Marnella v. Froman

• Decision Date: 27 January 1922
• Citation: 35 Idaho 21,204 P. 202
• Parties: WILLIAM MARNELLA, Respondent, v. GEORGE W. FROMAN, as Sheriff of Canyon County, Idaho, Appellant
• Court: Idaho Supreme Court

204 P. 202

35 Idaho 21

WILLIAM MARNELLA, Respondent, v. GEORGE W. FROMAN, as Sheriff of Canyon County, Idaho, Appellant

Supreme Court of Idaho

January 27, 1922

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Agister's action for damages against sheriff foreclosing chattel mortgage. Judgment for plaintiff. Reversed.

Reversed and remanded. Costs awarded to appellant.

Ed. R Coulter, for Appellant.

The evidence all shows that the defendant in receiving the affidavit of foreclosure of chattel mortgage of the bank and his subsequent proceedings in seizing the property and selling the same was in all respects acting lawfully and in accordance with the law, and was justified in seizing and selling said property under said affidavit and demand of the bank. (Secs. 472, 474; Jones on Chattel Mortgages, 5th ed., Smith v. Worman, 19 Ohio St. 145; Eisler v Union Transfer & S. Co., 35 N.Y.S. 374, 12 N.Y.S. 732; Vette v. Leonori, 42 Mo.App. 217; Ingalls v Vance, 61 Vt. 582, 18 A. 452; Hanch v. Ripley, 127 Ind. 151, 26 N.E. 70, 11 L. R. A. 61; Howes v. Newcomb, 146 Mass. 76, 15 N.E. 123.)

The court erred in giving instructions to the jury on the question of actual or implied consent on the part of the Weiser National Bank, for the reason that there was no evidence whatsoever given of any implied consent, or any facts upon which could have been legally predicated an instruction of actual or implied consent. (Wilson v. Donaldson, 121 Cal. 8, 66 Am. St. 17, 53 P. 404, 43 L. R. A. 524; Hanch v. Ripley, supra; Howes v. Newcomb, supra; Storms v. Smith, 137 Mass. 201; Ingalls v. Vance, supra.)

Hill & Boone, for Respondent.

Alleged errors of the trial court in giving and refusing to give instructions cannot be reviewed by this court unless the instructions are presented by the reporter's transcript, or saved by a bill of exceptions duly settled and certified as required by law. (C. S., sec. 6886; Minneapolis Threshing Mach. Co. v. Peterson, 31 Idaho 745, 176 P. 99; King v. Seebeck, 20 Idaho 223, 118 P. 192; Crowley v. Croesus Gold & Copper Min. Co., 12 Idaho 530, 86 P. 536.)

The specification that the judgment is contrary to law and evidence is not legal ground for a reversal of the judgment. (Caldwell v. Wells, 16 Idaho 459, 101 P. 812.)

Where the issues raised upon an appeal from the judgment have been disposed of on appeal from an order on motion for new trial in the same case, the appeal from the judgment will be dismissed. (Coats v. Harris, 9 Idaho 470, 75 P. 246.)

MCCARTHY, J. DUNN and Lee, JJ., concur.

OPINION

MCCARTHY, J.

In this case the appeal from the order denying the new trial was dismissed and the case stands on the appeal from the judgment. The specifications of error are that the court erred in giving certain instructions and refusing certain offered instructions and that the judgment is contrary to law and the evidence.

Respondent contends that the alleged errors in giving and refusing instructions cannot be reviewed, for the reason that the instructions are not contained in the reporter's transcript or in a bill of exceptions. (Minneapolis Threshing M. Co. v. Peterson, 31 Idaho 745, 176 P. 99; King v. Seebeck, 20 Idaho 223, 118 P. 292; Crowley v. Croesus Gold etc. Co., 12 Idaho 530, 86 P. 536; Steinour v. Oakley State Bank, 32 Idaho 91, 177 P. 843.) In the instant case appellant's praecipe to the clerk called for the instructions given by the court and instructions offered by appellant and refused. They are embodied in the clerk's transcript as part of the files in the action. The certificate of the clerk states that his transcript contains a full and true copy of the instructions given and the instructions refused and that they are part of the files. After the decisions just above named, C. S., sec. 7163, was amended to read as follows, the amendment being italicized: "On appeal from a final judgment the appellant must furnish the court with copy of the notice of appeal of the judgment-roll and of any bill of exceptions or reporter's transcript prepared and settled as prescribed in section 6886, upon which the appellant relies, and of all papers, records and files designated in the praecipe filed by appellant with the clerk of the district court."

This court said, in Stringer v. Redfield, 34 Idaho 378, 201 P. 714: "The amendment consisted of adding to the section as it formerly stood the words in italics in the above quotation. It may be and probably is, true that in cases in which the trial judge has filed with the clerk the instructions given and instructions requested by the parties, with his endorsements thereon, and they have been included in the record in response to a praecipe filed by appellant, they may be subject to review under the two sections above mentioned, without being preserved in a formal bill of exceptions."

While that expression is obiter dictum, it was advisedly made, and we approve it. The instructions, having been filed with the clerk and included and certified by him in response to appellant's praecipe, are subject to review under C. S., sec. 7163.

Respondent also contends that, where the issues raised upon an appeal from the judgment have been disposed of on appeal from an order denying a motion for a new trial, the appeal from the judgment should be dismissed. (Coats v. Harris, 9 Idaho 470, 75 P. 246.) In that case the court entertained the appeal from an order denying a new trial and disposed of all the points raised. In the instant case the points raised by the appeal from the order denying a new trial were not passed upon, because that appeal was dismissed.

Respondent contends that the specification that the judgment is contrary to law and evidence is not sufficient, citing Caldwell v. Wells, 16 Idaho 459, 101 P. 812. In that case the court held that insufficiency of the evidence to justify the judgment is not a ground of motion for a new trial, that a motion for a new trial should be directed to the verdict and not to the judgment. In the instant case we are considering the appeal from the judgment, not the appeal from the order denying a new trial, and the case cited is not in point. The question of the insufficiency of the evidence to support the judgment may be raised on the reporter's transcript if presented by a specification of insufficiency in the brief. (C. S., sec. 6886, subd. 3; Citizens' Right of Way Co. v. Ayers, 32 Idaho 206, 179 P. 954.) Specification of error No. 4 is as follows: "That the judgment of the court is contrary to law and evidence for each of the reasons hereinbefore set forth."

This refers back to the preceding specifications, including No. 1 which raises the point that the court erred in refusing to grant the motion for a new trial, and sets forth the particulars in which the evidence is insufficient to support the verdict. While specification No. 1 cannot be considered by itself, because the appeal from the order denying a new trial was dismissed, yet the particulars of insufficiency set forth in it are referred to by, and made part of, No. 4. The particulars in which the evidence is insufficient to support the judgment are thus presented in the...