FINDINGS OF COURT.-When a court fails to find upon a question, that question cannot be considered for the first time in this court, unless the finding is necessary to enable the court to render judgment.

IDEM.-Held that all questions put in issue and not found upon by the district court would have been found against the appellants or were deemed immaterial.

JURISDICTION-EQUITY.-The fact that the property is not within the jurisdiction of the court constitutes no bar in a court of equity, for a court of equity acts upon the person.

APPEAL from the First Judicial District, Nez Perce County.

J. B Rosborough, for the Appellants. Ainslie & Foote, for the Respondent.

KELLY, J.,

delivered the opinion,

BOWERS C. J., and MILLER, J., concurring.

This is an appeal brought from the first judicial district. The defendants had notice of the findings and judgment of the court below, but made no motion for a new trial. At the next term of the court they made an ineffectual effort to file a motion for a new trial, but the same was not allowed, and the case comes here on an appeal from the judgment of the court below, and nothing can be considered but the judgment-roll. It is an equity case brought for the foreclosure of a mortgage upon personal property. The complaint alleges that Dunwell mortgaged certain personal property, then being on the Nez Perce Indian Reservation, at a way-station known as the Twelve-mile House in Nez Perce county, Idaho territory. The complaint further charges that defendants, Nixon and the Ankneys, with the full knowledge of plaintiff's mortgage and his ownership in said property, and with intent to cheat and defraud plaintiff out of the same, conspired together, took and disposed of said property or a certain portion thereof, and hold or claim the residue thereof under a pretended sale from the defendant Nixon to the defendants Ankneys, and that said sale or pretended ownership of Nixon and the Ankneys is without any consideration whatever. The prayer of the complaint asks to have the defendants Nixon and the Ankneys account to the court for the property claimed by them, and all property that remains be sold, etc., in the usual form of the foreclosure of a mortgage.

The defendant Dunwell allows a default to be entered against him, and the defendants, Nixon and the Ankneys, answer, and admit the taking and conversion of all the property, but deny that the plaintiff had any mortgage or ownership in the property, or that they had any knowledge of the same, or that they committed any fraud; and for a further answer,

justify by saying that Dunwell and Nixon were partners, and owned said property as partnership property, and that the defendants Ankneys were creditors of said Dunwell and Nixon, and they bought said property of Nixon to pay said partnership debts. They make a further plea to the jurisdiction of the court, by saying...