Preston A. Blair Co. v. Rose

• Decision Date: 31 October 1935
• Docket Number: 6282
• Citation: 56 Idaho 114,51 P.2d 209
• Parties: PRESTON A. BLAIR COMPANY, a Corporation, Respondent, v. EARL ROSE, Appellant
• Court: Idaho Supreme Court

51 P.2d 209

56 Idaho 114

PRESTON A. BLAIR COMPANY, a Corporation, Respondent, v. EARL ROSE, Appellant

No. 6282

Supreme Court of Idaho

October 31, 1935

CLAIM AND DELIVERY-REPLEVIN-RIGHT OF POSSESSION OF PERSONAL PROPERTY-PROBATE COURTS-JURISDICTION-APPEAL AND ERROR-RECORD ON APPEAL, SUFFICIENCY OF-SCOPE OF REVIEW-INSTRUCTIONS-FORM OF VERDICT-PLEADING-"SPEAKING DEMURRER."

1. Documents submitted for consideration of Supreme Court could not be considered in absence of testimony identifying them and showing what bearing, if any, they had on case.

2. In absence of bill of exceptions and of a reporter's transcript, settled by trial judge, failure, in claim and delivery action instituted in probate court having jurisdiction not exceeding $500, to give instruction that if value of automobile involved exceeded $500 verdict should be for defendant, held not error.

3. In absence of bill of exceptions or of reporter's transcript, settled by trial judge, Supreme Court could not determine that giving of instructions, in claim and delivery action instituted in probate court having jurisdictional limitation of $500, that if verdict was for defendant then jury should determine value of automobile at time it was repossessed by plaintiff, was error.

4. Requested instructions are properly refused when they are not based on evidence in case.

5. In claim and delivery action instituted in probate court failure to submit form of verdict which would show jury's decision as to value of property, if it found for plaintiff so as to entitle defendant to have action abate if value was in excess of probate court's jurisdiction, held not reversible error, in absence of bill of exceptions and of reporter's transcript, settled by trial judge (I. C. A sec. 7-222).

6. Claim and delivery is action both in personam and in rem (I C. A., sec. 7-1104).

7. Probate court has jurisdiction of action of claim and delivery when value of property involved, if title thereto be in issue, and damages claimed for wrongful detention thereof, or damages claimed alone, when title is not in issue, do not exceed $500 (I. C. A., secs. 7-222, 7-1104; Const., art. 5, secs. 2, 21).

8. Demurrer, to extent that it is based on facts not appearing in complaint, but sought to be added to allegations thereof for purpose of defeating cause of action, is "speaking demurrer" and is improper.

APPEAL from the District Court of the Ninth Judicial District, for Bonneville County. Hon. C. J. Taylor, Judge.

Action in claim and delivery to recover an automobile, or its value in case possession thereof could not be had. Judgment for plaintiff. Affirmed.

Judgment affirmed. Costs to respondent.

C. E. Crowley and Newel S. Crowley, for Appellant.

Probate courts, in Idaho, are limited, in their civil jurisdiction, to cases wherein the "Debt or damage claimed does not exceed the sum of $ 500.00," and there is no provision of the constitution or statutes giving these courts jurisdiction of any case involving the title or right to possession of personal property. The legislature cannot enlarge their jurisdiction, which is concurrent with justice courts in criminal matters only. (Art. 5, sec. 21, Const.; sec. 1-1202, I. C. A.; Dewey v. Schreibner Imp. Co., 12 Idaho 280, 85 P. 921.)

Probate courts differ from justice courts, in that the latter are expressly given jurisdiction over personal property actions, not exceeding $ 300 in value. (Art. 5, sec. 22, Const.; sec. 1-1403, I. C. A.)

Jurisdiction of district court on appeal was the same as the probate court. (16 R. C. L., p. 402, par. 80.)

Ralph L. Albaugh and A. A. Merrill, for Respondent.

The probate court has jurisdiction of the subject matter in actions involving title or right of possession of personal property, and an action in claim and delivery can be brought in the probate court under the Constitution and statutes of Idaho. (Art. 5, sec. 21, Const.; sec. 1-1202, I. C. A.; sec. 10-101, I. C. A.)

The instructions of the trial court to the jury are not properly before this court on appeal and should not be considered.

"Instructions given on trial can only be reviewed in Supreme Court when they are saved by a Bill of Exceptions, they being no part of the judgment roll." (Crowley v. Croesus Gold & Copper Min. Co., 12 Idaho 530, 86 P. 536.)

"The judgment-roll alone presents no question as to the sufficiency of the evidence to sustain the verdict, or as to the action of the court in admitting or rejecting testimony offered. (See Haas v. Teters, 19 Idaho 182, 113 P. 96.)"

