Newby v. City of St. Anthony, 5417

• Decision Date: 10 January 1930
• Docket Number: 5417
• Parties: ADA NEWBY, Appellant, v. CITY OF ST. ANTHONY, Respondent
• Court: Idaho Supreme Court

284 P. 1028

48 Idaho 608

ADA NEWBY, Appellant, v. CITY OF ST. ANTHONY, Respondent

No. 5417

Supreme Court of Idaho

January 10, 1930

APPEAL AND ERROR-MOTION FOR DIMINUTION OF RECORD.

1. Motion for diminution of record for certification as to service of notice of intention to move for new trial, failing to give reason for seeking such certificate in such manner was insufficient to authorize an order allowing diminution of record.

2. Motion for diminution of record will not be granted, in order to permit insertion of a new order not yet made, rather than to supply something in the record and omitted, or something filed and omitted.

MOTION in re diminution of the record. Denied.

F. A Miller, B. H. Miller and J. R. Smead, for Appellant.

The Nevada court has passed upon a similar question, to this effect, that a diminution of record contemplates bringing up something that has been overlooked, but not something that was not a part of the record when the appeal was taken, upon which record the appeal must necessarily depend. (Warren v. Wilson, 46 Nev. 272, 210 P. 204, 212 P. 497; Kirby v Superior Court, 68 Cal. 606, 10 P. 119.)

And the supreme court of Utah has discussed a question very similar to the one now before this court. (Warnock Ins. Agency v. Peterson Real Estate Inv. Co., 35 Utah 542, 101 P. 699.)

James G. Gwinn, F. L. Soule and Grant Soule, for Respondent.

This is not a case of seeking to make service now, and asking to have it relate back to a date within the jurisdictional time for service, but, on the contrary, to show the fact of service which was actually made within the jurisdictional time.

"It is the fact of service which gives the court jurisdiction, and not the proof of service." (Call v. Rocky Mountain Bell Tel. Co., 16 Idaho 551, 133 Am. St. 135, 102 P. 146.)

In this case this court had this to say: "It would be a lamentable commentary on the administration of justice, if a defendant who has been actually served with process can allow a default judgment entered against him, and thereafter procure the judgment to be vacated and set aside, either in the court in which it was rendered or on appeal, simply because the proof of service on file is insufficient, when the plaintiff is, at the same time in court presenting a sufficient and amended proof of service, and clamoring for an opportunity to file the same and have it made a part of the record in the case."

Later, in the case of Blandy v. Modern Box. Mfg. Co., 40 Idaho 356, 365, 232 P. 1095, this court affirmed the principle set forth in the Call case again, by approving the following rule on the subject:

"When service has, in fact, been made, so as to give the court jurisdiction, but the proof thereof is defective, or altogether lacking, the defect may be remedied or the proof supplied after judgment. It is the service, and not the proof thereof, that gives the court jurisdiction."

GIVENS, C. J. T. Bailey Lee, Wm. E. Lee and Varian, JJ., concur.

OPINION

GIVENS, C. J.

Appellant asks for a diminution of the record to have the clerk certify there was no showing of service of...