The Syndicate Improvement Company v. Bradley

• Decision Date: 08 January 1896
• Citation: 6 Wyo. 171,43 P. 79
• Parties: THE SYNDICATE IMPROVEMENT COMPANY v. BRADLEY
• Court: Wyoming Supreme Court

43 P. 79

6 Wyo. 171

THE SYNDICATE IMPROVEMENT COMPANY v. BRADLEY

Supreme Court of Wyoming

January 8, 1896

On application for counsel fee and additional interest to defendant in error, March 3, 1896.

Commenced in District Court, November 24, 1893.

ERROR to the District Court for Natrona County, HON. J. H. HAYFORD Judge.

This was an action brought by Chester B. Bradley against the Syndicate Improvement Company for the recovery of money alleged to be due for services performed and money expended at the request of the defendant. Judgment was rendered for the plaintiff, and defendant prosecuted error. The amended petition was filed May 15, 1894, and an answer was filed May 17, 1894. The cause was tried May 18, 1895. The evidence taken upon the trial was not preserved nor brought to the appellate court. The material facts connected with the errors assigned are sufficiently stated in the opinion.

Affirmed.

R. W Breckons, for plaintiff in error, argued and contended that the judgment should be reversed on the ground that the trial was an ex parte proceeding solely. It was contended that the record showed that the case had not been set for any particular day, and that no notice of the time when the case would be called for trial was in any way given to the plaintiff in error, and cited Culver v. Felt, 4 Roberts, 681; 30 How., 442; Tracey v. Co., 1; E. D Smith, 356; 18 A. 968; Blair v. Munson, 9 Ind. 357; 2 Metc. (Ky.), 443; 11 Miss. 127; Clegg v. Fithian, 32 Ind. 90. Further, that the court erred in refusing to allow a jury. It was insisted that the record did not show that there had been any formal call of the docket at which a demand or waiver might have occurred, but the contrary, and that no judgment can be sustained where the record does not affirmatively show that a jury trial was waived by both parties. (Biggs v. Lloyd, 11 P. 831; Woods v. Tanquavay, 34 P. 737.) In a case like the one at bar no motion for a new trial was necessary. It was also urged that error was committed in denying a change of judge, for the reason that the application was made as soon as the attorney for plaintiff in error knew the cause was being tried.

Lacey & Van Devanter for defendant in error.

It is thus admitted by the opposing brief that neither the demand for a jury trial nor the application for a change of judge was made until after the trial had begun and after a witness had been sworn and was being examined. No exception was taken to the rulings of the court respecting either the demand for a jury trial or the application for a change of judge. No motion for a new trial was made. Time was not taken within which to present a bill of exceptions, no bill of exceptions was presented or allowed, and none is contained in the record. No question is raised respecting the pleadings, or the character of the judgment rendered. The only questions discussed in the opposing brief are, first, that a trial was had in the court below without notice to the defendant; second, that the defendant was denied a jury trial; and third, that the defendant's application for a change of judge was denied.

A trial without notice to one of the parties, a denial of trial by jury when rightly demanded, and a denial of an application for change of judge, would each of them be embraced within the terms "irregularity in the proceedings of the court by which a party was prevented from having a fair trial," which is a ground for a new trial. Not having been assigned as grounds for new trial, they have been waived, and can not now be assigned as independent errors. In order to lay the foundation for available error the party asking a jury must cause the record to show a due request, refusal, and exception. (Griffin v. Pate, 63 Ind. 273; Ketcham v. Brazil Co., 88 Ind. 515; Sheets v. Bray, 125 Ind. 33; Elliott App. Pro., 612. Motions and affidavits--such as those for change of judge--with the rulings thereon are not part of the record except when brought into it by bill of exceptions.

Boulter v. State, Decided November 19, 1895; Perkins v. McDowell, 3 Wyo., 328; France v. First National Bank, 3 Wyo., 187; Johnston v. Little Horse Creek, 4 Wyo., 164; Seibel v. Bath, 5 id., 409; Rubel v. Wiley, id., 427; Van Horn v. State, id., 501; C. D. Smith Drug Co. v. Casper Drug Co., id., 510; School District v. Western Tube Co., id., 185; Hicks v. Person, 19 O., 426-446; Sleet v. Williams, 21 O. St., 82; Garner v. White, 23 id., 192; Lockhart v. Brown, 31 id., 431; Railway Co. v. Thurstin, 44 id., 525; State v. Sweeney, 68 Mo. 96; Cleland v. Walbridge, 78 Cal. 358.

Every matter complained of constitute in themselves grounds for motion for new trial, and no such motion having been made, and no bill of exceptions taken, no question respecting them is presented by the record.

(Rev. Stat. Wyo., Sec. 2652; Supreme Court Rule 13, authorities supra; Horton v. Wilson, 25 Ind. 316; Berlin v. Oglesbee, 65 id., 308; Douglas v. State, 72 id., 385; Lawless v. Harrington, 75 id., 379; Smith v. Smith, 77 id., 80; Bane v. Ward, id., 153; Sidener v. Davis, 87 id., 343; Compton v. State, 89 id., 338; Seibert v. State, 95 id., 471.)

No exception was taken in the court below to any of the rulings now complained of, and it will therefore be presumed that the rulings were assented to. U. S. v. Trabing, 3 Wyo., 144; Sheets v. Bray, 125 Ind. 33-36.

