Hecla Gold-Mining Co. v. Gisborn

• Decision Date: 02 January 1900
• Court: Utah Supreme Court
• Parties: THE HECLA GOLD MINING CO., A CORPORATION, RESPONDENT, v. M. T. GISBORN, APPELLANT

59 P. 518

21 Utah 68

THE HECLA GOLD MINING CO., A CORPORATION, RESPONDENT, v. M. T. GISBORN, APPELLANT

Supreme Court of Utah

January 2, 1900

Petition for rehearing denied April 17, 1900.

Appeal from the Third District Court, Salt Lake County, Hon. E. V. Higgins, Judge.

Action to recover for certain water sold and delivered in Tooele County. From a judgment for plaintiff defendant appealed.

Affirmed.

E. D Hoge, Esq., for appellant.

We claim that the court had no jurisdiction in this case, the contract having been made and reduced to writing in Tooele County, where the property was situated affected by the contract, and where it was to be carried out, and where the breach took place, if breach there was. Tooele County was the place where the cause of action arose. Haskins v Dern, 56 P. 953; Griffin v. Bristle, 40 N.W. 523, and cases therein cited, page 534.

The motion for a non-suit should have been granted for the reason there was an entire failure of proof to sustain the allegations of the complaint, or the contract set up therein. The testimony for plaintiff, when it is all considered, both written and unwritten, proves a radically different contract than the one sued on. There is a fatal variance. Peay v. Salt Lake City, 11 Utah 331.

Conflict of evidence must be a substantial one. Castle Lake Ice Co. v. McConly, 17 P. 924; Rankin v. Thompson et al., 3 P. (Col.), 719.

This same doctrine that there is no substantial conflict in the testimony the findings will set aside is to be found in the case of Chamberlin v. Raymond, 3 Utah 117; S.C., 1 P. 850.

S. P. Armstrong, Esq., for respondent.

The appeal should be dismissed.

The bill of exceptions does not preserve any motion for new trial or order overruling the same. The only attempt to bring such ruling to the notice of this court is in the minutes of the clerk certified in the transcript. But the minutes of the court are no part of the record on appeal. Rev. Stat., Sec. 3302; Evans v. Jones, 10 Utah 183; Dowley v. Hovious, 23 Cal. 103; Harper v. Hines, 27 Cal. 107-10; Mendocino Co. v. Morris, 32 Cal. 145-50; People v. Empire M. Co., 33 Cal. 171-73; Clark v. Kane, 37 Mo.App. 258.

The action was properly brought in Salt Lake County.

"The cause of action arises when and where the last fact essential to it occurred, and not until then." Mosby v. Gisborn, 54 P. (Utah), 126.

The action should be tried where the demand and refusal occurred. Condon v. Leipsiger, 17 Utah 498; Overland M. Co. v. McMaster, 19 Utah 177; Laughlin v. Main, 63 Iowa 580-1; Suspender Co. v. Van Borries, 91 Ala. 507; Ry. Co. v. Amos, 54 Ark. 159.

Neither party moved for a continuance, hence there was no error in proceeding to trial.

The court properly refused to grant a non-suit. Hertzog v. id., 29 Pa. 467.

Evidence of an express agreement will sustain an allegation on an implied agreement. Ludlow v. Dole, 62 N.Y. 617; Ashton v. Shepherd, 120 Ind. 69-72; and vice versa. Smith v. Lippincott, 49 Barb., 398; Sussdorf v. Schmidt, 55 N.Y. 319-24.

No variance is deemed material unless it has misled the party to his disadvantage. Rev. Stat., Sec. 3001; Mining Co. v. Mining Co., 5 Utah 1-48; Holman v. Pleasant Grove, 8 Utah 82; Culmer v. Clift, 14 Utah 286-9.

And no amendment of the complaint is necessary unless it is shown to "the satisfaction of the court" that the party has been misled. Place v. Muster, 6 N.Y., 89-99; Reddick v. Kessling, 129 Ind. 128-33; Furley v. Eller, 29 Ind. 322-5; Wells v. Sharp, 57 Mo. 56; Boynton v. id., 45 How. Pr., 380; Blackman v. Wheaton, 13 Minn. 326-32; Sussdorf v. Schmidt, supra.

This court will not examine the records to see whether the evidence sustains the findings. Walley v. Deseret Bank, 14 Utah 313; Nelson v. Rapid Transit, 10 Utah 196-9.

Appellant, to maintain his position, must not only show that there is no evidence in the record to support the findings, but he must also show clearly and affirmatively that the record contains all the evidence which was before the trial court. Warner v. Accident Ass'n, 8 Utah 431; Aldridge v. id., 120 N.Y. 614-6; Suspender Co. v. Van Borries, supra: Ry. Co. v. Amos, supra.

There is nothing before this court on the question of motion for new trial.

"The affidavit upon which the motion seems to have been based was not identified by the court as having been used on the hearing, and it is not embodied in any statement or bill of exceptions," therefore will be disregarded by this court on appeal. Perego v. Dodge, 9 Utah 6; U.S. v. Duggins, 11 Utah 430; Nelson v. Brixen, 7 Utah 454; Bagnall v. Roach, 76 Cal. 106; Stewart v. Cattle Co., 128 U.S. 383-90; 2 Ency. Pl. and Pr., p. 270, par. 5.

