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(4 Idaho, 341)

lant made a motion to set aside the order JACOBS v. SHENON.

of dismissal, and filed affidavit of facts tend. (Supreme Court of Idaho. Feb. 18, 1895.)

ing to show excuse for the default of appel

lant. DISMISSAL OF APPEAL FAILURE TO FILE BRIEFS

The court says that, if there are cir-REINSTATEMENT.

cumstances which excuse the default, they 1. Upon a motion to dismiss an appeal by must be shown by affidavit at the time the reason of failure of appellant to comply with motion to dismiss is made, and cannot be the rules of the court with reference to filing

heard after the motion to dismiss has been and service of transcript and briefs, affidavits tending to excuse such laches must be presented granted, and on a motion to set aside the on the hearing of the motion, where notice of order of dismissal. There should also be an the hearing has been served on appellants. It

affidavit or some showing of merits in the is too late to present such affidavits on a motion to reinstate the cause, after motion to dismiss

appeal. In Hagar v. Mead, 25 Cal. 599, the has been heard and allowed.

court says that, on motion to reinstate cause 2. Upon a motion to reinstate a cause opon once dismissed by reason of laches in filing the calendar once dismissed, the affidavit should show apparent merit.

of transcript under the rules, the affidavits (Syllabus by the Court.)

should show that in the opinion of counsel,

at least, there are substantial errors in the Appeal from district court, Alturas coun

record, which ought to be corrected by this ty; C. 0. Stockslager, Judge.

court. In the case at bar no effort is made Action by Philip Shenon against Martin

to show that there is any apparent error in H. Jacobs. Judgment for plaintiff, and de

the trial or hearing of the cause in the court fendant sppeals. Appeal dismissed. Motion

below. We think, in order to reinstate an to reinstate denied.

appeal once dismissed, the appellant should On November 10, 1894, attorney for re

show such a condiiion of the record as would spondent placed on file a notice to attorney

indicate that there was apparent error in the for appellant that, on a day therein named,

proceedings of the lower court. No effort he would move the court to dismiss the ap

is made to do so. peal, for the reason that no copies of either

This cause was before the supreme court transcript or briefs have been served upon

on another appeal (29 Pac. 44), from a trial the respondent or upon his attorney within

had therein in the court below; and, upon an the time required by the rules of the supreme

examination of the transcript in the original court. Copies of the said notice of motion

appeal and the transcript now brought up, and affidavits in support of the motion were

there seems to be no error appearing in the served upon counsel for appellant on No

latter. The motion to reinstate must be de vember 24, 1894. On the latter date the

nied, and it is so ordered. Costs awarded cause was continued for the term, and the

respondent motion to dismiss was set for hearing on the first day of the next term, and notice of this

SULLIVAN and HUSTON, JJ., concur, order was also sent appellant's attorney op November 24, 1894, by the clerk of this court. Court convened on January 14, 1895. Coun

(4 Idaho, 303) sel for respondent appeared to press the mo

WINTERS et al. v. RAMSEY, State Auditor, tion for dismissal, coming from Pocatello for the purpose,-a distance of 250 miles. At

(Supreme Court of Idaho. Jan. 29, 1395.) torney for appellant did not appear. The

STATE AUDITOR-ISSUE OF WARRANT-MANDAMUS hearing was delayed two days, awaiting his

1. Where contract for construction of s

section of the state wagon road stipulates that appearance. Appellant's attorney then ap

final payment will be made when the contract is peared. The notion was heard upon affida- executed to the satisfaction of the state wagon vits presented by respondent and arguments

road commission and the board of examiners, of counsel, and the cause dismissed. On

the auditor cannot be required to issue warrant

until the road is examined by said board of exJanuary 17, 1895, appellant moved the court aminers, and their report made; and said board to reinstate cause, and presented, in support is entitled to reasonable time within which to

make such examination. thereof, affidavit of himself, averring that he

2. The bill for such final payment must alhad mistaken and misunderstood the rules of

so be submitted to state board of examiners. the court.