The burden rests upon plaintiff in error to show affirmatively that error prejudicial to it was committed in the court below. (Elliott App. Pro., 709-713.)

Upon the question of the construction and enforcement of the provisions of Sec. 3130, Rev. Stat., and the application of defendant in error for the allowance of counsel fees and additional interest, the following were cited: (Rev. Stat. Ohio 1880, Sec. 6712; Const. Wyo., Art. 5, Sec. 2, 18; 1 Yaple's Code Pr., 640; Rouse v. Groniger, 2 W. L. M., 272; Kious v. Kious, 2 id., 418; Graham v. Cooper, 17 O., 605; Brady v. Holderman, 19 id., 26; McBride v. Longworth, 14 O. St., 349; U. S. Rev. Stat., Sec. 1010, 966; Rules U. S. Supreme Court, XVII, XVIII, 1 Cranch XVIII; Rule 23 U. S. Sup. Ct.; 108 U.S. 586; Pennywit v. Eaton, 15 Wall., 382; Hall v. Jordan, 19 id., 271; Armory v. Armory, 91 U.S. 356; Whitney v. Cook, 99 id., 607; Peyton v. Heinekin, 131 id., ci; Gibbs v. Diekma, 131 id., clxxxvi; Sire v. Ellithrope Co., 137 id., 579; Gregory Consolidated Co. v. Starr, 141 id., 222; T. & P. Ry. v. Volk, 151 id., 73; Campbell v. Wilcox, 10 Wall., 421; Bank v. Wistar, 3 Pet., 431; Barrow v. Hill, 13 How., 54; Lathrop v. Judson, 19 id., 66; Prentice v. Pickersgill, 6 Wall., 511; Insurance Co. v. Huchbergers, 12 id., 164; Howell's Ann., Mich. Stat., 8979, 8982; 7 Mich. 78; 20 id., 418; 23 id., 22; 25 id., 127; 33 id., 505; 40 id., 457; 61 id., 22; 67 id., 188; 78 id., 135; 64 N.W. 866; 2 Pinney, 203; 20 Wis. 31; 63 N.W. 1047; 2 Deering's Ann., Cal. Code, 957; 2 Cal. 355; 9 id., 44; 10 id., 522; 11 id., 142; 12 id., 449; 41 id., 661; 44 id., 127; 47 id., 581; 79 id., 409; 82 id., 635; 35 P. 1014; 3 Keyes 323; 1 N.Y. 206; 33 id., 296; 38 id., 25; 124 id., 624; 128 id., 594; 126 Mass. 21; 158 id., 590; 9 Pac. (N. M.), 302; 13 id., 179; 3 Mont. 372; 5 id., 535; 6 id., 498; 40 P. 789; 10 La. Ann., 641; 17 id., 77; 20 id., 376; 17 So. (Fla.), 70; 2 Nev. 361; 4 N.D. 164; 51 Minn. 343; 3 Tex. 517; 28 S.W. 95; 29 id., 831; 26 Ark. 656; id., 63; id., 398; 37 Ala. 388; 10 Ind. 7, 8, 32, 40, 82, 164, 251, 502; 136 Ind. 608; 5 Dana (Ky.), 136; 18 B. Mon. 570; 3 Bush., 161; 60 Miss. 242; 77 Ga. 550; 86 id., 9; 32 Mo. 221; 33 id., 405; 33 Mo. App., 343; 40 id., 40.)

GROESBECK, CHIEF JUSTICE. CONAWAY, J., and POTTER, J., concur.

OPINION

GROESBECK, CHIEF JUSTICE.

The plaintiff in error seeks a reversal of the judgment of the trial court in favor of the defendant in error. He assigns six grounds of error: (1) that the trial court erred in overruling a motion made by the plaintiff in error to dissolve the attachment; (2) that the court erred in overruling the motion of the plaintiff in error for a change of judge; (3) that the court erred in refusing the demand of plaintiff in error for a jury trial; (4) that the cause was called for trial and tried without notice to the plaintiff in error; (5) that judgment was rendered for the plaintiff below when it should have been rendered for the defendant; and (6) that the judgment was rendered on a trial without notice to the defendant.

1. The action of the trial court in sustaining the attachment can not be reviewed. There is no bill of exceptions containing the evidence produced upon the hearing of the motion to dissolve. The affidavits, motions, and other papers in the attachment proceedings are attempted to be brought into the record by copies thereof certified to by the clerk of the court, but as such matters are not part of the record proper they can only be made a part of the record by a bill of exceptions. It does not appear that the affidavits contain all of the evidence adduced at the hearing of the motion to dissolve the attachment, and it must appear that all of the evidence is before us that was before the court or judge hearing such motion. An exception was taken to the ruling of the court sustaining the attachment, but no time was asked or allowed within which to prepare and present to the court or its judge in vacation a bill of exceptions, and no bill is in the record. There is no proper record before us, and all the alleged errors are waived by the failure to preserve the exceptions by asking and obtaining time for the preparation and presentation of the bill. Smith Drug Co. v. Casper Drug Co., 40 P. 979. (5 Wyo. 510.) Counsel for plaintiff in error abandons this assignment of error by making no reference to it in his brief, and it would not have been considered if he...