McCarty v. Warnkin

• Decision Date: 01 July 1922
• Citation: 35 Idaho 614,207 P. 1075
• Parties: W. N. MCCARTY, Respondent, v. ARTHUR WARNKIN, DAVID PARKER and A. D. MERRILL, Appellants
• Court: Idaho Supreme Court

207 P. 1075

35 Idaho 614

W. N. MCCARTY, Respondent, v. ARTHUR WARNKIN, DAVID PARKER and A. D. MERRILL, Appellants

Supreme Court of Idaho

July 1, 1922

APPEAL AND ERROR-REPORTER'S TRANSCRIPT NOT CONSIDERED UNLESS SETTLED-ABSENCE OF CERTIFICATE AS TO PAPERS USED ON CONTESTED MOTION.

1. Where a transcript on appeal contains what purports to be a reporter's transcript of the proceedings at the trial which is not settled by the trial judge, the same cannot be considered on appeal from a judgment.

2. Where the transcript on appeal from an order or contested motion does not contain a certificate of the trial judge clerk or attorneys, that the papers therein contained constitute all the records, papers and files used or considered by the judge making the order on the hearing of the motion, as required by C. S., sec. 7167, and Rule 24 of this court, the appeal will be dismissed.

APPEAL from the District Court of the Fifth Judicial District, for Bear Lake County. Hon. Robert M. Terrell, Judge.

Action on bond. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

John A Bagley, Wm. J. Ryan and Peterson & Coffin, for Appellants, cite no authorities on points decided.

White & Bentley and H. B. Thompson, for Respondent.

The transcript of the testimony was never settled by the court, and hence, of course, cannot be considered. (Washington etc. R. R. Co. v. Osborne, 2. Idaho 557, 21 P. 421; Minneapolis Threshing Machine Co. v. Peterson, 31 Idaho 745, 176 P. 99.)

"In the absence of the evidence it is to be presumed that, the verdict was supported and justified by the evidence." (Needham v. Needham, 34 Idaho 193, 200 P. 346, 348; Bergh v. Pennington, 33 Idaho 726, 198 P. 158; Newman v. Oregon Short Line R. R. Co., 34 Idaho 417, 201 P. 710.)

RICE, C. J. Budge, McCarthy, Dunn and Lee, JJ., concur.

OPINION

RICE, C. J.

The appeal in this case is from a judgment and from an order denying appellants' motion for a new trial.

The record contains what purports to be a reporter's transcript of the evidence and proceedings at the trial, which is not settled by the trial court. It cannot be considered on appeal. (Wells v. Culp, 30 Idaho 438, 166 P. 218; Minneapolis Threshing Machine Co. v. Peterson, 31 Idaho 745, 176 P. 99; Ellsworth v. Hill, 34 Idaho 359, 200 P. 1067.)

The transcript does not contain a certificate as to the papers used upon the hearing of the motion for a new trial. The action of the court in denying the motion is therefore not subject to review. (Biwer v. Van Dorn, 32 Idaho 213, 179 P. 953; Spencer v. John, 33 Idaho 717, 197 P. 827.)

This leaves the judgment-roll alone for consideration. No error appearing on the...