Putnam v. Putnam

• Decision Date: 18 April 1890
• Docket Number: Civil 271
• Citation: 3 Ariz. 182,24 P. 320
• Parties: J. D. PUTNAM, Plaintiff and Appellee, v. C. D. PUTNAM et al., Defendants, Interveners and Appellants [*]
• Court: Arizona Supreme Court

24 P. 320

3 Ariz. 182

J. D. PUTNAM, Plaintiff and Appellee, v. C. D. PUTNAM et al., Defendants, Interveners and Appellants ^[*]

Civil No. 271

Supreme Court of Arizona

April 18, 1890

APPEAL from a judgment of the District Court of the Second Judicial District in and for the County of Pinal. William W. Porter Judge.

Dismissed.

G. H Oury, and E. J. Edwards, for Appellants.

H. B Summers, and Baker & Campbell, for Appellee.

Kibbey, J. Wright, C. J., concurs. Sloan, J., took no part in the consideration of this appeal.

OPINION

The facts are stated in the opinion.

KIBBEY, J.

This was an action in the lower court, by J. D. Putnam against C. D. Putnam, for a dissolution of a partnership alleged to have theretofore existed between them, and for an accounting, and praying for an injunction restraining the sheriff of Pinal County from selling a band of cattle, alleged to be partnership property, which had been levied upon and advertised at the instance of the intervener. The appellants, Sutherland et al., intervened, alleging themselves to be creditors of C. D. Putnam, denying the existence of the partnership, and claiming the property levied upon to be the individual property of C. D. Putnam, and therefore subject to levy and sale for the payment of their demands. There was a finding and judgment for the plaintiff, appellee, and against C. D. Putnam and the appellants Sutherland et al.

Upon an examination of the record, we cannot determine whether we have jurisdiction of the case. The statute requires, as essential to the right of appeal, that an appeal bond, or affidavit in lieu thereof, shall be filed within twenty days after the expiration of the term at which the final judgment was rendered. Rev. Stats. 1887, sec. 849. The judgment in this case was rendered on the 30th of October, 1888. The appeal-bond was filed on the 6th of February, 1889. We know judicially that a term of the district court for Pinal County began on the first Monday in October, 1888, but we can only know from the record when that term adjourned. The record in this case is silent upon the subject. The transcript should contain a copy of the order of adjournment of the term, in order that it may appear whether the appeal-bond was filed in time to perfect the appeal. Burr v. Lewis, 6 Tex. 76. (Compare Lose v. Doran, post, p. 284, 73 P. 443.) It is the duty of the appellants to see that a proper transcript of the cause is prepared, and filed in this court. We cannot supply by presumption omissions of statements of facts essential to the right of appeal. The appeal-bond, as it appears in the transcript, is defective. It is as follows: "Title of the court and cause. [sic] Whereas, the interveners in the above-entitled action have appealed to the supreme court of the territory of Arizona from a judgment made and entered in said cause against them in said court, and in favor of the plaintiff, on the thirtieth day of October, 1888, for the sum of $ 205.75 costs, and also adjudged that certain property was not subject to the demand of said interveners, and the court having fixed the amount of the bond on appeal in the sum of one thousand dollars: Now, therefore, in consideration of such appeal, we, the undersigned residents of Pinal County, in said territory of Arizona, do hereby jointly and severally undertake and promise, on the part of the appellants, that they prosecute their appeal unto effect, and, in case the judgment of the appellate court shall be against them, that they will perform its judgment, sentence, or decree, and pay all such damages as may be awarded against them upon the appeal. Witness our hands this ninth day of January, 1889. Thomas F. Weiden. John C. Loss." A simple inspection of the above instrument discloses its defects. The judgment appealed from is not described. Neither the court wherein it was rendered, nor any of the parties to the record, are anywhere mentioned. It is possible that there is a caption to the original bond filed with the clerk, reciting the name of the court, and the names of the parties, and that a reference to it might supply the defects mentioned. If so, and if those defects might be so remedied, then the caption is an essential part of the appeal-bond, and should have been copied into the transcript. The appeal-bond should state the names of all the parties to the judgment. Jenkins v. McNeese, 34 Tex. 189; Chandler v. Sappington, 36 Tex. 272; Estate of O'Hara, 60 Tex. 179. We cannot, as we have before said, supply the omission by presumption.

