McCrea v. McGrew

• Decision Date: 31 December 1903
• Parties: McCREA v. McGREW
• Court: Idaho Supreme Court

75 P. 67

9 Idaho 382

McCREA v. McGREW

Supreme Court of Idaho

December 31, 1903

APPEALS FROM JUDGMENT AND ORDER DENYING MOTION FOR A NEW TRIAL-MOTIONS TO DISMISS.

1. Under the provisions of section 4807, Revised Statutes, an appeal taken more than one year after the entry of a judgment will be dismissed on motion.

2. Unless good cause is shown for the delay, an appeal from an order denying a new trial taken more than a year after the entry of judgment will be dismissed on motion.

3. Where no error affecting the substantial rights of the defendant appears in the record, the judgment will be affirmed.

(Syllabus by the court.)

APPEAL from District Court of Latah County. Honorable Edgar C Steele, Judge.

Action to recover for the conversion of certain wheat. Judgment for the plaintiffs. Affirmed.

Affirmed, with costs.

Forney & Moore, for Appellants, cite no authorities on the points decided by the court.

George W. Tannahill and S. S. Denning, for Respondents.

In this action respondents have filed motions to dismiss the appeals both from the judgment and from the order denying a new trial and based upon the several grounds designated in the motion. We will first consider the motion to dismiss the appeal from the judgment, which we contend is well taken, should and will be sustained by this honorable court. Subdivision 1, section 4807, Revised Statutes of Idaho provides that appeals from judgments must be taken within one year after the entry of the judgment. (Marchand v. Ronaghan, ante, p. 95, 72 P. 731; Robson et al. v. Colson, ante, p. 215, 72 P. 951.)

SULLIVAN C. J. Stockslager and Ailshie, JJ., concur.

OPINION

SULLIVAN, C. J.

This action was brought by respondents as plaintiffs against the appellants as defendants, to recover the sum of $ 500 damages for the conversion of one thousand and sixty-seven bushels of wheat alleged to belong to respondents. The complaint contains the proper allegations of copartnership of both the respondents and appellants, which allegations were admitted by the defendants.

It is alleged that during the month of September, 1900, one Peter Thompson delivered to the defendants one thousand and sixty-seven bushels of wheat, which allegation is admitted by the defendants' answer. Plaintiffs also allege that upon the delivery of said wheat defendants issued to said Thompson a number of wheat receipts or tickets which are dated at Kendrick, Idaho signed by the Kendrick Grain Company by E. Lewellyn, who was then in the employ of defendants, managing and conducting their said warehouse business and acting as their agents in Nez Perce county, Idaho all of which is admitted by appellants.

It is further alleged that on or about the day of December, 1900, the said Thompson for value, assigned and delivered said wheat receipts or tickets, and the wheat represented by them, to the plaintiff, who is now the lawful owner and holder thereof, which allegations are denied by appellants.

It is also alleged that upon the day of September, 1900, said defendants transferred said wheat from said Nez Perce county, by means of a pipe-line by shooting the said wheat into said pipe across Potlach creek into the county of Latah, and that said wheat evidenced by said tickets subsequent to said time and the conversion thereof, remained in said Latah county. It is also alleged that defendants have failed and refused to deliver or return the said one thousand and sixty-seven bushels of wheat, or any part thereof, to the said plaintiffs or to said Thompson, plaintiffs' assignor. This latter allegation is admitted by the appellants. It is also alleged that appellants have converted said wheat to their own use to the plaintiffs' damage in the sum of $ 500, which allegation is denied by defendants. By the answer of defendants it is denied that said one thousand and sixty-seven bushels of wheat is of the value of $ 500, or of any other or greater sum than the sum of $ 400, and appellants seek to justify their failure to deliver said wheat by their denial that the same was transferred from the said Nez Perce county to said Latah county, and aver that said wheat was destroyed by fire in Nez Perce county on the eleventh day of October, 1900.

This case was tried on the issues thus made on the twentieth day of December, 1901. A verdict of the jury was returned on the twenty-first day of December, 1901, in favor of the plaintiffs and against the defendants, for the sum of $ 456.30, and judgment was duly entered in favor of the plaintiffs for said sum on the latter date. Thereafter a motion for a new trial was made by appellants and denied by the court. The appeal is from the judgment and from the order denying a motion for a new trial. The respondents interposed a motion to dismiss the appeal; the first from the judgment on the ground that the appeal was not taken from the judgment within one year, and the other from the order denying a new trial on the ground that the appeal from said order was not taken within one year from the date of the judgment.

As to the first motion, the judgment was entered on the twenty-first day of December, 1901. The notice of appeal from the judgment was not...