(Syllabus by the Court.) F. E. Ensign, for appellant. R. R. Quarles, Application by William Winters and othfor respondent.

ers against F. C. Ramsey, as state auditor,

for a peremptory writ of mandamus. DeMORGAN, C. J. (after stating the facts). nied. This affidavit, showing mistakes of attorney This is a petition to compel the state auin regard to rules of the court, if of any force ditor to issue warrant to plaintiffs for the at any time, should have been presented to sum of $5,950, balance claimed to be due the court on the hearing of the motion to plaintiffs for the complete performance of dismiss appeal. It comes too late in sup- their certain contract with the state wagon port of a motion to reinstate. The case of road commission of Idaho for the construcWelch v. Kenney, 47 Cal. 414, is in point. tion of a division of the so-called "state In that case the transcript was not filed in wagon road." The facts, as stated and ad. time, the appeal was dismissed, and appel. | mitted, are, in brief, that on the 30th day,

y.39p.no.2-13

*

of December, 1893, the plaintiffs made a , sioners in making the approval of the board contract with said state wagon road com- of examiners a condition precedent to remission for the construction of a certain di- ceiving final payment, we must hold them to vision of said road; that on or a bout the a compliance therewith. A reasonable time 20th day of October, 1894, the plaintiffs fully and opportunity must be allowed the board completed said division in accordance with of examiners, called in the statute the “ex. said contract and the specifications attached amining board," to make this final examinathereto; that the engineer of said state tion and report thereon. This examination wagon road commission reviewed said road, has not yet been made, and, on account of and duly received and accepted the same as the lateness of the season, they have had no complete and finished, to the satisfaction opportunity to make such examination. We and acceptance of said engineer. On the think this provision in the contract was 5th day of January, 1895, the plaintiffs pre- wise, as it furnishes an additional safeguard sented their said bill to the said state wagon to the state. road commission for the said balance due, It is also contended by the defendant that to wit, $5,950; and said wagon road com- this claim must be submitted for examina. mission approved the same, audited and al- tion to the board of examiners, consisting lowed the bill, authorized its payment, and of the governor, secretary of state, and at. certified the same to the state auditor. Said torney general. Section 18, art. 4, Const., bill, so audited and approved, was then pre- provides that "the governor, secretary of sented to the state auditor, defendant here- state and attorney general shall constitute in, with the request that he draw a state

a board of examiners, with power warrant to plaintiffs for said amount. The to examine all claims against the state, exstate auditor refused so to do, for the rea- cept salaries and compensation of officers son that the governor of the state had not fixed by law,

and perform such been notified by said state wagon road com- other duties as may be prescribed by law." mission of the completion until December This clause of the constitution is supple30, 1894, and that then, on account of the mented by the statute (1 Sess. Laws Idaho, fall of snow and the shortness of the time, p. 46, § 3), as follows: “It shall be the duty it was impossible for the reviewers appoint- of the board (state board of examiners) to ed by the governor to examine and report

examine all claims against the state, except upon said road. The attorney general, ap- salaries and compensations of officers fixpearing for the auditor of state, enters a ed by law. * The board may approve motion to quash the alternative writ herein, or disapprove any claim or demand against because the petition does not state the nec- the state, or any item thereof, or may recomessary facts to justify the issuing of the mend a less amount in payment of the writ.

whole, and a decision of a majority of the

members shall stand as the decision of the W. E. Borah, for plaintiffs. Geo. M. Par

board. Section 4 provides that if the ausons, Atty. Gen., for defendant.

