Lowell v. Parkinson

• Decision Date: 02 March 1885
• Citation: 4 Utah 64,6 P. 58
• Court: Utah Supreme Court
• Parties: JOHN W. LOWELL, RESPONDENT, v. J. T. PARKINSON and WILLIAM HYNDMAN, APPELLANT

6 P. 58

4 Utah 64

JOHN W. LOWELL, RESPONDENT, v. J. T. PARKINSON and WILLIAM HYNDMAN, APPELLANT

Supreme Court of Utah

March 2, 1885

APPEAL from a judgment of the district court of the third district.

The facts are stated in the opinion.

Judgment reversed, and a new trial ordered.

Mr John R. McBride and Mr. Frank Hoffman, for appellants.

What will this court consider on an appeal from the judgment without a statement?

In California the court only looks at the judgment roll, but a comparison of the California statute and ours shows them to be different.

It is only when there is a statement that the judgment roll comes up on an appeal from the judgment. Compiled Laws § 1560.

Sections 1561 and 1562 of the Comp. Laws in connection with section 1553 give the right to an appeal from a final judgment, and on such appeal the court will review any intermediate order involving the merits.

The object of a statement is not to bring into the record matters already of record in the court below: Tendy v. Ellis 22 Cal. 658; Carpenter v. Williamson, 25 Cal. 167.

As the statute gives the right to appeal from the judgment and on such appeal allows a review of intermediate orders affecting it, the transcript on such appeal, must, by force of that provision, consist of whatever is of record in the court below, or has been brought into the record by a statement. The "record" of a court is every proceeding in the progress of an action which the law requires to be preserved in writing. Boux. L. Dict. Titles Issue Roll. Judgment Rolls, McClelland v. Dickenson, 2 Utah 100.

Messrs Hoge & Burmester, for the respondent.

EMERSON J. ZANE, C. J., and TWISS, J., concurred.

OPINION

EMERSON, J.:

Plaintiff had judgment in the court below, and defendants appealed from this judgment. There is no statement on appeal, nor any bill of exceptions settled at the trial, so as to become a part of the judgment roll. The appellant has brought together, and had printed a number of orders, made by the court during the progress of the case, and among them orders striking out portions of the answer, and refusing to strike out portions of the complaint, and which he alleges as errors, for which this court will reverse the judgment.

We cannot review these orders, because they are not made a part of the judgment roll by a statement or any bill of exceptions.

The appellant claims, however, that because the clerk has certified that these various orders appear among the files, or on the minutes of the court, that they are part of the record, and are properly here, and can be reviewed by this court, and that he was not bound to furnish a statement in order to bring them into the judgment roll, or make them a part of the record to be reviewed by this court.

Section 334 of the Practice Act, as it stood at the time this appeal was taken, provided that "a copy of the statement shall be annexed to a copy of the judgment roll, if the appeal be from a judgment; if the appeal be from an order, to a copy of such order," and section 338 of the same act provided that "on an appeal from a final judgment, the appellant shall furnish the court with a transcript of the notice of appeal, and the statement, if there be one," etc.

Unless this last section be interpreted to mean that the court shall be furnished with a transcript of the judgment roll, as well as with the notice of appeal, the requirement is unmeaning, and there would be no way to get the judgment roll before the appellate court. This is the interpretation which has been...