Morrison v. Pierce

• Decision Date: 01 April 1929
• Docket Number: 5102
• Citation: 47 Idaho 430,276 P. 306
• Parties: H. L. MORRISON and ROXIE R. MORRISON, Appellants, v. WALTER E. PIERCE, Respondent
• Court: Idaho Supreme Court

276 P. 306

47 Idaho 430

H. L. MORRISON and ROXIE R. MORRISON, Appellants, v. WALTER E. PIERCE, Respondent

No. 5102

Supreme Court of Idaho

April 1, 1929

APPEAL AND ERROR-ABSENCE OF TRANSCRIPT OF TESTIMONY-PRESUMPTION OF REGULARITY OF PROCEEDINGS-REFORMATION OF INSTRUMENTS-DEGREE OF PROOF NECESSARY-INSTRUCTIONS.

1. On an appeal from judgment upon the judgment-roll, the bill of exceptions not containing the reporter's transcript of the evidence taken and proceedings had at the trial, all intendments favor the judgment, and all proceedings necessary to its validity will be presumed to have been regular.

2. Where there is no transcript of testimony on appeal, and the exhibits are the only evidence before the reviewing court, it will be presumed that there was no evidence contrary to the showing made by such exhibits.

3. Ordinarily, supreme court will not pass upon purely abstract or academic questions of law pertaining to alleged erroneous instructions after trial court has denied a motion for new trial, unless entire record demonstrates that alleged erroneous instructions actually prejudiced appellant's rights, and that, had error complained of not occurred, there might have been a finding by jury contrary to verdict rendered.

4. Where there is no evidence before reviewing court sustaining appellant's position, it will be presumed that there was no evidence to sustain same, and that respondent was entitled to a directed verdict, and, consequently, even if instructions complained of were in fact erroneous, still judgment will not be reversed, since party cannot complain of instruction more favorable than that to which he was entitled.

5. Supreme court would not reverse for error based on giving and refusal to give instructions, where there was no transcript of evidence, since it would be presumed that judgment appealed from was correct and in accordance with evidence admitted at trial.

6. Whether tried by court alone or tried by a jury, proof must be clear and convincing to justify the reformation of contracts, and a bare preponderance of the evidence is not sufficient.

7. In action to have conveyance, absolute on its face, declared a mortgage, instructions, that plaintiffs must establish their case by preponderance of the evidence, and then further directing jury's attention to the particular issue of fact, and after that informing them that the proof must be clear and convincing, held not inconsistent or conflicting.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Clinton H. Hartson, Judge.

Action to declare conveyance absolute on its face a mortgage and for damages for conversion of chattels described therein. Judgment for defendant. Affirmed.

Judgment and order affirmed, with costs to respondent.

Martin & Martin, for Appellants.

In a civil case tried before the court and a jury a plaintiff is only required to establish his case by a preponderance of the evidence. (Hess v. Hess, 41 Idaho 359, 239 P. 956; Newman v. Great Shoshone Power Co., 28 Idaho 764 156 P. 111.)

Inconsistent instructions cannot stand together, and where the court gives one correct instruction and one or more incorrect instructions on the same subject, it is necessary to direct a new trial in order that the objectionable instruction may be eliminated from instructions to the jury. (Portneuf Marsh Valley Irr. Co., Ltd., v. Portneuf Irr. Co., Ltd., 19 Idaho 483, 114 P. 19; Detroit Fire & Marine Ins. Co. v Sargent, 42 Idaho 369, 246 P. 311.)

Conflicting instructions cannot be read together and the correct one prevail. (Portneuf Marsh Valley Irr. Co. v. Portneuf Irr Co., Ltd., supra.)

Richards & Haga, for Respondent.

In an action brought for the purpose of declaring a deed a mortgage, the evidence to support the claim of the plaintiff must be clear, satisfactory and convincing and where the trial court has declared a deed absolute on its face to be a deed and not a mortgage, the court on appeal will not reverse the judgment, unless the evidence is almost overwhelming the other way. (Bergen v. Johnson, 21 Idaho 619, 123 P. 484; Shaner v. Rathdrum State Bank, 29 Idaho 577, 161 P. 90; Clinton v. Utah Construction Co., 40 Idaho 659, 237 P. 427; Johansen v. Looney, 30 Idaho 123, 163 P. 303.)