ditor shall draw his warrant for any claim MORGAN, C. J. (after stating the facts). or part of a claim or item thereof, which This raises the question as to whether it is is disa pproved by the board, he shall be lianecessary to have an examination of said ble upon his official bond for the same if division of said state wagon road by the any loss shall accrue to the state therefrom. reviewers appointed by the governor, and a These sections of the constitution and the favorable report from them, before the state statute require all claims against the state auditor is authorized to issue the warrant in of an unliquidated character shall be subfinal payment for said work. It is perhaps mitted to this board for approval or rejecsufficient to say upon this subject that both

tion before the auditor shall draw his warthe plaintiffs and the state wagon road com- rant therefor. This claim is of the class that missioners, being both parties to the con

must be submitted to this board, and aptract for the construction of said road, have proved by it, before the auditor can draw expressly stipulated in said contract that a warrant in payment thereof. This posithe said plaintiffs shall receive final pay

tion of the court is upheld in the case of ment when they have executed their con- State v. Hallock (Nev.) 22 Pac. 123, in which tract to the satisfaction, approval, and ac- this precise clause in the constitution of ceptance of said wagon road commissioners, Nevada is passed upon by the court, and and the board of examiners appointed to wherein the same position is taken by the finally inspect, approve, and accept said di- court. These conditions precedent not hav. vision of said road. We find nothing in the ing been complied with, the motion to quash statutes or constitution of the state forbid- the alternative writ is allowed, and the peding the insertion of such a clause in the tition dismissed. contract; and, as the plaintiffs themselves have joined the state wagon road commis- SULLIVAN and HUSTON, JJ., concur.

( Idaho, 320)

the amended answer was properly overruled. MURPHY v. MONTANDON.

The judgment of the district court is affirm(Supreme Court of Idaho. Feb. 6, 1895.)

ed, with costs.
REVIEW ON APPEAL.
Where there is a conflict of evidence in a

MORGAN, C. J., and SULLIVAN, J., contrial before a jury, the appellate court will not

cur. disturb the verdict. (Syllabus by the Court.)

(4 Idaho, 329) Appeal from district court, Alturas county; C. O. Stockslager, Judge.

GRIFFITHS v. MONTANDON. Action by John Murphy against A. F. Mon- (Supreme Court of Idaho. Feb. 11, 1895.) tandon. Judgment for defendant. Plaintiff BILL OF EXCEPTIONS_RESETTLEMENT AND AMENDappeals. Affirmed.

MENT.

When an omission or mistake has occur. Vineyard & Williams, for appellant. A. F. red in the settlement of a bill of exceptions, the Montandon and F. E. Ensign, for respondent. judge may, upon proper application, allow a re

settlement thereof, provided that it is asked be.

fore the transcript is sent to this court, and HUSTON, J. This case was first before the mistake or omission claimed is shown by us on an appeal from judgment and order documentary evidence, or is not denied by the

adverse party:

But if such omission or misrefusing new trial. See Murphy v. Montan.

take rests in the recollection of judge or counsel, don, 2 Idaho, 1048, 29 Pac. 851. Upon that

and not admitted by the adverse party, a corappeal the order and judgment of the dis- rection or resettlement should be denied. trict court were reversed, and the cause re- (Syllabus by the Court.) manded for a new trial. Upon the second

On rehearing. Affirmed. trial, verdict and judgment were rendered For former opinion, see 35 Pac. 704. in favor of the defendant, from which, and from the order refusing a new trial, the pres- SULLIVAN, J. This case was heard at the ent appeal is taken. The action was brought January term, 1894, of this court, and the deupon a release bond in attachment. The de

cision then given will be found in 35 Pac. 704. fense was that the attachment was issued

A rehearing was granted, upon the ground upon a false affidavit, in that it appeared

of an unintentional error of the trial judge that, at the time the affidavit was made and

in permitting a misleading or false certififiled and the attachment issued, the plaintiff

cate to inadvertently be made a part of the had in his possession, as a pledge or security bill of exceptions. The petitioner now asks for the payment of the note sued upon, a to have stricken from the bill of exceptions certain check or order upon one T. B. Shaw, the following, to wit: “On none but the forefor an amount equal, at least, to the sum

