Goodman v. Minear Mining And Milling Co

• Decision Date: 01 January 1867
• Citation: 1 Idaho 131
• Parties: Goodman Et Al., Respondents, v. Minear Mining And Milling Co., Appellants.
• Court: Idaho Supreme Court

1 Idaho 131

Goodman Et Al., Respondents, v. Minear Mining And Milling Co., Appellants.

Supreme Court of Idaho

January 1, 1867

PRACTICE-EXCEPTIONS-DISMISSAL OF APPEAL.-Where no exceptions are taken in the court below to an order of that court denying a motion to open a default and set aside a judgment, an appeal fro such order will be dismissed.

PRESUMPTION.-An appellate court will not presume error in the court below and thus throw the onus on the respondent of establishing its correctness. "All intendments must be in favor of sustaining the judgments of courts of original jurisdiction and to disturb such judgment it is not sufficient that error may have inyrtbrnrf, but it must be affirmatively shown by the record."

PRACTICE-AFFIDAVITS-CERTIFICATE.-Affidavits used on motions which are incorporated into a transcript on appeal must have the certificate of the judge or the clerk that they were the affidavits used on the hearing on the motion.

APPEAL from the Third Judicial District, Owyhee County. Judgment by default against the defendant, a mining corporation. Subsequently, the defendant moved to "set aside the default and judgment," which motion was denied by the court. To this ruling the defendant took no exception "at the time," but gave verbal notice in open court that it "would appeal said cause," and asked a stay of proceedings for five days, which was granted. There is copied into the record quite a number of affidavits, but there is no certificate of the judge or clerk that they were the affidavits used on the hearing on the motion. The clerk certifies at the close of the transcript "that the foregoing is a true and correct copy of the original notice and motion to set aside judgment," and also a true copy of affidavits of certain persons whose names are enumerated in the record entry, and some other papers and their ends.

Martin & Johnson, for the Defendants. Huggan & Ganahl, for the Respondents.

To the affidavits there is no certificate of the clerk or judge that they were the affidavits used on the hearing of the motion. The appeal in this case is either from the judgment or from the order refusing to set aside the same, or from both. If from the judgment alone, a copy of the judgment-roll should have been sent up with the transcript. This not having been done, the appeal should be dismissed. (Laws of Idaho, sec 294, p. 142; Hart v. Plume, 14 Cal. 148.) If the appeal is taken from the order alone, the appeal should be dismissed:

1. Because no exception was taken to the order of the court overruling the motion to vacate the judgment. The mere no-

tice of appeal in open court means nothing, say the supreme court of California. No exception having been taken to the ruling of the court as before stated, the action of the lower court in this respect cannot be reviewed on appeal. (Smith v. Curtis, 7 Cal. 584.)

2. Because there is no certificate of the clerk or judge that the affidavits embraced in the transcript were those upon which the motion to vacate the judgment was heard and upon which the order was based. "On an appeal from an order made on affidavits no statement is necessary. The affidavits must be annexed to the order, and the clerk should specify the affidavits used; and to do so he must at the time mark them as filed on the motion." (Paine v. Linhill, 10 Cal. 370; see, also, Stone v. Stone, 17 Cal. 513.) If the appeal be from both the judgment and the order, the same will equally apply.

McBRIDE, C. J.,

delivered the opinion of the court,

CUMMINS, J., concurring.

This appeal is taken from the ruling of the court below on a motion made by defendant to set aside a judgment obtained by default in favor of plaintiffs, which judgment appears to have been for the sum of four hundred and seventy dollars and eighty cents and costs, as set forth in the notice of appeal.

It does not appear that any exception was taken to the ruling of the court on the motion, and as the whole ground of the appeal is upon that ruling, under the rule announced in the case of Lamkin v. Sterling, ante, p. 120, at this term, the appeal must be dismissed. We may add to the authorities mentioned in that decision, the case of Smith v. Curtis, 7 Cal. 584.

Appeal dismissed, and the judgment below affirmed. CUMMINS, J.,

delivered the opinion of the court on the petition for rehearing,

McBRIDE C. J., concurring.

The appellant petitions for a...