Steve v. Bonners Ferry Lumber Co.

• Decision Date: 09 May 1907
• Citation: 13 Idaho 384,92 P. 363
• Parties: ALBERT STEVE, Respondent, v. BONNERS FERRY LUMBER COMPANY, Appellant
• Court: Idaho Supreme Court

92 P. 363

13 Idaho 384

ALBERT STEVE, Respondent, v. BONNERS FERRY LUMBER COMPANY, Appellant

Supreme Court of Idaho

May 9, 1907

RECORD ON APPEAL-NOTICE OF INTENTION TO MOVE FOR A NEW TRIAL-ORDER EXTENDING TIME FOR PREPARATION OF STATEMENT-MOTION FOR NEW TRIAL-IDENTIFICATION OF PAPERS USED ON MOTION FOR NEW TRIAL.

1. Under the provisions of sections 4443 and 4820 of the Revised Statutes, notice of intention to move for a new trial is not made a part of the record on appeal from the order granting or denying the motion, and it is not necessary that such notice be incorporated in the statement unless the adverse party objects to its sufficiency for some reason, and has his objection settled and incorporated in a bill of exceptions or statement.

2. Orders extending time for the preparation of the statement or bill of exceptions are not a necessary part of the record on appeal, and it is not necessary that they be included in the statement on motion for a new trial.

3. Where a trial court has passed upon a motion for a new trial it will be presumed, in the absence of a showing to the contrary, that a proper notice of intention to make such motion had been filed and served, and that a motion for a new trial was properly made and presented to the court or judge thereof.

4. Under the provisions of sections 4443, 4820 and 4821 of the Revised Statutes, it is essential that one who appeals from an order granting or denying a motion for a new trial should furnish the appellate court with a proper certificate identifying the papers, records, files and other matter presented to and used by the trial judge upon the hearing and consideration of such motion, and upon failure on the part of the appellant to furnish such certificate, his appeal from the order granting or refusing the motion will be dismissed.

APPEAL from the District Court of the First Judicial District for the County of Kootenai. Hon. Ralph T. Morgan, Judge.

Action to recover damages for personal injury. Judgment for plaintiff. Appeal from an order denying a motion for a new trial dismissed and judgment affirmed.

Judgment affirmed. Costs awarded in favor of respondent.

John P Gray and E. C. Macdonald, for Appellant.

It is reversible error, in an action for personal injuries, for counsel to give the jury to understand that an insurance company is defending the case. (Iverson v McDonnell, 36 Wash. 73-75, 78 P. 202; Manigold v. Black River Traction Co., 81 A.D. 381, 80 N.Y.S. 861; Cosselmon v. Dunfee, 172 N.Y. 507, 65 N.E. 494; Fuller Co. v. Darragh, 101 Ill.App. 664; Sawyer v. Arnold Shoe Co., 90 Me. 369, 38 A. 333; Lowsit v. Seattle Lumber Co., 38 Wash. 290, 80 P. 431.)

When counsel had brought out the fact that Mr. Rickerd was a stockholder, it followed as a matter of course that he was interested in the defendant company, and any further questions were simply for the purpose of prejudicing the jury. It is clear from counsel's own statement that he was not asking about Rickerd's financial interest in this case from good faith, but solely with the purpose to show that a foreign insurance company would have to pay whatever damages were given by the jury.

Since the Montana cases cited by respondent, to the effect that notice of intention to move for a new trial must be incorporated in the statement, have been decided, the Montana court has changed its view, and has practically admitted that, as Montana took the statute from California after it had been considered by the supreme court of California, their court was in error in not having followed the California decisions. (Carr, Ryder & Adams Co. v. Closser, 27 Mont. 94, 69 P. 561; King v. Pony Gold Mining Co., 28 Mont. 74, 72 P. 309.)

The statute of Idaho relating to new trials and appeals was also copied from that of California, and the California construction should be followed here. (Pico v. Cohn, 78 Cal. 387, 20 P. 706; Gage v. Downey, 79 Cal. 143, 21 P. 527; McShane v. Carter, 80 Cal. 312, 22 P. 178; Richardson v. Eureka, 92 Cal. 65, 28 P. 102; Kahn v. Wilson, 120 Cal. 644, 53 P. 24; Nippert v. Warneke, 128 Cal. 503, 61 P. 96; Schneider v. Market Street Ry Co., 134 Cal. 484, 66 P. 734; Beck v. Thompson, 22 Nev. 419, 41 P. 1; Ettien v. Drum (Mont.), 88 P. 659.)

There is no necessity for the orders extending the time for serving statement to be incorporated in the statement, and no provision of law for it. The judge's certificate to the statement recites that the statement was "duly served on the attorneys for the plaintiff in the above-entitled cause within the time extended by this court," and in the absence of any objection by the respondent to the settlement of the statement, or any objection to the hearing of motion for new trial, it may be presumed by this court that the recital contained in the certificate is true. (Hegard v. California Ins. Co., 72 Cal. 536, 14 P. 180, 359.)

