Lyons v. Lambrix

• Decision Date: 27 May 1920
• Citation: 33 Idaho 99,190 P. 356
• Parties: BARBARA FRANCES LYONS, Respondent, v. GEORGE A. LAMBRIX, Administrator of the Estate of JOSEPHINE LAMBRIX, Deceased, Appellant
• Court: Idaho Supreme Court

190 P. 356

33 Idaho 99

BARBARA FRANCES LYONS, Respondent, v. GEORGE A. LAMBRIX, Administrator of the Estate of JOSEPHINE LAMBRIX, Deceased, Appellant

Supreme Court of Idaho

May 27, 1920

APPEAL AND ERROR-CERTIFICATE AS TO PAPERS USED ON HEARING OF MOTION-INSTRUCTIONS-EVIDENCE.

1. If the transcript does not contain a certificate showing what papers were submitted to the judge and by him used on the hearing of a motion for a new trial, or other contested motion, the order disposing of the same cannot be reviewed.

2. All the instructions given must be read and considered together in order to determine whether or not the charge correctly states the law applicable to the facts of the case.

3. If there is substantial evidence sustaining the verdict, it will not be disturbed on appeal because of conflict.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Charles P. McCarthy, Judge.

Action to recover for services rendered. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs awarded to respondent.

T. S Risser, for Appellant.

The instructions given by the court and the requested instructions also given by the court could not be read and considered together as a whole; they could not reasonably and fairly be harmonized, for the reason that they were inconsistent and contradicted each other, and therefore it was error for the court to give them. (Tarr v. Oregon Short Line R. Co., 14 Idaho 192, 125 Am. St. 151, 93 P 957.)

Laurel E. Elam and Ross W. Bates, for Respondent.

Verdict of jury will not be set aside where there is any substantial evidence to support the verdict or where there is a conflict in the evidence. (Casady v. Stuart, 29 Idaho 714 161 P. 1026; State v. Bouchard, 27 Idaho 500, 149 P. 464; Tilden v. Hubbard, 25 Idaho 677, 138 P. 1133; Montgomery v. Gray, 26 Idaho 583, 144 P. 646; Graham v. Coeur d' Alene etc. Transp. Co., 27 Idaho 454, 149 P. 509; Bower v. Moorman, 27 Idaho 162, Ann. Cas. 1917C, 99, 147 P. 496; Darry v. Cox, 28 Idaho 519, 155 P. 660; Jensen v. Bumgarner, 28 Idaho 706, 156 P. 114; John V. Farwell Co. v. Craney, 29 Idaho 82, 157 P. 382; Smith v. Faris-Kesl Const. Co., 27 Idaho 407, 150 P. 25; Goldensmith v. Snowstorm Min. Co., 28 Idaho 403, 154 P. 968.)

Where instructions as a whole properly lay down the rule of law, court will not reverse the lower court by reason of some defect in one of the instructions. (Taylor v. Lytle, 29 Idaho 546, 160 P. 942; Cady v. Keller, 28 Idaho 368, 154 P. 629.)

MORGAN, C. J. Rice and Budge, JJ., concur.

OPINION

MORGAN, C. J.

This action was commenced by respondent to recover for labor performed by her as a household servant for and at the instance and request of appellant's intestate. The employment was denied, and an affirmative defense and counterclaims were alleged, in the answer. The trial resulted in a judgment for plaintiff from which, and from an order denying a motion for a new trial, this appeal is prosecuted.

Appellant has assigned as error orders overruling his motions for a continuance and for a new trial. The transcript does not contain a certificate showing what papers were submitted to the judge and by him used on the hearing of either of these motions, and, therefore, neither of the orders can be...