Williams v. Boise Basin Mining & Development Co.

• Citation: 81 P. 646,11 Idaho 233
• Parties: WILLIAMS v. BOISE BASIN MINING AND DEVELOPMENT COMPANY
• Decision Date: 28 June 1905
• Court: United States State Supreme Court of Idaho

81 P. 646

11 Idaho 233

WILLIAMS v. BOISE BASIN MINING AND DEVELOPMENT COMPANY

Supreme Court of Idaho

June 28, 1905

RECORD ON APPEAL-JUDGMENT-ROLL-WHAT IT SHALL CONTAIN-MOTION TO STRIKE SUSTAINED WHEN.

1. On appeal from a judgment without a statement or bill of exceptions, nothing belongs to the record except the judgment-roll and no question outside of the record can be considered by the court.

2. On appeal from a judgment the judgment-roll consists of the pleadings, a copy of the verdict of the jury, or findings of the court or referee, all bills of exceptions taken and filed and a copy of any order made on demurrer or relating to any change of parties, and a copy of the judgment. (Rev. Stats sec. 4456, subd. 2.)

3. A motion will be sustained to strike from the record on appeal from a judgment any papers, records, or ^ thereof which under the provisions of subdivision 2, section 4456, Revised Statutes, have no place in the judgment-roll.

(Syllabus by the court.)

APPEAL from the District Court of Ada County. Honorable George H Stewart, Judge.

Judgment for the plaintiff, from which defendant appeals. Judgment affirmed.

Judgment affirmed, with costs to respondent.

J. J. Blake and C. C. Cavanah, for Appellants.

A judgment rendered in vacation without any agreement of record of the parties that the same could be done is a nullity and therefore void. (Smith v. Chichester, 1 Cal. 409; Coffenbirry v. Harrald, 5 Cal. 493; Peabody v. Phelps, 7 Cal. 54; wicks v. Ludwig, 9 Cal. 173; Filley v. Cody, 4 Colo. 109; Kirlley v. Marshall Silver Min. Co., 4 Colo. 110 Francis v. Wells, 4 Colo. 274; Pressley v. Harrison, 102 Ind. 14, 1 N.E. 188.) A judgment rendered in vacation is void. (Pond v. Simons, 17 Ind.App. 84, 45 N.E. 48, 46 N.E. 153; Bruce v. Doolittle, 81 Ill. 103; Becker v. Eble, 144 Ind. 287, 43 N.E. 233; Earls v. Earls, 27 Kan. 538; Irwin v. Irwin, 2 Okla. 180, 37 P. 548.) The judicial power of the state is vested in the several courts and not the judges thereof. (Idaho Const., art. 5, sec. 2.) The rendition and entry of a judgment are entirely different things. The first is purely a judicial act of the court alone, and must be first in the order of time, while the entry is merely evidence that a judgment has been rendered and is purely a ministerial act. (18 Ency. of Pl. & Pr. 430.) It seems to be well settled that an appeal will lie from a void judgment. (People v. Lindsay, 1 Idaho 400; Merced Bank v. Rosenthal, 99 Cal. 39, 31 P. 849, 33 P. 732; Therkelsen v. Therkelsen, 35 Or. 75, 54 P. 885, 57 P. 373; Deering & Co. v. Creighton, 26 Or. 556, 38 P. 710; Stites v. McGee, 37 Or. 574, 61 P. 1129; Gray v. Schupp, 4 Cal. 155; Peabody v. Phelps, supra.)

Frank Martin, for Respondent.

