Van Leeuwen v. Huffaker

• Decision Date: 03 December 1931
• Docket Number: 5021
• Citation: 78 Utah 521,5 P.2d 714
• Court: Utah Supreme Court
• Parties: VAN LEEUWEN v. HUFFAKER

5 P.2d 714

78 Utah 521

VAN LEEUWEN v. HUFFAKER

No. 5021

Supreme Court of Utah

December 3, 1931

Appeal from District Court, Third District, Salt Lake County; J. W McKinney, Judge.

Action by Richard Van Leeuwen against Ray E. Huffaker. From a judgment for plaintiff, defendant appeals.

REVERSED and remanded with directions.

S. D Huffaker, of Salt Lake City, for appellant.

D. B Hempstead, of Salt Lake City, for respondent.

DILWORTH WOOLLEY, District Judge. CHERRY, C. J., STRAUP, J., ELIAS HANSEN and FOLLAND, JJ., concurring. EPHRAIM HANSON, J., being disqualified, did not participate.

OPINION

DILWORTH WOOLLEY, District Judge.

This is an action brought by plaintiff to recover a judgment for a commission alleged to be due a real estate broker. There was a trial before the court and a jury which resulted in a judgment, entered upon a directed verdict, in favor of defendant, from which plaintiff appealed. That judgment was reversed and the cause remanded for a new trial. 74 Utah 441, 280 P. 235. Another trial was had, but before the court sitting without a jury, at the conclusion of which findings of fact and conclusions of law were made and judgment was made and entered thereon in favor of plaintiff. Defendant now appeals from the latter judgment.

The appellant has made twelve assignments of error; but he has said nothing in his brief or in the oral argument about Nos. 6, 7, 8, 10, and 12, or about the questions raised thereunder, and we therefore regard them as having been abandoned and pass them by without further comment thereon. Kelley v. Moab State Bank et al., 64 Utah 290, 230 P. 566; Berg v. Otis Elevator Co. et al., 64 Utah 518, 231 P. 832.

Assignment No. 1 is to the effect that the court erred in denying defendant's motion for a jury trial and in making the following order under date of December 3, 1929:

"The above case is hereby assigned to the Honorable James W. McKinney, Judge, for trial, and defendant's motion for a trial by jury is hereby denied."

While assignment No. 2 is that the court erred in the recitals to the findings of fact wherein the court recites "a jury trial having been expressly waived by the respective parties appearing therein," for the reason that defendant did not waive a jury trial, but demanded a jury trial, and the same was denied.

This court cannot review the action of the trial court with respect to the matter of the motion for a jury trial, if one was made, or consider said assignments upon their merits, because the alleged order upon which these assignments are based and the proceedings had in connection therewith, if there were any, are not authenticated or exhibited to this court in the manner required by the Code. The Code provides for two methods by one or the other of which an order or ruling of the trial court must be preserved and presented if the same is to be reviewed by this court upon an appeal. The one method is to show the same in the judgment roll; and the statute provides just what shall appear in a judgment roll. The other is to incorporate the same in a bill of exceptions. All matters which do not appear in the judgment roll by force of the statute must be shown in the bill of exceptions, if they are to be reviewed by this court. The judgment roll and the bill of exceptions, if there be one, shall constitute the record on appeal to the Supreme Court. Comp. Laws Utah 1917, § 6992. The case is here upon what purports to be a judgment roll of the second trial and a bill of exceptions. The bill of exceptions consists of a transcript of the reporter's notes of the evidence adduced and the proceedings had at the second trial, which was before Judge James W. McKinney. There is no reference whatever in the bill of exceptions to the matter of the motion for a jury trial; the order or ruling mentioned in assignment No 1, purporting to have been made by Judge Moffat, on December 3, 1929, is not mentioned in the bill. So far as the bill of exceptions discloses, the defendant went to trial before Judge McKinney, sitting without a jury, without objection or protest. So there is nothing in that part of the record to impeach the recital contained in the findings which is referred to in assignment No. 2, or to support assignment No. 1. What appellant has attempted to do, apparently, is to have the alleged ruling and order of December 3, 1929, incorporated in the judgment roll, for we observe among the papers in the judgment roll what purports to be a copy of a minute entry of an order made by Judge Moffat on that date which is in the language set out in assignment No. 1. But the attempt is ineffective because it is not made to appear that Judge Moffat settled and signed an exception, which was filed with the clerk at the time the ruling was made, as contemplated by Comp. Laws Utah 1917, § 6970, so that the same would become a part of the judgment roll under the provisions of Comp. Laws Utah 1917, § 6867, subd. 2, as amended by Laws of Utah 1925, chap. 52, which provides what shall constitute the judgment roll in cases of this kind, and the ruling or order not being shown to be one which is deemed to have been excepted to under section 6966, having been made in the absence of the defendant or his counsel. The order therefore is not shown to be one which should properly be included in the judgment roll and its inclusion therein amounts to nothing, and not being a part of the judgment roll or being shown in the bill of exceptions, and hence not a part of the record on appeal, this court can take no notice of it, nor can it review the action of the trial court with respect thereto. Murphy Wholesale Grocery Co. v. Skaggs et al., 67 Utah 487, 248 P. 127; Mary Jane Stevens Co. v. Foley et al., 67 Utah 578, 248 P. 815; Cornelius v. Mohave Oil Co. et al., 66 Utah 22, 239 P. 475.