The bond is defective in another particular. The statute prescribed (Rev. Stats. 1887, sec. 863,) that the bond shall be payable to the appellee in a sum double the amount of the judgment and costs. The bond in this case is not made payable to the appellee, nor is it for any sum whatever. The recital in the bond indicates that the court fixed the sum in which it should be given. The statute prescribes the sum, and an order of court fixing it is not only unnecessary, but it is nugatory; and, if the order fixed an amount materially in excess of the amount required by the statute, and in pursuance of such order a bond was given in such excessive sum, the bond, on account of the imposition of the excessive condition, might be void, and the party's right of appeal thereby jeopardized. The appellee is entitled to a bond that substantially complies with the statute, and that is not subject to defenses for want of such compliance. Janes v. Langham, 29 Tex. 413; Janes v. Reynolds, 2 Tex. 250. We do not decide that this bond is void because of the excess in penalty, but suggest it simply to illustrate the danger of a departure from the plain statutory provisions in such particulars.

There is no proper assignment of errors in the record.

There is appended to a paper copied into the transcript, and immediately following the signature of the trial judge thereto, a statement that the "interveners specify the following particulars wherein the evidence in said cause is insufficient to justify said decision and judgment of the court: (1) The evidence is insufficient to justify said decision for the reason that it appears from the testimony . . . that the partnership had been dissolved; . . . that C. D. Putnam had disposed of his interest in said cattle prior to the levy. . . . (2) That the evidence is insufficient to justify said decision for the reason that it appears from the testimony of . . . that the partnership . . . had been dissolved long prior to said levy. (3) The evidence is insufficient to justify said decision," etc. This statement is not signed by any one, nor do the names of the appellants appear anywhere therein, and the paper to which it is appended is indorsed: "Statement of the case to be used on appeal." The statute requires the filing of an assignment of errors by the appellant or plaintiff in error. It should be a separate and distinct paper, signed by the party assigning the errors or by his attorney, and be filed with the clerk of the court below before the appellant takes the transcript from the office, and a copy of it be attached to the transcript. Rev. Stats. 1887, sec. 940. This statement, we think, is not an assignment of errors, either in name or in form, and the case should be affirmed for appellant's failure to file an assignment of errors. This court is not bound to notice errors not properly assigned, and will not ordinarily do so. Geiselman v. Brown, 30 Tex. 760; Coburne v. Poe, 40 Tex. 410; Murchison v. Holly, 40 Tex. 439. And, in the absence of an assignment of error, the court is ordinarily justified in either affirming the judgment, or dismissing the appeal. Dyer v. Dement, 37 Tex. 431; Burns v. Wiley, 35 Tex. 20; Chevallier v. Whitaker, 8 Tex. 204.

If however, we could treat the statement mentioned as a proper assignment of errors, we are confronted with another important question of practice; and for the purpose of considering it, we will assume that the errors are properly assigned. It is assigned as error that the evidence is insufficient to justify the decision of the court below. This error, if it is error, is good cause for a new trial. Our Code (sec. 833) provides that new trials may be granted on motion for good cause shown; and section 593 (cl. 2) confers upon this court jurisdiction to review an order granting or refusing a new trial, sustaining or overruling a demurrer, or affecting a substantial right in an action or a proceeding. The only relief that appellants ask in this court, and all that this court can grant, is a new trial of the cause in the trial court. If it be true that the evidence is insufficient to warrant the decision, it is error. If it is error, we must presume that the court below would, upon application, have corrected it. If, however, the court below had denied the motion for a new trial, such ruling could have been presented here for review. It is provided by the statute that the only remedy appellants seek here may have been awarded to them by the court below on motion. That method is prompt, efficacious, and inexpensive; and we think the appellants should first resort to it before coming to the appellate court. In a very early case in Texas the supreme court of that state (Foster v. Smith, 1 Tex. 70) say: "We will here take occasion to say that according to what is believed to be the correct rule of practice, no judgment ought to be reversed in this court, merely on the ground that the verdict was not supported by the testimony, unless a motion had been made in the court where the verdict was rendered for a new trial and overruled." And see, also, following this case, Hart v. Ware, 8 Tex. 115; King v. Gray, 17 Tex. 62; Pyron v. Grinder, 25 Tex. 159; Cain v. Mack, 33 Tex. 135; Harrell v. Mexico Cattle...