This is an appeal from the judgment upon the judgment-roll alone, no bill of exceptions or statement having been settled or filed in this case. Upon such an appeal the statutes of this state prescribe of what the record shall consist, and the decisions of this court as well as of the other courts are uniform in holding that if anything additional is in the transcript, the court in considering the case will entirely disregard it, and on motion will strike it out. Nothing in the transcript brought to the appellate court can be considered unless by the provisions of the statute, or bill of exceptions or statement, it is made a part of the record in the case. And on appeal from a judgment, without a statement or bill of exceptions having been properly prepared and settled in the case, nothing is brought up, or is a part of the record on appeal, except the judgment-roll; and no question arising outside of the judgment-roll can be considered. If any further record is required, it must be made in the form of a statement or bill of exceptions. (Ramsey v. Hart, 1 Idaho 423; Ray v. Ray, 1 Idaho 708 (top of page); Bonner v. Powell, 7 Idaho 104, 61 P. 138; Graham v. Linehan, 1 Idaho 780; State v. Larkins, 5 Idaho 200, 47 P. 945; Sharp v. Daugney, 33 Cal. 515; People v. Waters, 1 Idaho 561; Dimick v. Campbell, 31 Cal. 238; Sutter v. San Francisco, 36 Cal. 114; Wetherbee v. Carroll, 33 Cal. 553; Emeric v. Alvarado, 64 Cal. 595, 2 P. 418; Amy v. Amy, 12 Utah 278, 42 P. 1125; Abbott v. Douglass, 28 Cal. 297; Harper v. Minor, 27 Cal. 107; McAbee v. Randall, 41 Cal. 137; Douglas v. Dakin, 46 Cal. 52; McGill v. Rainaldi, 11 Cal. 391; Karth v. Orth, 10 Cal. 193.) A motion to strike from the transcript portions thereof, not a part of the judgment-roll, under the provisions of our statute, and which has not been incorporated into a statement or bill of exceptions, as required by statute, will be sustained. (Stickney v. Hanrahan, 7 Idaho 424, 63 P. 189; Rick v. Franch, 3 Idaho 727, 35 P. 173; Taylor v. McCormick, 7 Idaho 524, 64 P. 239; Anderson v. Shoshone County, 6 Idaho 78, 53 P. 105; First Nat. Bank of Lewiston v. Sampson, 7 Idaho 564, 64 P. 890; Paul v. Cragnaz, 25 Nev. 293, 59 P. 857, 60 P. 983, 47 L. R. A. 540; Swartz v. Davis, 9 Idaho 238, 74 P. 800; Robinson v. Kind, 25 Nev. 261, 59 P. 866, 62 P. 705; Reinhart v. Company D, 23 Nev. 369, 47 P. 979; Carr etc. v. Closser, 25 Mont. 149, 63 P. 1043; Hoppin v. First Nat. Bank, 25 Nev. 84, 56 P. 1121.) The record shows that the cause was submitted in court, and there was, therefore, no error in hearing argument at chambers, and thereupon deciding the case. (City of San Jose v. Shaw, 45 Cal. 179; Everett v. Buchanan, 2 Dak. 253, 6 N.W. 439, 8 N.W. 31.) The supreme court will not take judicial notice of the adjournment of the district courts. (Baker v. Knott, 3 Idaho 700, 35 P. 172.) This appeal is before the court upon the judgment-roll alone, and nothing can be considered except what appears upon the judgment-roll. (Lamkin v. Sterling, 1 Idaho 120; Smith v. Sterling, 1 Idaho 128; Gamble v. Dunwell, 1 Idaho 268; McCoy v. Oldham, 1 Idaho 465; Hyde v. Harkness, 1 Idaho 638; Ray v. Ray, 1 Idaho 705; People v. O'Conner, 1 Idaho 759; Graham v. Linehan, 1 Idaho 780; Berry v. Alturas Co., 2 Idaho 296, 13 P. 233; Washington etc. Co. v. Osborne, 2 Idaho 559, 21 P. 421; Young v. Tiner, 4 Idaho 269, 38 P. 697; Steffy v. Ester, 6 Idaho 228, 55 P. 239; Zion etc. v. Armstrong, 6 Idaho 464, 56 P. 168; Jones v. Quayle, 3 Idaho 640, 32 P. 1134; Purdy v. Steel, 1 Idaho 216; Swartz v. Davis, 9 Idaho 238, 74 P. 800; Paine v. San Bernardino Traction Co., 143 Cal. 654, 77 P. 659; Breeze v. Brooks, 97 Cal. 77, 31 P. 742.) Under the authorities where a debtor owes a fixed sum of money, and is given an option to pay said sum in property, or in anything other than money, the duty rests upon the debtor to make such performance, and to tender such property during the time expressed in his option, or if no time is expressed within a reasonable time. And if he fails so to do, he loses his right so to pay, and the creditor can sue and recover in an action for the money due, without declaring upon the agreement containing said option. (Wainwight v. Straw, 15 Vt. 215, 40 Am. Dec. 675, 22 Am. & Eng. Ency. of Law, 2d ed., p. 543, par. b; Baker v. Todd, 6 Tex. 273, 55 Am. Dec. 775; Edwards v. McKee, 1 Mo. 123, 13 Am. Dec. 474; Nesbitt v. Pearson, 33 Ala. 673, par. 2; Plowman v. Riddle, 7 Ala. 775; Smith v. Coolidge, 68 Vt. 516, 54 Am. St. Rep. 902, 35 A. 432; Crowl v. Goodenberger, 112 Mich. 683, 71 N.W. 485; Marlor v. Texas & P. R. R. Co., 21 F. 383; Schnier v. Fay, 12 Kan. 184; Hall v. Hunter, 4 G. Greene (Iowa), 542; Plummer v. Keaton, 9 Yerg. (Tenn.) 27; New York News Pub. Co. v. Steamship Co., 148 N.Y. 39, 42 N.E. 514, and cases cited; Sperry v. Johnson, 11 Ohio 453; Perry v. Smith, 22 Vt. 301.)

STOCKSLAGER, C. J. Ailshie, J., and Sullivan, J., concur.

OPINION

STOCKSLAGER, C. J.

This action was brought by the plaintiff to recover from the defendant, the Boise Basin Mining and Development Company, the sum of $ 4,000 alleged to be due plaintiff on or before April 28, 1900, as a balance of the purchase price of certain mining property sold for $ 100,000 to George H. Roberts, assignor of said defendant, the Boise Basin Mining and Development Company, and that plaintiff has a vendor's lien upon said mining properties. Defendants answered said complaint denying that either of them were indebted to plaintiff in any sum of money, and alleging, among other things, that on April 28, 1900, the plaintiff agreed in writing with said defendant, the Boise Basin Mining and Development Company, to accept $ 4,000 of securities of said defendant, the Boise Basin Mining and Development Company, as soon as they were issued, in full satisfaction of said balance of $ 4,000. A trial was had on February 25, 1904, before the court without a jury, and the findings and decision of the judge thereof were rendered on April 29, 1904, in vacation in which the judge rendered judgment against the said defendant, the Boise Basin Mining and Development Company, in the sum of $ 4,000. This appeal is from the judgment.

The above statement is taken from the brief of the appellants and seem to fully state the record so far as it relates to the facts in the case. Only two errors are assigned by appellants: "1. That said judgment was rendered in vacation by the judge without any agreement of record of the parties that the same could be done out of term time; 2. The said judgment is not sustained by the findings. "

The first question for us to determine is the motion of respondent to strike from the transcript that portion on pages 13 and 14, marked "Minutes of the court." Also that portion on page 27 marked "Notice." Also that portion on page 29 marked 'Order fixing terms of court." Also on page 30 marked "Certificate of clerk concerning time when judgment was made." On page 31, to wit: "Notice of decision of court, certificate of clerk as to terms of court and when...