Counsel for respondent, having certified that the transcript is true and correct, should not now be heard to contradict themselves and the certificate, especially since they stipulated that the certificate of the clerk might be waived. (Wilson v. Wilson, 6 Idaho 597, 57 P. 708; Moore v. Taylor, 1 Idaho 583, 584.)

The statement on motion for a new trial was settled and certified according to law, and serves both as a statement of the case of a bill of exceptions. (Rev. Stats., sec. 4818; Witter v. Andrews, 122 Cal. 1, 54 P. 276; Towdy v. Ellis, 22 Cal. 650; Forsythe v. Richardson, 1 Idaho 459; Young v. Tiner, 4 Idaho 269, 38 P. 697; Walden v. Murdock, 23 Cal. 540, 83 Am. Dec. 135; Carpentier v. Williamson, 25 Cal. 154.)

The cases of Sandpoint v. Doyle, 9 Idaho 236, 74 P. 861, and Medbury v. Maloney, 12 Idaho 634, 88 P. 81, cited by respondent, were both equity cases, and were necessarily based upon section 4819 of the Revised Statutes.

Edwin McBee, for Repondent.

Under the ruling in Stickney v. Hanrahan, nothing can be considered on this appeal but the judgment-roll, and all the rest must be stricken. The notice of intention to move for a new trial must be incorporated in the statement. (Raymond v. Thexton, 7 Mont. 299, 17 P. 258; Harrigan v. Lynch, 21 Mont. 36, 52 P. 642; Gum v. Murray, 6 Mont. 10, 9 P. 447; Morse v. Boyde, 11 Mont. 247, 28 P. 260; Grinnell v. Davis, 20 Mont. 222, 50 P. 556.)

Every matter not made by statute a part of the record in the case must be made so by a bill of exceptions or statement of facts. (Putnam v. Putnam, 3 Ariz. 182, 24 P. 320.)

Unless the record contains evidence of the service of the notice of motion for a new trial, or it clearly appears from the record that such service was waived, the court has no jurisdiction of the motion. (Calderwood v. Brooks, 28 Cal. 151.)

In the absence of such notice or waiver of the same, the making and filing of a statement does not give the court jurisdiction of the subject matter to grant a new trial, and an order granting a new trial will be reversed. (Bear River Co. v. Boles, 24 Cal. 354; Flateau v. Leubeck, 24 Cal. 364; Elsasser v. Hunter, 26 Cal. 281; Spencer v. Long, 39 Cal. 700.)

The stipulation that counsel entered into herein is not a waiver of any of respondent's rights. It is merely certified that, barring certain exceptions, the transcript is correct, and this does not preclude a denial of the sufficiency of the statement, and does not preclude respondent from making the motions to strike and to dismiss. (Learnard v. Shaw, 114 Cal. 69, 45 P. 1012.)

There is nothing in the record to identify or authenticate in any manner what papers, files, records and documents were used by the district judge in the hearing and determination of the motion for a new trial. (Village of Sandpoint v. Doyle, 9 Idaho 236, 74 P. 861; Medbury v. Maloney, 12 Idaho 634, 88 P. 81.)

There is nothing in the record to show that the purported statement was used on motion for a new trial, and a purported statement not used on a motion for new trial cannot be considered on appeal in any event. (Steffy v. Essler, 6 Idaho 228, 55 P. 239; Jue Sam v. Lord, 83 Cal. 150, 23 P. 225; Brind v. Gregory, 120 Cal. 640, 53 P. 25.)

The case of Witter v. Andrews cannot be considered as overruling the case of Jue Sam v. Lord, for the latter case refers to the former with approval.

Even permitting the statement to stand as a part of the record on appeal from the judgment, there is only one specification of error that could be considered on such appeal, and that is in regard to the question asked Rickerd. The other assignments of error all go to the sufficiency of the evidence, and cannot be considered on an appeal from the judgment unless taken within sixty days from the entry thereof. (Young v. Tiner, 4 Idaho 275, 38 P. 697; Brumagin v. Bradshaw, 39 Cal. 24.)

AILSHIE, C. J. Sullivan, J., concurs.

OPINION

AILSHIE, C. J.

The respondent has moved to strike from the transcript in this case the statement on motion for a new trial, the notice of intention to move for a new trial, motion for judgment non obstante veredicto, and two orders extending time for the preparation of the statement, and also moves for a dismissal of the appeal taken from the order denying a motion for a new trial, and from the order denying a motion for judgment non obstante veredicto. These motions are based on several grounds which we will consider in their order.

It is well enough to note, in the first place, that counsel for appellant admit that the notice of intention to move for a new trial and the two orders extending time for preparation and service of statement on motion for a new trial, and the motion for judgment non obstante veredicto, are not properly included in the transcript, and should be stricken therefrom. The notice of intention to move for a new trial was not incorporated in...