going facts and record the motion to retax sued for, which had been given the plaintiff costs was heard on the 27th day of July, by the defendant in the attachment suit at 1893, and on July 28, 1893, in absence of deor about the time of executing the note sued fendant, the court did retax the same, or file on, and received by the plaintiff as security its findings on the matters theretofore submitfor said note; and therefore the statutory ted by the respective parties,”—and to insert statement, in the aflidavit of the plaintiff in in said bill of exceptions, in lieu thereof, the the attachment suit, that the payment of the following, to wit: “To be inserted in lieu of sum sued for had not been secured by any folios 63 and 64 in transcript on appeal in mortgage or lien upon real or personal prop- the case of John C. GrifSths vs. A. F. Montanerty, or any pledge of personal property, don, from the Fourth district, county of Al. was not true, and, this fact appearing by turas: “This motion was heard on the forethe record, this court held that the attach- going facts, herein set forth, and on the enment was void. Murphy v. Montandon, su- tire record of the cause as tried in the dispra. The only material difference, if it is trict court, including the pleadings and all the material, which we find in the record in this papers on file, the statements and testimony case from that before presented, is in the in- of counsel at the time of said hearing, the evi. troduction in evidence by the plaintiff of the dence in the cause given in the district court, judgment roll in the original attachment suit. and all of the proceedings had therein, and

The contention of the appellant is predicat- the facts within the knowledge of the court ed largely upon alleged errors in the rulings as to all the matters herein stated, also as to of the court upon the pleadings, and errors the presence of witnesses, the necessity for in the findings of the court in that action. their presence, and the reasons for not calling We cannot review that record for the purpose them at the trial; the decision being based of considering any alleged errors therein. It on said evidence and record, and after a full is not here for any such purpose, nor can it and complete hearing, and after argument by be made to serve any such end. While the the respective counsel for plaintiff and derecord shows some conflict in the evidence, fendant, and after examination and investi.. the jury having passed upon it, in recognition gation of all the points raised in defendant's of a well-established principle, this court will affidavit and motion to retax. Said defendnot, where the evidence is conflicting, dis- ant, Montandon, being further informed, aftturb the verdict. We think the demuirer to er the decision upon said motion, that if he

no

still insisted that the parties would not de- , grant this motion, we should, on application mand their fees as alleged in his affidavit, of appellant, grant a diminution of the record, that he would be permitted to file receipts and permit all of the evidence to be brought from said parties, and the clerk would be in- here. This would require the judge to certify structed to credit him with the several up the facts, within the knowledge of the amounts as shown in said receipts on the said court, that he took into consideration in decid. cost bill as retaxed. C. 0. Stockslager, Dist. ing said motion, as well as all other evidence Judge of the Fourth Judicial Dist. of Idaho.'” considered by him. Under the rules of this

It will be observed that the respondent court, upon proper suggestion of diminution seeks a resettlement of the bill of exceptions, of record, the court may order certain correcor seeks to inject into the bill a statement tions to be made, and send the transcript to from the trial judge to the effect that he con- the court below for that purpose; but a residered other evidence than that contained settlement of the bill of exceptions, such as is in the bill on the hearing of the motion to sought here, cannot be allowed after the tax costs. The facts are as follows: The transcript is sent to this court. In People order taxing costs from which this appeal v. Romero, 18 Cal. 90, the court says: “When was taken was made on July 28, 1893. The a mistake or omission has occurred, the judge proposed bill of exceptions was served on may allow a resettlement, pr ided it be the respondent August 7, 1893, and asked before the transcript is sent to this amendments to said bill were proposed. The court, and the mistake or omission is supbill of exceptions was settled on the 4th day | ported by documentary evidence, or is not deof October, 1893. Thereafter, and before the nied by the adverse party. But, when the transcript was filed in this court, the respond- existence of the alleged mistake or omission ent made application to the trial judge for a rests in the mere recollection of the judge or resettlement of said bill of exceptions, which of counsel in the case, and it is not admitted application was granted, and the bill in the by the parties, a resettlement should be reresettlement thereof was amended to some fused.” We think this the correct rule; for, extent. The case was thereafter submitted

