Rollins v. Duncombe

• Decision Date: 10 June 1916
• Docket Number: 862
• Citation: 157 P. 896,24 Wyo. 341
• Parties: ROLLINS, ET AL., v. DUNCOMBE
• Court: Wyoming Supreme Court

157 P. 896

24 Wyo. 341

ROLLINS, ET AL., v. DUNCOMBE

No. 862

Supreme Court of Wyoming

June 10, 1916

ERROR to District Court, Uinta County; DAVID H. CRAIG, Judge.

Action by Joseph Duncombe against C. L. Rollins, Sr., and another for the recovery of money paid in purchase of certain sheep from defendant, the title of which were in another. Other material facts are stated in the opinion.

Affirmed.

Abraham Crawford and P. W. Spaulding, for plaintiffs in error.

The evidence offered as to the identity of the sheep was incompetent and should have been precluded. (Jones on Evi 2nd Ed., Sec. 297, p. 375; Jones on Evi., Secs. 344, 345.) The judgment and verdict should be reversed on account of errors in admitting incompetent evidence. (Armour & Co. v. Kollmeyer, 16 L. R. A. (N. S.) 1111, 161 F. 78.) The admission of incompetent and hearsay evidence undoubtedly influenced the jury and was prejudicial error. (Zucker v Whiteridge, 41 L. R. A. (N. S.) 683 at 695, 205 N.Y. 50, 98 N.E. 209.) The fact that the record does not contain all of the evidence is no reason for not reviewing exceptions to the erroneous admission of evidence. (2 R. C. L. 133; Appeal and Error, Sec. 108.) The court erred in permitting the jury to go out and examine certain sheep at some place still unknown to defendants and their counsel; the order for this inspection was oral and did not appear of record. Lee Chesney, a witness, accompanied the jury and made statements to the jury out of the presence of defendants and their counsel, all of which was misconduct and reversible error. (Wigmore on Evi., Vol. 3, Sec. 1802 (2), p. 2327.) Instruction No. 4 given on behalf of plaintiff was erroneous; the instruction is indefinite as not indicating what sheep plaintiff may recover for. Where the evidence is conflicting the instructions must be accurate. (Brickwood Sackett on Instructions, Vol 1, Sec. 172.) Only a portion of the sheep were alleged to be the property of Chesney Sheep Company. Interlineations made by the court on the face of this instruction resulted in making it even more indefinite and incapable of being understood. Moreover, the instruction does not state the correct rule of law. The presumption was that error was prejudicial unless the contrary be shown. (2 R. C. L. 235.) Instructions may be reviewed in the absence of evidence. (Red Men's Fraternal Assn. v. Rippey, 50 L. R. A. (N. S.) 1007, 104 N.E. 641 (Ind.)

B. M. Ausherman, for defendant in error.

The bill of exceptions does not set forth anything for the consideration of this court, and should be stricken. (State v. Craig, 15 Wyo. 445, 89 P. 584.) The bill does not contain the evidence necessary to explain the exceptions complained of and is defective. (Callahan v. E. O. Houck & Co., 14 Wyo. 201, 83 P. 372; Iowa State Savings Bank v. Henry, et al., 22 Wyo. 189, 136 P. 863.) The objection to instructions based on evidence cannot be reviewed without the evidence, and it appears from the certificate of the judge that only a portion of the evidence is contained in the record in the bill. (3 Cyc. 171.) The bill of exceptions does not contain an objection and exception to the order permitting the jury to inspect the sheep; the only presentation of this fact is by an ex-parte affidavit by Abraham Crawford of counsel; the objection is not properly presented. The verdict in this case was merely advisory. (Lellman v. Mills, 15 Wyo. 149, 87 P. 985.) Exceptions will be disregarded unless material and prejudicial to the substantial rights of the party excepting. (Section 4599, Comp. Stats 1910; Hilliard v. Douglas Oil Fields, 20 Wyo. 215, 122 P. 626.) None of the exceptions alleged are properly presented for review.

SCOTT, JUSTICE. POTTER, C. J., and BEARD, J., concur.

OPINION

SCOTT, JUSTICE.

This action was brought by defendant in error, hereinafter called plaintiff, to recover from plaintiffs in error, hereinafter called defendants, moneys paid by plaintiff to defendant as the purchase price for certain sheep sold and delivered by defendants to plaintiff and afterwards claimed by plaintiff to be the property of the Chesney Sheep Company, a partnership, and not the property of the defendants when sold and delivered by defendants to plaintiff, and that plaintiff had been obliged to return the sheep to the Chesney Sheep Company. The case was tried to a jury which returned a verdict in favor of the plaintiff and against the defendants for the sum of $ 1,000, upon which judgment was rendered in favor of the plaintiff. The defendants bring error.

1. A written motion is submitted in connection with the submission of the proceedings in error in this case to strike the bill of exceptions from the record for the reason that it does not contain all of the evidence which was given upon the trial, and to dismiss the appeal. We think the motion so submitted calls attention to the fact that all errors assigned cannot be here considered in the absence of all the evidence. That is not, however, a ground for striking the bill. Our attention is inevitably called to the certificate of the presiding judge to the bill of exceptions, the last sentence of which certificate reads as follows: "Said bill of exceptions contains only a small portion of the evidence in said case." The certificate of the judge is necessary to give life and verity to the bill, and where any question is presented to this court which calls for the consideration of the evidence then all of the evidence bearing on the question must be so presented and so certified to entitle it to consideration.

The question has been many times decided in this jurisdiction. It is said in State v. Craig, 15 Wyo. 439 at 445, 89 P. 584, that the statute providing that "No particular form of exceptions is required, but that the exception must be stated with the facts, as briefly as possible, is not satisfied with anything less than all the evidence bearing on and which is necessary to explain the exception or error complained of." In Callahan v. Houck & Co., 14 Wyo. 201, 83 P. 372, this court said that the omission of the certificate to a bill of exceptions to state that the bill contains all the evidence is a defect in the bill itself. In Iowa State Savings Bank v. Henry, et al., 22 Wyo. 189, 136 P. 863, the doctrine is again reiterated as follows, viz: "The certificate of the trial judge to the bill in this case recites that it 'contains all of the material evidence offered, given and introduced in said cause,' and it does not appear anywhere in the bill by recital or otherwise that it contains all the evidence given upon the trial." This rule is statutory and Sec. 4598 of the Compiled Statutes so requires.

It is attempted to predicate error upon the admission and rejection of evidence over defendants'...