Zion's Co-Operative Mercantile Institution v. Armstrong

• Decision Date: 04 February 1899
• Court: Idaho Supreme Court
• Parties: ZION'S CO-OPERATIVE MERCANTILE INSTITUTION v. ARMSTRONG

56 P. 168

6 Idaho 464

ZION'S CO-OPERATIVE MERCANTILE INSTITUTION v. ARMSTRONG

Supreme Court of Idaho

February 4, 1899

FORECLOSURE-RECORD ON APPEAL FROM JUDGMENT-SPECIAL VERDICT-FINDINGS BY THE COURT-CONFLICT OF EVIDENCE.-Unless the record contains the evidence, this court cannot determine whether the special verdict of a jury, or the findings of fact by the court are supported by the evidence.

(Syllabus by the court.)

APPEAL from District Court, Fremont County.

Judgment affirmed. Cost awarded to respondent.

Chalmers & Ryan, for Appellants, cite no authorities upon the question decided by the court.

Dietrich & Stevens, for Respondent.

The record in this case properly consists of the complaint demurrer, order overruling demurrer, answer, decision judgment and the stipulation as to testimony. The appeal is from the judgment, and substantially without statement or bill of exceptions. The stipulation as to the evidence is insufficient upon which to predicate or assign any error. It does not purport to present the weight or verity of the testimony introduced, or any ruling of the court touching the admissibility of evidence or the propriety of instructions if there were any. The verdict of the jury was merely advisory, which the court could adopt or not, as it chose. (Prichard v. Butler, 4 Idaho 518, 43 P. 73.)

SULLIVAN, J. Huston, C. J., and Quarles, J., concur.

OPINION

SULLIVAN, J.

This is an action of foreclosure. The instrument sought to be foreclosed, on its face is a warranty deed. The defense is that the deed was given in full payment and satisfaction of an indebtedness of $ 3,000, exclusive of interest. The trial was before the court with a jury. The jury found a special verdict, which the court disregarded, and made its own finding of facts, and entered judgment and decree for the plaintiff. The appeal is from the judgment.

The transcript in this case consists of the notice of appeal judgment-roll, and a bill of exceptions or statement of the case, upon which the appellants rely. (Rev. Stats., sec. 4818, subd. 2.) Revised Statutes, section 4456, provides that the judgment-roll, in cases like that at bar, shall consist of the pleadings, a copy of the verdict of the jury or the finding of the court, all bills of exceptions taken and filed, and a copy of any order made on demurrer, or relating to a change of parties, and a copy of the judgment. The transcript contains no bills of exceptions or statement. As the verdict of the jury was special and advisory only, and the court refused to adopt it, but made findings of fact of its own, this court is unable to determine whether the verdict of the jury or the...