Lukich v. Utah Const. Co.

• Decision Date: 24 June 1915
• Docket Number: 2685
• Citation: 150 P. 298,46 Utah 317
• Court: Utah Supreme Court
• Parties: LUKICH v. UTAH CONST. CO

150 P. 298

46 Utah 317

LUKICH v. UTAH CONST. CO

No. 2685

Supreme Court of Utah

June 24, 1915

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Action by Niko Lukich against the Utah Construction Company.

Plaintiff was non-suited. He appeals.

APPEAL DISMISSED.

Weber &amp Olsen for appellant.

Howat Macmillan & Nebeker for respondent.

STRAUP C. J. McCARTY, J., FRICK, J., concurring.

OPINION

STRAUP, C. J.

Our statute permits an appeal from only a final judgment. It is the settled practice in this jurisdiction that an appeal does not lie from an order granting or overruling a motion for a nonsuit or new trial. Such rulings can only be reviewed on an appeal from the judgment. We are asked to dismiss this appeal on the ground that the record fails to show a judgment.

We have before us a bill of exceptions. It shows that the plaintiff the appellant, to support the issues in his behalf, adduced his evidence and rested. It then recites that the defendant interposed a motion for a nonsuit; that the jury were excused, and, after presentation and argument of the motion, were returned into court. Then:

"The Court: In this case the court sustains the motion for a nonsuit, and judgment for nonsuit may be granted."

It further recites:

"Whereupon the jury are, by the court, discharged from further consideration of the case."

The certificate recites:

"The above and foregoing contains all the evidence and testimony in the above-entitled cause and all the proceedings, all of the exceptions taken, and it is a full, true, and correct transcript of the testimony and other proceedings had on the trial of said cause, and the same is hereby allowed, settled, and signed by the court as and for the bill of exceptions herein."

It is thus seen that what is settled are trial proceedings, nothing more.

Attached to the transcript is what is denominated an "entered order." Omitting the title of the court and cause, it is:

"The attorneys for the respective parties and the jury heretofore impaneled and sworn to try the within case being now present and ready, the further trial of the case is resumed. The court having considered the defendant's motion for judgment of nonsuit and dismissal herein, and being fully advised in the premises, it is ordered that the said motion be, and it is, hereby sustained. It is ordered that jurors serving on the trial of the within case be, and they are, hereby discharged from further consideration of the case, and all jurors serving in this division of the court be, and they are, hereby excused to September 16, 1913, at the hour of ten o'clock a. m."

These are pointed to as constituting the judgment or recitals of it. The order is not a part of the judgment roll. Laws Utah 1911, c. 94. It is not contained in the bill, nor made a part of it, nor settled in the bill. It thus is neither part of the judgment roll nor of the bill. We therefore cannot notice it. All we have, then, is the bill. The recitals at most but show an order granting a nonsuit, or directing a judgment of nonsuit. It does not show a judgment, one in fact rendered or entered. From what is recited, it may be said the case was sent out of court. But that a judgment was in fact rendered or entered is left to argument and deduction. If a judgment was rendered and entered, it ought to appear by the court's record and the judgment book. The bill contains no such recitals; nor is such fact otherwise made to appear. It is generally admitted, but not always observed, that what ought to be of record must be proved by record and by the right record.

A judgment is the final determination of the rights of the parties. To ascertain what was in fact determined, recourse should be had, not to a bill of exceptions, but to the...