To make ourselves perfectly clear with respect to the matter, let it be added that if the defendant had taken an exception to Judge Moffat's ruling and thereupon had Judge Moffat settle and sign an exception and filed it with the clerk, then the same would have become a part of the judgment roll under the statute and this court could review the matter; or if the order had been made in the absence of the defendant or his counsel, it would also become a part of the judgment roll and would be presented for review in this court. But neither of those requirements appearing, and the order not being one which otherwise becomes a part of the judgment roll by virtue of the statute, the inclusion of a copy of the minute entry of the order among the papers in the judgment roll is a nullity. What the defendant should have done was to have a copy of the minute entry, showing his exception to the ruling, included in the bill of exceptions which was settled by the judge who tried the case, when he failed to have Judge Moffat settle an exception and file it with the clerk at the time the ruling was made.

Assignments 3, 4, and 5 attack certain of the findings of fact. The trial court found that Davis, the broker who is the assignor of the cause of action upon which the action is brought, secured a customer, Waite, who was ready, able, and willing to trade and who did trade, certain real estate owned by him, to wit, the Cozy Dale Farm, for the real estate described in the listing contract, upon terms acceptable to the defendant; and that Davis, through his efforts, in whole or in part, brought the minds of Huffaker and Waite together in the trade which was made; and that Davis performed all the terms and conditions of said contract on his part to be kept and performed; and hence the trial court concluded as a matter of law that Davis was, and the plaintiff as his assignee is, entitled to the claimed commission. By the assignments herein mentioned appellant challenges the foregoing findings, claiming that they are not supported by, but are contrary to, the evidence. His claim, in short, is that Waite was not willing to trade through Davis and that it was Epperson, another broker, and not Davis, who brought the contracting parties together in the exchange of properties which admittedly was made by them. There are two reasons why this contention of appellant cannot be sustained. In the first place, the question of whether or not the exchange of defendant's property for the Cozy Dale Farm was brought about through the efforts of Davis, in whole or in part, is a question of fact to be determined by way of inference from other facts established by the evidence in the case. It is to be determined in the first instance by the trial court; and when so determined, this being a law case, if it be supported by sufficient competent evidence, the finding of the trial court thereon is binding upon this court. Knight v. Wessler et al., 67 Utah 354, 248 P. 132. That there is competent evidence to support such findings cannot now be gainsaid, for the evidence upon that question at the second trial was substantially the same as at the first trial; and this court held on the first appeal that it was sufficient to take the case to the jury, which might find either way. In the second place, appellant now makes the very same contentions under said assignments that he made in the first appeal to support the judgment which was in his favor, and this court decided against him on such contentions, holding that the jury might well find from the evidence that Davis' efforts were the procuring cause of the exchange of properties. The holding in the first appeal is therefore decisive of the questions sought to be raised under the assignments now under consideration. Upon this point respondent cites, from the many cases which might be cited, the following: Potter v. Ajax Mining Co., 22 Utah 273, 61 P. 999; Tyng v. Constant-Loraine Inv. Co., 47...