"Unless the alleged errors of the court in giving and refusing instructions to the jury are presented by the reporter's transcript, they can only be reviewed when saved by a bill of exceptions. (See Crowley v. Croesus Gold & Copper Min. Co., 12 Idaho 530, 86 P. 536.)" (Minneapolis Threshing Machine Co. v. Peterson, 31 Idaho 745, 176 P. 99.)

MORGAN, J. Givens, C. J., and Budge, Holden and Ailshie, JJ., concur.

OPINION

MORGAN, J.

This is an action in claim and delivery commenced and tried in the probate court. Judgment was for plaintiff and defendant appealed to the district court where the case was tried to a jury. That trial resulted in a verdict for plaintiff, upon which judgment was entered that it have, retain and recover from defendant possession of an automobile, the property involved in the action, together with its costs. The case is here on appeal from that judgment.

Counsel for appellant present these points:

"1. That the probate court had no jurisdiction of claim and delivery actions.

"2. That the complaint in this case failed to state a cause of action.

"3. Failure of the court to properly instruct the jury.

"4. Insufficiency of the forms of verdicts given to the jury."

The record on appeal consists of a copy of the judgment roll and of certain other files in the office of the clerk of the district court, specified in the praecipe, but does not contain a transcript of the evidence. Certain documents, apparently admitted in evidence, transmitted by the clerk of the district court, have been submitted for our consideration, but, in the absence of testimony identifying them and showing what bearing, if any, they have on the case, they cannot be considered proof of anything at issue.

The following documents called for by the praecipe are incorporated in the record, and are designated by appellant:

"Defendant's Requested Instruction No. 5."

"Court's Instruction to Jury No. 11."

"Verdict of the Jury."

"Form of Verdict of the Jury for the defendant, submitted by the Court to the Jury."

Appellant asks us to review the action of the trial judge in refusing to give requested instruction No. 5 and in giving instruction No. 11; also in submitting forms of verdict which permitted the jury to find for plaintiff without finding the value of the property involved.

Requested instruction No. 5, which was marked by the judge "Refused Not The Law Applicable," and instruction No. 11, which was given, are as follows:

No. 5. "The jury is instructed that if you find in this case that the value of the automobile in question exceeded $ 500.00 on November 5, 1934, then your verdict should be for the defendant."

No. 11. "If your verdict in this case is for the defendant, you will then be required to determine the value of the car at the time it was repossessed by the plaintiff."

In the absence of a bill of exceptions and of a reporter's transcript, settled by the trial judge, it is impossible for us to say what evidence was introduced, if any, with respect to the value of the automobile. The record contains no evidence in support of the allegation that it was of a value in excess of $ 500, which is the limit of the jurisdiction of the probate court in civil actions. It is alleged in the complaint that it was of the value of $ 440.70, and in the answer that its actual value was more than $ 500, but we cannot assume there was evidence which would make necessary the giving of requested instruction No. 5, or would render prejudicial to appellant the giving of instruction No. 11.

In Gropp v. Huyette, 35 Idaho 683, 208 P. 848, the fourth section of the syllabus is:

"Where there is no statement, bill of exceptions or reporter's transcript properly settled in the record on appeal, it will only be examined for fundamental errors, and if in any view of the record the judgment below can be upheld, it will be affirmed."

See, also, Bergh v. Pennington, 33 Idaho 726, 198 P. 158, and Baldwin v. Singer Sewing Machine Co., 48 Idaho 596, 284 P. 1027.

Requested instructions are properly refused when they are not based on evidence in the case. (Johnson v. Fraser, 2 Idaho 404, 18 P. 48; Stine Lumber & Shingle Co. v. Hemenway, 33 Idaho 384, 194 P. 850; Newman v. Oregon Short Line R. R. Co., 34 Idaho 417, 201 P. 710; Carlson v. Ozmun, 44 Idaho 500, 258 P. 1078.)

What has been said with respect to instructions applies to forms of verdict provided by the judge for use by the jury. The verdict returned is:

"We, the jury, duly impaneled and sworn to try the above entitled cause, find for the plaintiff.

"Dated this 23 day of March, 1935.

"Frank B. Cole,

"Foreman."

That form was given to the jury by the judge, together with this:

"We, the jury, duly impaneled and sworn to try the above entitled cause, find for the defendant, and fix the value of the property at $ .

"Dated this day of March A. D. 1935.

,

"Foreman."

Appellant insists he was entitled to have a form of verdict given to the jury which would show its decision as to the value of the property if it found for the plaintiff, for, in case it found the value to be more than $ 500, the amount involved would be in excess of the jurisdiction of the probate court and the action...