Penny v. Nez Perces County

• Decision Date: 31 December 1895
• Citation: 43 P. 570,4 Idaho 642
• Parties: PENNY v. NEZ PERCES COUNTY
• Court: Idaho Supreme Court

43 P. 570

4 Idaho 642

PENNY v. NEZ PERCES COUNTY

Supreme Court of Idaho

December 31, 1895

APPEALS-FAILURE TO COMPLY WITH STATUTES AND RULES OF COURT-STIPULATION.-When the record fails to show a compliance with the statutes or the rules of this court in the taking of an appeal, the appeal will be dismissed. A failure to comply with the provisions of the statutes or the rules of this court in taking an appeal cannot be cured by stipulation.

(Syllabus by the court.)

APPEAL from District Court, Latah County.

Appeal dismissed, without costs.

James W. Reid, for Appellant.

As to the motion to dismiss because the record does not show entry of judgments. In the case of Durant v. Comegys, 3 Idaho 67, 35 Am. St. Rep. 267, 26 P. 755, Mr. Justice Morgan simply decided that the alleged judgment appealed from was simply "an order for judgment only." In the cases at bar, the judgments were actually drawn up in the form in which it was designed to be entered, signed by the judge and filed by the clerk, and nothing remained to be done except the mere ministerial duty, to be performed by the clerk, of copying it into the judgment-book. It was a judgment of the court. (Sawyer, J., in Genellee v. Reylen, 32 Cal 160; 1 Bloch on Judgments, sec. 110.) Public officers are presumed to have performed their duty as required by law until the contrary appears. (People v. Smith, 59 Cal. 367; Rev. Stats., sec. 4454; 19 Am. & Eng. Ency. of Law 49.)

Attorney General George M. Parsons and James E. Babb, for Respondent.

The specifications of errors in the statement are not, except the first, sufficiently specific to present any question for the court's consideration. (Wilson v. Wilson, 45 Cal. 495; Harding v. Vanderwater, 40 Cal. 78; Haggin v. Clark, 28 Cal. 165; Rev. Stats. 1887, sec 4441, par. 3.) There being no errors assigned in the brief according to paragraph 1 of rule 6, except said specifications in the statement, and the first of those being immaterial, and the others insufficient, there is no question before the court. The statement on motion for a new trial cannot be used, because it is not certified and signed by the judge. Hence the statement is insufficient and the agreed facts cannot be considered. (Schrieber v. Whitney, 60 Cal. 431; Adams v. Dohrmann, 63 Cal. 418; Gee v. Terrio, 55 Cal. 381.) The transcript does not show the entry of any judgment below, hence the appeal from the judgment should be dismissed. (Durant v. Comegys, 3 Idaho 67 35 Am. St. Rep. 267, 26 P. 755.)

HUSTON, J. Morgan, C. J., and Sullivan, J., Concur.

OPINION

HUSTON, J.

The transcript of this case comes to us in such questionable shape that it is extremely difficult for us to learn therefrom just what the real status of the case in this court is. Counsel seem to have an idea that the appellate jurisdiction of the court is controlled, or, at least directed, by stipulations of counsel. The statutes prescribe the means by which the appellate powers of this court can be invoked, and in no other way can such power or jurisdiction be made available. The case, as appears from the record, was heard by the judge of the district court, without a jury, upon an agreed statement of facts. The court finds the facts different from what is set forth in the agreed statement; as, for instance, the agreed statement of facts contains the following: "That after receiving the said warrants from the said several parties, as hereinbefore stated, on or about the middle of June, 1892, and for a long time prior thereto, plaintiff had all and each of said warrants deposited in the safe of J. D. C. Thiessen, in his saloon in the city of Lewiston, county and state aforesaid, and that, on the sixteenth day of June, 1892, the said safe of the said Thiessen was blown open and robbed of its contents, while the said county warrants were deposited therein, and all and each of the said warrants were taken by the persons who robbed the safe, and were destroyed by said persons." The eighth finding of the court is "that George Penny swears that, after receiving the said warrants as aforesaid," etc., and then follows the same language used in the statement of facts above given. Now, it appears from the record that no witnesses were sworn in the case. It was submitted upon an agreed statement of facts. If George Penny swore as stated in the said finding, it must have been in his complaint, or in the exhibit attached to said complaint; and it is evident counsel agreed that such statement, whether sworn to or not, was true, and it would seem that it should have been so accepted by the trial court. Otherwise, the findings of fact of the court are in accord with the agreed statement of facts. The court finds, as conclusion of law, "that the said board of county commissioners have no authority to issue warrants in lieu of those alleged to have been lost, as in the complaint set forth, unless especially empowered so to do by express provisions of the statute." Then follows, in the record,...