Shurtliff v. Extension Ditch Co.

• Decision Date: 03 March 1908
• Citation: 14 Idaho 416,94 P. 574
• Parties: G. W. SHURTLIFF, Respondent, v. THE EXTENSION DITCH CO., Appellant
• Court: Idaho Supreme Court

94 P. 574

14 Idaho 416

G. W. SHURTLIFF, Respondent, v. THE EXTENSION DITCH CO., Appellant

Supreme Court of Idaho

March 3, 1908

BILL OF EXCEPTIONS-MOTION TO STRIKE-DOCUMENTS REFERRED TO IN BILL-MADE PART OF BILL BY REFERENCE-IDENTIFICATION OF DOCUMENTS-SUFFICIENCY OF FINDING OF FACTS-CONCLUSION OF LAW-COMPLAINT-AMENDED COMPLAINT-ADMISSION OF COMPLAINT IN EVIDENCE-HOW CONSIDERED.

1. Where a bill of exceptions is prepared, which makes the original complaint and the demurrer thereto parts of said bill by reference, it is not necessary that such complaint and demurrer be copied in the bill before the same is settled.

2. When a written document is sought to be made a part of a bill of exceptions by reference, and not by copy, it must be so described by its date, amount, parties or other identifying features that the transcribing official or person can readily and with certainty determine from the description itself what document is referred to.

3. Pence v. Lemp, 4 Idaho 526, 43 P. 75, and Hattabaugh v Vollmer, 5 Idaho 23, 46 P. 831, cited and distinguished.

4. Held, that the finding of facts and conclusion of law are sufficient to support the judgment.

5. A finding of fact which finds that the damages sought to be recovered accrued within the period covered by the statute of limitations immediately prior to the commencement of the action, when such statute is made a defense, is a sufficient finding on such defense and negatives it.

6. When an amended complaint is filed which supersedes the complaint it is error for the court to reject the complaint when it is offered in evidence to show that some statements or allegations in it contradict the allegations made in the amended complaint. This error, however, is cured by oral evidence of the same facts desired to be shown by the complaint.

(Syllabus by the court.)

APPEAL from the District Court of Seventh Judicial District for Washington County. Hon. Frank J. Smith, Judge.

Action to recover damages for the permanent destruction of thirty acres of real estate. Judgment for plaintiff. Affirmed.

Judgment affirmed, with costs in favor of respondent.

Richards & Haga, for Appellant.

A finding of fact should state the ultimate facts found with the same certainty and definiteness as would be required in a pleading. (Van Riper v. Baker, 44 Iowa 450; Fanning v. Murphy, 126 Wis. 538, 110 Am. St. Rep. 946, 105 N.W. 1056 4 L. R. A. N. S., 666.)

Findings of fact and conclusions of law must be separately stated, signed and filed. (Secs. 4406, 4407, Rev. Stat.; Cal. Iron Constr. Co. v. Bradbury, 138 Cal. 328, 71 P. 346; Musselman v. Musselman, 140 Cal. 197, 73 P. 824.)

An original complaint, superseded by an amended complaint, is admissible in evidence as an admission made by the plaintiff. (2 Wigmore Ev., sec. 1067; 1 Elliott on Ev., sec. 236; Bloomingdale v. DuRell, 1 Idaho 33; Pence v. Sweeney, 3 Idaho 181, 28 P. 413; 1 Jones on Ev., sec. 275; In re O'Connor's Estate, 118 Cal. 69, 50 P. 5; Sayre v. Mahoney, 35 Ore. 141, 56 P. 526; 1 Am. & Eng. Enc. L. 719; Killpatrick etc. Co. v. Box, 13 Utah 494, 45 P. 629; Lane Imp. Co. v. Lowder, 11 Okla. 61, 65 P. 926.)

A. A. Fraser, for Respondent.

The finding need not be directly and pointedly made that each of the several allegations of the complaint or answer is not true. But if the court finds such facts as will be sufficient to necessarily determine every material issue in the cause, the requirement of the law will, in that respect, be satisfied. (Tage v. Alberts, 2 Idaho 271 (249), 13 P. 19; Schroeder v. Jahns, 27 Cal. 281; Malone v. Del Norte Co., 77 Cal. 217, 19 P. 422; Roberts v. Haley, 65 Cal. 402, 4 P. 385; McCortney v. Fortune, 57 Cal. 617.)

"If a complaint sets forth two or more grounds for relief, either of which is sufficient to support a judgment in favor of plaintiff, a finding upon one of the issues thus made is sufficient, and a failure to find upon the other does not constitute a mistrial, or render the decision against the law." (Spelling on New Trial and App. Prac., sec. 594.)

