Walton v. Clark

• Decision Date: 03 November 1924
• Citation: 40 Idaho 86,231 P. 713
• Parties: E. F. WALTON, Respondent, v. D. F. CLARK, Appellant
• Court: Idaho Supreme Court

231 P. 713

40 Idaho 86

E. F. WALTON, Respondent, v. D. F. CLARK, Appellant

Supreme Court of Idaho

November 3, 1924

APPEAL AND ERROR-FAILURE TO FILE TRANSCRIPT-EFFECT-EXTENSION OF TIME TO FILE BRIEFS-EFFECT-DISMISSAL OF APPEAL-MOTION FOR NEW TRIAL-PENDENCY OF-EFFECT-ORDER DENYING MOTION FOR NEW TRIAL-GROUNDS-DECISION AGAINST LAW-INSUFFICIENCY OF EVIDENCE.

1. An appeal from a judgment will be dismissed where no effort is made to secure a transcript to be used on appeal during the time within which such transcript must be received and lodged in this court.

2. One does not waive his right to move to dismiss an appeal on the ground that the transcript to be used on appeal is not filed in this court within the time provided by the rules by stipulating extensions of time within which to file briefs when a motion to dismiss the appeal is pending when such stipulations are made.

3. The pendency of a motion for new trial does not extend the time within which a transcript on appeal from the judgment must be filed in the supreme court.

4. The sufficiency of the evidence to sustain a decision will not be inquired into, on an appeal from an order denying a motion for new trial, where the notice of motion thereof does not specify the particulars in which the evidence is claimed to be insufficient, and the record does not show that a notice containing such specification was filed and served within twenty days after filing notice of motion for new trial or an extension thereof.

5. The sufficiency of the complaint to state a cause of action will not be reviewed on appeal from an order denying a motion for a new trial.

6. On an appeal from an order denying a motion for a new trial on the ground that the decision is against law, this court will not determine whether the conclusions of law follow from the findings of fact, nor whether the judgment is sustained by the findings of fact and the conclusions of law.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. William A. Babcock, Judge.

Action for removal of officer for neglect of official duties and for recovery of penalty. Judgment for plaintiff. Motion to dismiss appeal from judgment granted. Order denying motion for new trial affirmed.

Motion to dismiss the appeal from the judgment granted. Order denying motion for new trial affirmed. Costs to respondent.

Walters & Parry, for Appellant.

Failure to file and serve the transcript within the time fixed by the rule of this court is not fatal to the jurisdiction. ( Stout v. Cunningham, 29 Idaho 809, 162 P. 928; Lucas v. City of Nampa, 37 Idaho 763, 219 P. 596; California Gulch Placer Min. Co. v. Patrick, 37 Idaho 661, 218 P. 378.)

"A failure to file a transcript of record on appeal in this court within the time provided by the rules of this court is waived by subsequently entering into a stipulation with respect to filing briefs." (Lucas v. City of Nampa supra.)

Respondent waived right to insist upon dismissal of the appeal from the judgment by failing to object to settlement of reporter's transcript after ninety-day period. (Littler v Jefferis, 35 Idaho 27, 202 P. 602.)

In each and every of the assignments the appellants have in their brief pointed out specifically the particular respects in which the trial court is alleged to have erred, and have brought themselves completely within the rule laid down by this court in Morton Realty Co. v. Big Bend Irr. & Min. Co., 37 Idaho 311, 218 P. 433.

This court can review the action of the trial court in denying the motion for a new trial upon the briefs filed by appellants herein. (Smith v. Wallace Nat. Bank, 27 Idaho 441, 150 P. 21.)

The questions of the sufficiency of the complaint, of whether or not the conclusions of law follow from the findings and of whether the findings and conclusions of law support the judgment, are all similar questions of law which appear on the face of the judgment-roll, and can also be considered under an assignment that the decision is against law, and on an appeal from an order denying a new trial. (Hill v. Porter, 38 Idaho 574, 223 P. 538; Brown v. Macey, 13 Idaho 451, 90 P. 339; Turner Agency v. Pemberton, 38 Idaho 235, 221 P. 133.)

On an appeal from an order denying a new trial the appellate court can and must consider and review all of the grounds of error which the trial court should consider on the motion. ( Hodges v. Alexander, 44 Okla. 598, 145 P. 809; Rowsey v. Jameson, 46 Okla. 780, 149 P. 880; Butler, Stevens & Co. v. Hall, 7 Ga.App. 777, 68 S.E. 331; Trenerry v. South Omaha, 86 Neb. 7, 124 N.W. 920; Peterson v. Struby, 25 Ind.App. 19, 56 N.E. 733, 57 N.E. 599.)

Homer C. Mills, for Respondent.

