Paragoonah Field & Canal Co. v. Edwards

• Decision Date: 29 January 1894
• Citation: 9 Utah 477,35 P. 487
• Court: Utah Supreme Court
• Parties: PARAGOONAH FIELD AND CANAL COMPANY AND OTHERS, RESPONDENTS, v. WILLIAM EDWARDS, APPELLANT

35 P. 487

9 Utah 477

PARAGOONAH FIELD AND CANAL COMPANY AND OTHERS, RESPONDENTS, v. WILLIAM EDWARDS, APPELLANT

Supreme Court of Utah

January 29, 1894

APPEAL from a decree of the district court of the second district and from an order refusing a new trial, Hon. T. J. Anderson judge.

The transcript in this case was in a remarkable condition. It showed the complaint and answer, the evidence taken at the trial, the findings and decree, a notice of motion for a new trial, specifying errors; then followed a specification of errors, pointing out wherein the evidence was insufficient then followed the notice of appeal and undertaking, and a stipulation to this effect: "The foregoing record is a full, true and correct copy of the judgment roll, of all testimony taken at the trial, and may be used as the statement on motion for a new trial and on appeal, and all the exhibits used in evidence in said case are considered as incorporated in the said record and the originals may be used on motion for a new trial and on appeal. And the plaintiffs waive all irregularities in the time of service of the said papers, of the notice of motion for a new trial and of the foregoing record, and hereby acknowledge that all were served in due time." This stipulation was signed by the respective attorneys, This was the only settlement of the statement. It was not signed or settled by any judge. It did however, contain the specification of errors mentioned above.

The findings of the lower court were as follows: That the plaintiff corporation is and was a corporation, that the original appropriators of the waters of Red Creek turned them over to the plaintiff corporation, and one of the persons so doing was the defendant, that plaintiff corporation continued the use and control of said waters until June, 1890, with the acquiescence of the defendant, when defendant diverted said waters from their usual course and from the ditches of plaintiffs and ran the same upon new lands, depriving plaintiffs, other than the corporation, of water in their ditches for the use of their lands along said ditches, to their irreparable damage.

The original decree gave the control of the waters to the plaintiff corporation and the other plaintiffs and the words "the other plaintiffs" were stricken out wherever they occurred leaving the whole control to the plaintiff corporation. This was the only change.

Each party to this suit, pay, their own costs on this appeal, each party to pay one-half of the costs of the clerk of this court.

Mr Barlow Ferguson, Mr. Scipio A. Kenner and Mr. John W. Christian, for the appellant.

Mr. Presly Denny and Mr. John W. Judd, for the respondents.

SMITH, J. MINER, J., and BARTCH, J., concurred.

OPINION

SMITH, J.:

In this case there is an appeal from the judgment and from an order denying defendant's motion for new trial.

The appeal from the order denying a new trial must be disregarded.

The statement on motion for new trial was settled and signed by the judge and the motion for a new trial was founded on it. The statement contains no specifications of insufficiency of the evidence or of errors of...