Smith v. Benson

• Decision Date: 02 November 1918
• Citation: Smith v. Benson, 178 P. 480, 32 Idaho 99 (Idaho 1918)
• Parties: GEORGE P. SMITH, Respondent, v. C. H. BENSON, Appellant
• Court: Idaho Supreme Court

178 P. 480

32 Idaho 99

GEORGE P. SMITH, Respondent, v. C. H. BENSON, Appellant

Supreme Court of Idaho

November 2, 1918

APPEAL AND ERROR-MOTION FOR NEW TRIAL-RECORD ON APPEAL.

Where the transcript does not contain a certificate showing what papers, records and files were used and considered on the hearing of a motion for a new trial, an order denying such motion cannot be reviewed upon appeal.

APPEAL from the District Court of the Sixth Judicial District, for Lemhi County. Hon. James R. Bothwell, Presiding Judge.

Action for damages. Judgment for plaintiff. Appeal dismissed.

Appeal dismissed. Costs awarded to the respondent.

O'Brien & Glennon, for Appellant.

"When public land is surveyed by the government and filed upon by a qualified entryman, it ceases to be public land." (Cheney v. Minidoka County, 26 Idaho 471, 144 P 343, 347; Johnson v. Oregon Short Line R. R. Co., 7 Idaho 355, 63 P. 112, 53 L. R. A. 744; Brown v. Kennedy (Union P. Ry. Co. v. Kennedy), 12 Colo. 235, 20 P. 696.)

"When the entry of land is made and the certificate given, the particular land is segregated from the mass of public lands and becomes private property." (Witherspoon v Duncan, 4 Wall. (U.S.) 210, 18 L.Ed. 339; Bardon v Northern P. R. Co., 145 U.S. 535, 12 S.Ct. 856, 36 L.Ed 806; Hastings & D. R. Co. v. Whitney, 132 U.S. 357, 10 S.Ct. 112, 33 L.Ed. 363; Bothwell v. Bingham County, 24 Idaho 125, 132 P. 972, see, also, Rose's U. S. Notes.)

Plaintiff is only entitled to recover the actual damages proved on the trial, and is not entitled to recover speculative damages or to recover for fancied injuries. (Roseborough v. Whittington, 15 Idaho 100, 96 P. 437; Spencer v. Morgan, 10 Idaho 542, 79 P. 459.)

Stevens & Clute and H. E. Ray, for Respondent.

In a case where the evidence is conflicting, and there is substantial evidence to support the verdict, the latter should not be disturbed on appeal. (Baker v. First Nat. Bank, 25 Idaho 651, 139 P. 565; Montgomery v. Gray, 26 Idaho 583, 144 P. 646; Lorang v. Randall, 27 Idaho 259, 148 P. 468; Graham v. Coeur d'Alene & St. Joe Transp. Co., 27 Idaho 454, 149 P. 509.)

MORGAN, J. Budge, C. J., and Rice, J., concur.

OPINION

MORGAN, J.

This appeal is from an order denying a motion for a new trial. The transcript does not contain the certificate required by rule 24 of the rules of practice of this court, showing what papers were submitted to the trial judge and by him used on the hearing of the motion. That rule is as follows:

"The transcript or record on appeal shall show that there is attached to or made a part of all orders made by the judge disposing of a motion for a new trial, or any other contested motion, a certificate substantially as follows, signed by the judge, clerk or attorneys, to wit:

"It is hereby certified that the following papers, to wit: . . . . all of which are of the records or files in this case, were submitted to the judge and by him used on the hearing of the motion for a new trial (or any other contested motion), and constitute all the records, papers and files used or considered by said judge on such hearing."

We have frequently held that, in the absence of such a certificate an order denying a motion for a new trial, or other contested motion, cannot be reviewed. (Dudacek v. Vaught, 28 Idaho 442, 154 P. 995; Walsh v. Niess, 30 Idaho 325, 164 P. 528; ...