Appeal will be dismissed for failure to file transcript on appeal within the time required by the rules in the absence of sufficient showing of diligence. (Parkinson v. Winzler, 36 Idaho 449, 210 P. 738; Gemmell v. Collins, 36 Idaho 416, 210 P. 738; Harris v. Acuff, 36 Idaho 336, 210 P. 643; H. B. Lake & Co. v. Bales, 36 Idaho 142, 210 P. 396; Blumauer-Frank Drug Co. v. First Nat. Bank, 35 Idaho 436, 206 P. 807; Columbia Trust Co. v. Balding, 34 Idaho 579, 205 P. 264; Iowa State Savings Bank v. Twomey, 31 Idaho 683, 175 P. 812; Woodmansee & Webster Co. v. Woodmansee, 31 Idaho 747, 176 P. 148; Hansen v. Boise-Payette Lumber Co., 31 Idaho 600, 174 P. 703.)

Pendency of motion for new trial does not operate to extend time within which to file transcript on appeal. (Miller v. Prout, 32 Idaho 728, 187 P. 948; Modoc Co-operative Assn. v. Porter, 11 Cal.App. 270, 104 P. 710.)

The assignment in motion for new trial of insufficiency of the evidence to sustain the decision cannot be considered, because no particulars are specified. (C. S., sec. 6890; Curtis v. Walling, 2 Idaho 416, 18 P. 54; Robson v. Colson, 9 Idaho 215, 72 P. 951; Brown v. Macey, 13 Idaho 451, 90 P. 339; Kelley v. Clark, 21 Idaho 231, 121 P. 95; Times Printing etc. Co. v. Babcock, 31 Idaho 770, 176 P. 776; Studebaker Bros. Co. of Utah v. Harbert, 35 Idaho 490, 207 P. 587; De Molera v. Martin, 120 Cal. 544, 52 P. 825; McLennan v. Wilcox, 126 Cal. 51, 58 P. 305; National Bank of California v. Mulford, 17 Cal.App. 551, 120 P. 446; Strange v. Strange, 23 Cal.App. 281, 137 P. 1104.)

Orders for extension of time to file transcript made subsequent to the filing of the motions to dismiss such appeals were made without prejudice to pending motions to dismiss, and without prejudice to the right of the adverse party to move for a dismissal of the appeals, subsequent to the signing and filing of such orders. (Intermountain Assn. of Credit Men v. Rexburg Farmers' Society of Equity, Ltd. , 38 Idaho 121, 220 P. 114.)

Appellant has failed to assign as error the action of the trial court in denying and overruling motion for new trial. If the appeal from the judgment be dismissed, then there is nothing for this court to do except to affirm the ruling of the trial court on the order. (Glover v. Brown, 32 Idaho 426, 184 P. 649; Perrin v. Union Pacific R. Co., 59 Utah 1, 201 P. 405.)

All assignments of error in the brief go to the appeal from an order denying a new trial; there is but one error to be considered, namely, that the court erred in denying such motion. (Lawyer-Cuff Co. v. Bland, 79 Okla. 307, 193 P. 525; Davis v. McGilbray, 81 Okla. 42, 196 P. 339; One Tulsa Four Automobile v. State, 85 Okla. 185, 205 P. 132.)

"An assignment of error which in effect merely alleges that the court erred in rendering judgment for one party, and against the other, presents nothing for this court to review." ( Hocker v. Rackley, 90 Okla. 83, 216 P. 151; Beck v. Baden, 3 Kan. App. 157, 42 P. 845; Robson v. Colson, 9 Idaho 215, 72 P. 951; Morton Realty Co. v. Big Bend Irr. & Min. Co., 37 Idaho 311, 218 P. 433.)

"The limit of appellate inquiry under an assignment of error to the effect that the judgment was contrary to law is this: on the pleadings and findings was the proper judgment entered?" (DeVitt v. City of El Reno, 28 Okla. 315, 114 P. 253.)

WM. E. LEE, J. McCarthy, C. J., and Brinck, District Judge, concur. WILLIAM A. LEE, J., Dissenting.

OPINION

WM. E. LEE, J.

This is an appeal from a judgment and from an order overruling a motion for new trial. E. F. Walton, the respondent, filed an information in the district court of Twin Falls county against D. F. Clark, the appellant, a member of the board of trustees of Independent School District No. 1, of Twin Falls county, charging him with neglect and refusal to perform the duties pertaining to his office, and praying that appellant be removed from his office and that respondent, as informer, be awarded judgment against appellant in the sum of $ 500. At the same time respondent filed a similar information against both W. W. Parish and G. W. Bice, two other members of the same board of trustees. The three causes were consolidated for trial, a judgment of ouster entered against each of the three trustees, and judgment for $ 500 was rendered in favor of respondent against each of the three trustees.

Respondent moved to dismiss the appeal from the judgment on the ground and for the reason that the transcript on appeal was not filed in this court within ninety days after the appeal was perfected, as provided by Rule 26. The judgment was filed on August 30, 1921; the notice of appeal was filed on November 26, 1921; and the undertaking was filed on November 30, 1921. The transcript on appeal was filed in this court on May 11, 1922, more than ninety days after the appeal was perfected. On April 10, 1922, which was more than ninety days after the appeal was perfected, respondent moved to dismiss the appeal from the judgment. The motion was not then passed on, and is now urged. The notice of motion for...