Zall Jewelry Co. v. Stoddard
| Decision Date | 03 May 1920 |
| Docket Number | 9619. |
| Citation | 68 Colo. 395,190 P. 506 |
| Parties | ZALL JEWELRY CO. et al. v. STOODARD et al. |
| Court | Colorado Supreme Court |
Rehearing Denied May 25, 1920.
Error to District Court, City and County of Denver; W. S. Johnson Judge.
Action by V. C. Stoddard and Edward McLean, trustee in bankruptcy against the Zall Jewelry Company and others. To review judgment for plaintiffs, defendants bring error.
Writ dismissed and judgment affirmed.
Edwin N. Burdick, John Dewesse, Nathaniel Halpern, and John McPhail, all of Denver, for plaintiffs in error.
Tolles & Cobbey, of Denver, for defendants in error.
Herman and Jennie Zalinsky are husband and wife, and William Zall is their son.
In 1907 defendant in error Stoddard obtained a judgment in the county court against Herman Zalinsky. In 1917 execution was issued on this judgment and returned unsatisfied and such further proceedings had that the other plaintiffs in error were brought into this action as parties, under the contention that certain stock of the company standing in the name of the wife and son was in fact the property of the husband. Herman Zalinsky meanwhile, on his voluntary petition, was declared a bankrupt; the Stoddard judgment being scheduled as his sole debt. Defendant in error McLean was appointed trustee. On the trial a verdict was directed for plaintiffs in error. An appeal was taken to the district, court, and the trial there resulted in a verdict for defendants in error. Thereupon judgment was entered decreeing 9,997 shares of said stock standing in the name of Jennie Zalinsky and William Zall to be the property of Herman Zalinsky, and subjecting the same to the lien of the Stoddard judgment. Such further proceedings were thereafter had that the cause is now before us for review on error.
Among the numerous questions argued in the briefs of counsel are The regularity of the proceedings by which Jennie Zalinsky William Zall, and the Zall Jewelry Company were brought into the cause, and those by which McLean appeared as a plaintiff in the county court and an intervener in the district court; the amendment of an appeal bond; the correctness of the instructions; and the sufficiency of the evidence. Further details concerning these matters are, however, unnecessary by reason of the condition of this record as hereinafter set forth.
BURKE, J. (after stating the facts as above).
The bill of exceptions contains 450 pages and is not indexed, and the number of folios, including numerous exhibits thereto attached, is 1,210. It is apparent that, as originally prepared and certified, no instructions were contained therein and none are mentioned in the certificate. Thereafter duplicate folios 1055 to 1114 and 28 additional pages without folio numbers, all relating to instructions, were inserted just preceding the certificate. No discoverable order is followed in making up the record proper.
The original abstract of record, so called, contains 72 pages. It is in no proper sense of the term such an abstract, but rather a collection of desultory comments on the proceedings in the district court, such as:
'Counsel were then permitted to inquire as to the age of the boy and inquiries along that line to some considerable extent.'
The folios of this document are so badly mixed as to be worse than useless. The same may be said of its purported index.
The assignment contains 22 paragraphs calling our attention to that number of alleged errors of the trial court. Nos. 1, 2, 3, 19, and 20 are incomprehensible. No. 3, which is a fair example of these, reads:
'The court erred in overruling the motion to quash the summons issued to make any person a party to a summons in garnishment that had already been served and answered.'
Each of the remaining assignments refers to certain folios of the abstract, examination of which is indispensable to an understanding of them. In each case either the abstract is too meager to inform us of the cause of complaint, or is altogether silent upon the subject mentioned in the assignment, or fails to disclose any objection to the ruling or any exception saved thereto.
The sufficiency of the evidence to support the verdict is not covered by any assignment of error; hence a supplemental abstract of 147 pages filed by defendants in error was entirely unnecessary.
Rule 34 of the rules of this court (161 P. x).
'Plaintiff in error shall assign errors in writing at the time of filing the record and each error shall be separately alleged and particularly specified.' Rule 30 of the rules of this court.
'If the plaintiff in error shall fail to assign error, the writ of error shall be dismissed.' Rule 31 of the rules of this court.
'An exception in the lower court to an instruction is essential to a consideration of alleged error therein; such exception should appear in the abstract.' Auckland et al. v. Lawrence, 19 Colo.App. 291, 292, 74 P. 794, 795.
An assignment of error based upon a document not appearing in the abstract will not be considered. Merriner v. Jeppson et al., 19 Colo.App. 218, 220, 74 P. 341.
'Plaintiff in error shall prepare and file a printed abstract of the record which must set forth fully the points relied upon for the reversal of the judgment, and if in this respect the abstract is defective, the * * * writ of error may be dismissed.' Brennan Merc. Co. et al. v. Vickers et al. 31...
To continue reading
Request your trial