HART, Dist. J. BARTCH, C. J., and MINER, J., concur.

OPINION

HART, Dist. J.

This action was brought in Salt Lake County to recover for certain water in Tooele County, alleged to have been sold and delivered to defendant. The case was tried by the court without a jury on April 23, 1898, and a judgment entered for plaintiff for the sum of $ 360 and costs. The first error assigned by the defendant in his appeal to this court is that the trial court had no jurisdiction to try the case. The court below, in some three findings, decides that the defendant agreed to pay the plaintiff said sum of $ 360, at Salt Lake City, Salt Lake County, Utah. The written agreement, or memorandum of agreement, in evidence, does not specify the place of payment, but plaintiff did not rely upon this writing as the agreement, but relied upon an oral agreement, the principal terms of which were embodied in the writing. While there is some controversy as to whether the contract was entered into in Salt Lake County or Tooele County, there is evidence that the contract was made at Salt Lake County, where the parties resided, and that the payment was to be made at that place according to the terms of the contract, and that demand was made and refusal given at Salt Lake County. Under the decisions of this court, although the agreement was entered into in Tooele County for the sale and delivery of water in that county, yet if the purchase price was payable, under the terms of the contract, in Salt Lake County, and the demand and refusal there made and given, the latter county is the one in which the cause of action arose and in which the suit should be commenced. Konold v. Railway Co., 16 Utah 151, 51 P. 256; Deseret Irr. Co. v. McIntyre, 16 Utah 398, 52 P. 628; Brown v. Bach, 17 Utah 435, 53 P. 991; Condon v. Leipsiger, 17 Utah 498, 55 P. 82; Overland Gold Min. Co. v. McMaster 19 Utah 177; 56 P. 977; Mosby v. Gisborn, 17 Utah 257, 54 P. 121.

Besides, the contention of the defense that the findings of the court are not sustained by the evidence can not be considered, for the reason that the bill of exceptions does not purport to give all the evidence before the trial court upon the points in dispute. Where the bill of exceptions does not purport to set forth the substance of all the evidence adduced at the trial upon the points in issue, it will be presumed upon appeal that there was sufficient proof to support the findings and decision of the trial court. Cochrane v. Bussche , 7 Utah 233, 26 P. 294; Warner v. Accident Ass'n, 8 Utah 431, 32 P. 696; Railway Co. v. Amos, 54 Ark. 158, 15 S.W. 192; Laughlin v. Main, 63 Iowa 580, 19 N.W. 6731; Beatty v. O'Connor, 106 Ind. 81, 5 N.E. 880; Thompson v. Winnebago Co., 48 Iowa 155; Antisdel v. C. & N.W. Ry. Co., 26 Wis. 145; Aldridge v. Alridge, 120 N.Y. 614, 24 N.E. 1022; Shugart v. Miles, 125 Ind. 445, 25 N.E. 551; Evansville S. & N. Ry. Co. v. Lavender, (Ind.) 7 Ind.App. 655, 34 N.E. 109; Southern Suspender Co. v. Von Borries, 91 Ala. 507, 8 So. 367.

Other assignments of error are that the trial court erred in not granting a continuance to the defendant, and in not granting defendant's motion for a new trial. Neither of these objections can properly be passed upon here. The bill of exceptions does not contain the affidavits for continuance, nor are the same identified by the court as having been used upon the motion for continuance. The affidavits and orders upon the motion for new trial are not embodied in the bill of exceptions. The only identification of the affidavits is the certificate of the clerk. The ruling of the court on the motion for new trial is not embodied in the bill of exceptions. It is attempted to be brought to the notice of this court upon the clerk's certificate of the minutes of the court.

Sec. 3302, Rev. Stat. Utah 1898, enacts that "the judgment roll and bill of exceptions, if there be one, shall constitute the record on appeal to the Supreme Court."

It does not appear that the order overruling defendant's motion for a new trial would become a part of the judgment roll as defined by Sec. 3197, Rev. Stat., 1898. Unless the record affirmatively shows that the order denying the motion for a new trial was made in the absence of the defendant, or under such other circumstances that it would be deemed excepted to under Sec. 3283, Rev. Stat., 1898, the ruling should be preserved in the bill of exceptions in order to be considered by this court. A certified copy of a minute entry in the record by the clerk of such an order is not of itself sufficient. Reever v. White, 8 Utah 188, 30 P. 685; Lowell v. Parkinson, 4 Utah 64, 6 P. 58; Evans v. Jones, 10 Utah 182, 37 P 262; Perego v. Dodge, 9 Utah 3, 33 P. 221, and cases cited; U.S. v. Duggins , 11 Utah 430, 40 P. 707; Nelson v. Brixen, 7 Utah 454, 27 P. 578; Anderson Pressed Brick Co. v. Dubois, 10 Utah 60, 37 P. 90; Ingerman v. Moore, 90 Cal. 410, 27 P. 306; Gila R. I. Co. v. Wolfley (Ariz.), 3 Ariz. 176, 24 P. 257; Harris v. People, 130 Ill. 457, 22 N.E. 826; Wilson v. Nilson, 44 Ill.App. 209; State v. Harvey, 105 Mo. 316, 16...