Rich v. French

Decision Date20 December 1893
Citation35 P. 173,3 Idaho 727
PartiesRICH v. FRENCH
CourtIdaho Supreme Court

RECORD-MOTION TO STRIKE OUT PARTS OF RECORD-JUDGMENT-ROLL-UNDERTAKING ON APPEAL.-When the transcript contains matter not properly a part thereof, such improper matter will be stricken out on motion. The record on appeal must show that an undertaking on appeal in due form has been properly filed, or that the same has been waived by stipulation of the parties.

(Syllabus by the court.)

APPEAL from District Court, Bear Lake County.

Appeal dismissed, at appellants' costs, and judgment affirmed. Affirmed.

Spence & Chalmers, for Appellants.

If this is an action to quiet title it is fatally defective. It should contain or show the nature or extent of the plaintiff's claim or title. (Bliss on Code Pleading secs. 221, 225, 226.) It is insufficient in that it fails to aver want of notice of conveyance from plaintiff's grantors to defendants. (Lawton v. Gordon, 34 Cal 36, 91 Am. Dec. 670.) It is insufficient, in that it fails to allege that due notice to quit was given prior to the commencement of this action. (3 Wait's Actions and Defenses, 87; 1 Chitty on Pleading, *331; Bushnell v McCauley, 7 Cal. 422.) The defendants were in possession under a deed of warranty duly recorded, and this open and notorious possession by defendants should have put plaintiff on inquiry as to the possessor's interest, and necessitates a notice to quit before an eviction could be decreed as prayed for. (Lestrode v. Bath, 19 Cal 660; Dutton v. Warschauer, 21 Cal. 609, 82 Am. Dec. 765; Landers v. Bolton, 26 Cal. 393.)

Hawley & Reeves, for Respondent.

There being no statement of the case or bill of exception in the record on appeal, the appeal must be heard on the judgment-roll alone. (Clark v. Fitch, 41 Cal. 472; Savings etc. Soc. v. Meeks, 66 Cal. 371, 5 P. 624; Bailey v. Sloan, 65 Cal. 388, 4 P. 349.) If the allegations of the complaint are sufficient to support the judgment, the judgment of the lower court should be affirmed. Every presumption is in favor of the action of the lower court, and it is presumed the evidence fully established the allegations of the complaint. (Gregory v. Nelson, 41 Cal. 289.) It is not necessary for plaintiff to allege the nature and extent of his title. He may do so or not where he alleges ownership in himself. (Stoddard v. Burge, 53 Cal. 394; Idaho Rev. Stats., sec. 4538.)

SULLIVAN, J. Huston, C. J., and Morgan, J., concur.

OPINION

SULLIVAN, J.

This is an attempted appeal from the judgment. Respondent moves to strike from the record appellants' notice of "intention to move for a new trial," also the "notice of settlement of statement," also the order of the court below refusing to settle statement, also "statement on motion for new trial," and "affidavits on motion for new trial, " on the grounds (1) that no statement on motion for new trial was ever settled; (2) that no order was made by the court below either granting or refusing a new trial. Subdivision 2 section 4456, of the Revised Statutes of 1887, provides, in case of this kind, that the judgment-roll shall consist of "the pleadings, a copy of the verdict of the jury or findings of the court or referee, all bills of exceptions taken and filed, and a copy of any order made on demurrer...

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6 cases
  • Williams v. Boise Basin Mining & Development Co.
    • United States
    • United States State Supreme Court of Idaho
    • 28 Junio 1905
    ...a statement or bill of exceptions, as required by statute, will be sustained. (Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Rick v. Franch, 3 Idaho 727, 35 P. 173; v. McCormick, 7 Idaho 524, 64 P. 239; Anderson v. Shoshone County, 6 Idaho 78, 53 P. 105; First Nat. Bank of Lewiston v. Samps......
  • Idaho Comstock Min. & Mill. Co. v. Lundstrum
    • United States
    • United States State Supreme Court of Idaho
    • 14 Diciembre 1903
    ...has been waived by stipulation of parties, and the transcript must contain the certificate of the clerk or the attorneys. (Rich v. French, 3 Idaho 727, 35 P. 173.) Had defendant a lien under section 3445 of the Revised Statutes? The provisions of this section, in so far as they are material......
  • Swanson v. Groat
    • United States
    • United States State Supreme Court of Idaho
    • 6 Marzo 1906
    ...... decided upon the judgment-roll alone. (Graham v. Linehan, 1 Idaho 780; Gamble v. Dunwell, 1. Idaho 268; Ray v. Ray, 1 Idaho 705; Rich v. French, 3 Idaho 727, 35 P. 173; Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Williams v. Boise. Basin M. & D. Co., 11 Idaho 233, 81 P. 646; ......
  • Freeburgh v. Lamoureux
    • United States
    • United States State Supreme Court of Wyoming
    • 20 Agosto 1903
    ...... (Sutherland v. Putnam (Ariz.), 3 Ariz. 182, 24 P. 320; McMeachan v. Christy (Okla.), 3 Okla. 301, 41. P. 382; Rich v. French (Ida.), 3 Idaho 727, 35 P. 173; Perego v. Dodge, 9 Utah 3; 33 P. 221; Hecla Gold. Min. Co. v. Gisborn, 21 Utah 68; 59 P. 518; State ex. ......
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