"It is not error to fail to make a finding upon defendant's case, when an affirmative finding in the plaintiff's case is wholly inconsistent with the truth of the case set up by defendant." (Snelgrove v. Earl, 17 Utah 321, 53 P. 1017; Fox v. Haarstick, 156 U.S. 674-679, 15 S.Ct. 457, 39 L.Ed. 576; Haarstick v. Fox, 9 Utah 110-123, 33 P. 251; Brison v. Brison, 90 Cal. 323, 27 P. 186; Maxfield v. West, 6 Utah. 327, 23 P. 754; Spencer v. Van Cott, 2 Utah 337; Maynard v. Locomotive etc. Assn., 16 Utah 145, 67 Am. St. Rep. 602, 51 P. 259; Kisling v. Shaw, 33 Cal. 425, 91 Am. Dec. 644; Malone v. Del Norte Co., 77 Cal. 217, 19 P. 422; Diefendorff v. Hopkins, 95 Cal. 343, 28 P. 265, 30 P. 549; Himmelman v. Henry, 84 Cal. 104, 23 P. 1098.)

SULLIVAN, J. Ailshie, C. J., and Stewart, J., concur.

OPINION

SULLIVAN, J.

This is an action to recover damages alleged to have been sustained by the permanent destruction of about thirty acres of the respondent's land by water from a waste-ditch alleged to be owned by the appellant. The action was tried by the court without a jury and judgment was rendered in favor of the respondent for $ 453.50. The appeal is from the judgment.

Respondent moves to strike from the transcript the bill of exceptions for the reason that it is not complete; that it is a skeleton bill of exceptions and was not signed by the trial judge after it was engrossed; that said bill of exceptions has inserted therein the documents entitled "Defendant's Exhibits 3 and 4," which documents were not incorporated in the bill of exceptions filed in the trial court and are not incorporated in the original bill of exceptions as signed by the trial judge.

In support of said motion, it is contended that the original bill of exceptions as settled by the judge did not contain said exhibits 3 and 4; that this court has no means of knowing that said exhibits are true and correct copies of the originals. It appears that the action was tried on an amended complaint and during the trial the defendant offered in evidence the original complaint which was marked "Defendant's Exhibit 3." And it further appears that defendant demurred to the original complaint, which demurrer was also offered in evidence on the trial and identified and marked as "Defendant's Exhibit 4," and on the trial the court refused to admit said exhibits. In the bill of exceptions settled by the court, those two exhibits were not inserted, but in the bill it was stated that said complaint and demurrer were offered in evidence, and under objection the court refused to admit them, and the places in said bill where said exhibits were to be inserted were indicated in the bill as settled and allowed. Said exhibits were fully identified in the bill of exceptions just preceding where they were to be inserted. It appears to us that the identification of said exhibits is so certain and complete as to admit of no question as to the identity of the particular papers to be inserted, which papers were a part of the files of this case.

We recognize the rule that no part of the contents of the bill of exceptions should rest upon the discretion of the clerk or on the recollection of the judge or counsel, but every part of it must be made specific and certain. Then the question arises under our practice, in order to insure the required certainty, is it essential that everything be written out in full in the statement or bill of exceptions? Must every document or paper filed in the case desired to be contained in such bill be copied into the bill before the judge's signature settling the same is attached thereto? We concede that the judge settling the bill might require that to be done and refuse to settle the bill until it is done. In discussing this question, the supreme court of Kansas in Atchison & N. R. R. Co. v. Wagner, 19 Kan. 335, said:

"But to insure this certainty, is it essential that everything be written out in full, every document and writing copied into the bill before signature? Such appears to be the import of some of the authorities cited; but that seems to us unnecessary stringency, and to impose needless clerical labor. Where a deposition or other writing is to be made a part of a bill, it can be referred to with such marks of identification as to exclude all doubt. That surely ought to be sufficient; and so we think the better authorities hold."

In the case at bar, the complaint and demurrer referred to were so identified as to exclude all doubt of what papers were referred to. (See Garrick v. Chamberlain, 94 Ill. 588.) The supreme court of Kentucky in Garrott v. Ratliff, 83 Ky. 384, in discussing this question and also the question of mistakes in the papers so referred to in a bill of exceptions, said:

"This was the proper way of making out the bill, and when counsel attempts to show a failure of the clerk to identify the instructions when making up the record, they must come with an affidavit showing that the instructions found in the bill were not those given or refused. (Meaux v. Meaux, 81 Ky. 475.)"

In Alabama etc. R. R. Co. v. Dobbs, 101 Ala. 219, 12 So. 770, the court said:

"We settled the principle in the beginning, and have not departed from it since, that, 'when a document is sought to be made a part of the bill of exceptions by reference, and not by copy, it must be so described by its date, amount, parties or other identifying features, that the transcribing officer can, unaided by memory, readily and with certainty determine, from the description itself, what document or paper is referred to, without room for mistake.'"

In the case at bar there is no contention that the exhibits inserted were not the proper and correct exhibits. In Sprott...