Wells v. Culp

• Decision Date: 12 June 1917
• Citation: 166 P. 218,30 Idaho 438
• Parties: F. L. WELLS, Respondent, v. ELLA CROZIER CULP and LYNN W. CULP, Her Husband, Appellants
• Court: Idaho Supreme Court

166 P. 218

30 Idaho 438

F. L. WELLS, Respondent, v. ELLA CROZIER CULP and LYNN W. CULP, Her Husband, Appellants

Supreme Court of Idaho

June 12, 1917

NEW TRIAL-TRANSCRIPT ON APPEAL.

1. The action of the trial court in overruling motion for new trial based in part upon the minutes of the court, cannot be reviewed where the record of appeal fails to contain a transcript of the evidence duly settled by the trial judge.

2. A transcript of the evidence not duly certified and settled by the trial judge cannot be considered on appeal, either from the judgment or from the order overruling the motion for new trial.

[As to what proceedings are inconsistent with motion for new trial so as to waive right to move, see note in Ann.Cas. 1914B 612]

APPEAL from the District Court of the Eighth Judicial District, for Kootenai County. Hon. John M. Flynn, Judge.

Action to foreclose mortgage. Judgment for plaintiff. Modified and affirmed.

Judgment affirmed. Costs awarded to respondent. Petition for rehearing denied.

Lynn W Culp, for Appellants.

F. A. McMaster and Alex Kasberg, for Respondent.

Counsel cite no authorities on points decided.

RICE, J. Budge, C. J., and Morgan, J., concur.

OPINION

RICE, J.

This is an appeal from a decree foreclosing a certain mortgage upon property owned by the appellants and from an order of the court overruling appellants' motion for new trial. The motion for new trial was based in part upon the minutes of the court.

The record on appeal purports to contain a transcript of the evidence taken at the trial. It does not appear that this transcript was ever settled by the trial judge or certified by him to be correct. Sec. 4443, Rev. Codes, as amended by 1911 Sess. Laws, p. 378, is as follows: "The judgment-roll and the affidavits, or the records and files in the action; . . . . as the case may be used on the hearing, with a copy of the order made, shall constitute the record to be used on appeal from the order granting or refusing a new trial, unless the motion be made on the minutes of the court, and in that case the judgment-roll and a reporter's transcript prepared in the manner prescribed by sec. 4434 of these Codes, with a copy of the order, shall constitute the record on appeal." Sec. 4434, referred to (Sess. Laws 1911, p. 379), requires that the trial judge must settle the transcript of the evidence, and when so settled said transcript shall have the force and effect of a bill of exceptions duly settled and allowed. In the absence of such settlement by the trial judge the purported transcript of the evidence cannot be considered in this court. Having failed to furnish this court with the...