McDonald v. Challis

• Decision Date: 02 December 1912
• Citation: 22 Idaho 749,128 P. 570
• Parties: E. L. MCDONALD et al., Appellants, v. E. I. CHALLIS, Respondent
• Court: Idaho Supreme Court

128 P. 570

22 Idaho 749

E. L. MCDONALD et al., Appellants, v. E. I. CHALLIS, Respondent

Supreme Court of Idaho

December 2, 1912

MISCONDUCT OF JURY-SATISFACTION OF CHATTEL MORTGAGE-INSTRUCTIONS.

(Syllabus by the court.)

1. Affidavits charging misconduct of jury examined and held insufficient to show any injustice sustained by the moving party or substantial reason for granting a new trial.

2. In an action by mortgagor against a mortgagee for damages and penalty under sec. 3402, Rev. Codes, on appeal from the judgment where the evidence is not brought up in the record instructions will not be considered, although excepted to in the lower court, where the appellate court cannot say as a matter of law that such instructions would have been erroneous under any state of facts which might have been presented in the case; but, on the contrary, the appellate court will assume that the instructions were given in the light of the evidence adduced on the trial.

APPEAL from the District Court of the Eighth Judicial District for Kootenai County. Hon. R. N. Dunn, Judge.

Action by plaintiffs for damages and penalty for failure to discharge and cancel a chattel mortgage. Judgment for defendant and plaintiffs appeal. Affirmed.

Judgment affirmed, with costs in favor of respondent.

R. M Smith, for Appellants.

"An appeal founded on the giving of erroneous instructions will not be dismissed for failure to set out the evidence, where the errors assigned could not have been correct under any evidence." (Sutherland on Pleading, sec. 1901, and cases cited; Hayne, New Trial and Appeal, sec. 130.)

Lynn W Culp, for Respondent.

AILSHIE, J. Stewart, C. J., and Sullivan, J., concur.

OPINION

AILSHIE, J.

This action was instituted by the appellants as mortgagors to recover damages and the statutory penalty, under sec. 3402, Rev. Codes, against the respondent for failure and neglect to cancel and satisfy a mortgage of record which the appellants claimed and alleged had been paid in full. Respondent answered, and the case went to trial and resulted in a judgment in favor of the respondent. This appeal was thereupon prosecuted.

The first proposition presented is that the jury were guilty of misconduct which prejudiced the appellants and prevented them having a fair and impartial verdict. Certain affidavits were filed in which it was claimed that one of the jurors made certain statements in the jury-room which tended to the prejudice of the plaintiffs, and this is contradicted by counter-affidavit by other jurors who say they did not hear any such statements. The...