In a case involving a number of issues including one where an instrument absolute on its face is sought to be declared a mortgage, it is proper to instruct the jury that the plaintiff must prove his entire case by a preponderance of the evidence, but as to the issue pertaining to parol proof introduced to change an instrument absolute on its face into a mortgage, the court may caution and comment and instruct with respect to the quality and character of proof relative to such equitable issue, to the end that the jury may know how to appreciate and weigh the parol evidence upon such issue so that it may intelligently comply with the general instruction that a plaintiff in such proceeding must prove his case by a preponderance of the evidence and realize and appreciate the quality and character of parol evidence necessary to so preponderate over a written instrument. (Voorhies v. Hennessy, 7 Wash. 243, 34 P. 931; Perot v. Cooper, 17 Colo. 80, 31 Am. St. 258, 28 P. 391; Winston v. Burnell, 44 Kan. 367, 21 Am. St. 289, 24 P. 477; Hockett v. Earl, 89 Kan. 733, 133 P. 852; Felaine v. Welch, 126 Kan. 435, 268 P. 821; Sloan v. Becker, 34 Minn. 491, 26 N.W. 730; Carlson v. Kroeger, 151 Minn. 343, 186 N.W. 705.)

Upon an appeal from a judgment upon the judgment-roll only all intendments will be made in support of the judgment and all proceedings necessary to its validity will be presumed to have been regularly taken; and where there is no transcript of the testimony and the exhibits are the only evidence before the court, it will be presumed that there was no evidence contrary to the showing made by such exhibits. (Boise Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035; McDonald v. Challis, 22 Idaho 749, 128 P. 570; Nelson v. Lemmon, 10 Cal. 49; Osmundson v. Moore Mercantile Co., 70 Mont. 458, 226 P. 215; Bryant v. Gray, 179 Cal. 679, 178 P. 709; Hilker v. Kelley, 130 Ind. 356, 30 N.E. 304, 15 L. R. A. 622.)

It is not sufficient to merely demonstrate abstract and academic propositions of law pertaining to alleged erroneous instructions, particularly after the trial court has denied a motion for a new trial, unless it can also be demonstrated from the entire record and testimony that the alleged erroneous instructions actually resulted to appellants' prejudice and that had the error not occurred there might have been a finding by the jury in favor of appellants. (Davis v. Chesapeake & Ohio Ry. Co., 61 W.Va. 246, 56 S.E. 400, 9 L. R. A., N. S., 993; Hamlin v. Pacific Electric Ry. Co., 150 Cal. 776, 89 P. 1109; Carnafax v. Bank of Commerce, 76 Okla. 289, 8 A. L. R. 59, 184 P. 1014; Morgan v. Bankers Trust Co., 63 Wash. 476, 115 P. 1047.)

ADAIR, District Judge. Budge, C. J., Givens, J., and Baker, D. J., concur, Wm. E. Lee, J., concurs in the result.

OPINION

ADAIR, District Judge.

Appellants executed and delivered to respondent a contract in writing purporting to be an absolute assignment and transfer of all their title and interest, if any, in a certain restaurant and cafeteria, and all equipment, furniture and fixtures of every kind used in connection therewith, located in a building belonging to respondent but occupied for such business purpose by appellants. Because of alleged nonpayment of rent they were later evicted, and then brought this action for damages for the alleged wrongful conversion of their personal property, asserting in their complaint, that the contract was in effect a mortgage to secure certain indebtedness due respondent from them. A trial by jury resulted in a verdict for the defendant, and from the judgment entered thereon, and an order denying a motion for a new trial, this appeal is taken.

Under the pleadings several issues of facts were raised. Numerous witnesses were sworn and testified. The error assigned is based upon the giving and refusal to give certain instructions. There is no transcript of the evidence, the record here including only the judgment-roll, court minutes, exhibits, instructions requested, and those given.

The verdict was general, and the jury may have found for respondent upon some issue entirely disassociated from that involved in the instructions complained of. The jury may have found that there was no proof that the appellants had suffered any damage or injury, or they may have found for respondent on some other issue, where there would have been no occasion for them to apply either of the instructions now claimed to be erroneous. In an appeal from a judgment upon the judgment-roll, the bill of exceptions not containing the reporter's transcript of the evidence taken and proceedings had at the trial, all intendments favor the judgment, and all proceedings necessary to its validity will be presumed to have been regular; and where there is no such transcript of the testimony and the exhibits are the only evidence before this court, it will be presumed that there was no evidence contrary to the showing made by such exhibits. (Boiss Valley Traction Co. v. Ada County, 38 Idaho 350, 222 P. 1035; McDonald v. Challis, 22 Idaho 749, 128 P. 570; Nelson v. Lemmon, 10 Cal. 49; Bryant v. Gray, 179 Cal. 679, 178 P. 709; Frost v. Grizzly Bluff Creamery Co., 102 Cal. 525, 36 P. 929.)

Ordinarily this court will not pass upon purely abstract or academic questions of law pertaining to alleged erroneous instructions, after a trial court has denied a motion for a new trial, unless the entire record demonstrates the fact that the alleged erroneous instructions actually...