if any other rule obtained, it would lead to to this court for final decision, upon oral argu- carelessness in the preparation of bills of exment of the respective counsel and their ceptions, and almost endless contentions in printed briefs. No suggestion of diminution their final settlement. This leaves the case of record was made prior to the final sub- for a rehearing on the same record that it was mission and determination of said case. The formerly heard, and upon that record the detranscript shows that appellant endeavored to cision heretofore given by this court must be bring up all of the evidence considered by the affirmed; and it is so orderd, with the costs judge in the hearing of said motion. He of this appeal and rehearing in favor of apserved his proposed bill of exceptions on the pellant. attorneys of the adverse party, and presented it to the judge for settlement. No amend- MORGAN, C. J., and HUSTON, J., concur. ments were proposed. The bill was settled by the judge. Thereafter, on the application of. respondent, a resettlement of the bill of ex

(4 Idaho, 307) ceptions was had. The bill contains the BELLEVUE ROLLER-MILL CO. et al. v. statement that it includes all of the evidence

LONDON & L. FIRE INS. CO. considered the hearing. The change (Supreme Court of Idaho. Feb. 4, 1895.) sought is very sweeping. The judge desires

INSURANCE POLICY MANUFACTURING ESTABLISHto have the bill now say that it does not con- MENT-OPERATION CLAUSE_VACANT AND UXOC

CUPIED CLAL'SE FORECLOSURE PROCEEDING tain all of the evidence considered on the

CLAUSE-WAIVER. hearing, and that he took into consideration

1. A policy of fire insurance on the flourfacts within his own knowledge in the deter

ing mill of the plaintiff the Bellevue Roller-Mill mination of said motion.

Company, dated September 9, 1893, for one When a motion to tax costs is heard upon year, provided as follows: "This policy, unless

otherwise provided by agreement indorsed hereevidence within the knowledge of the judge,

on or added hereto, shall be void if the subject such evidence should be presented on the of insurance be a manufacturing establishhearing, so that a party may be fully ad- ment, and cease to be operated for more than vised of all the evidence considered. Any

ten consecutive days." It appeared that said

mill was compelled to suspend operations durother rule would enable the judge to decide

ing a portion of each year because of the water such motion upon evidence not produced on freezing in the mill race which conducted it to the hearing, and evidence of which the party

the mill, and that the agent of the insurance

company, knowing this fact, had granted re. had no knowledge whatever. There is no

peated renewals of the insurance on said mill claim that the matter sought to be eliminated

for periods of one year, and that on the 9th from said bill of exceptions was not con- of September, 1893, the policy sued on was is.

sued as a renewal for one year of a former tained in the proposed bill served on respond

policy, without written application, and received ent's attorneys, or that it was not contained

the premium therefor. On December 9, 1893, in the bill as settled and resettled, as above the mill closed down, and so remained until set forth; but, by an oversight of the judge,

May 10, 1891, when the loss occurred. Held

that, under the facts of this case, the insurit is claimed the error crept into or rather re

ance company had waived the provision of the mained in the bill as settled. If we now policy above quoted.

on

com

2. Said policy contains the following pro- ment, and that, contrary to the provisions rision: "This entire policy, unless otherwise

of said policy, the insured had ceased to provided by agreement indorsed hereon or added hereto, shall be void if a building herein de

operate the same, without the consent of described, whether intended for occupancy by fendant indorsed on the policy; (2) that said owner or tenant, be or become vacant or unoc- mill building had, contrary to the provisions cupied, and so remain for ten days.Held, under the facts of this case, that the mill building

of said policy, for a period longer than 10 did not become “unoccupied,” within the mean

days, become vacant and unoccupied, withing of that word as used in said policy.

out the agreement of the insurer indorsed 3. Said policy contains the following pro

on said policy; (3) that foreclosure proceedvision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added

ings were commenced without the consent hereto, shall be void if, with the knowledge of of the insurer indorsed on said policy. The the insured, foreclosure proceedings be com- mill ceased to be operated on or about the 9th menced, or notice given of sale of any property

of December, 1893, and so continued until it covered by this policy by virtue of any mortgage or trust deed." Held, that as the foreclosure was burned, on or about May 10, 1894. The proceedings complained of were not

defendant knew at the time the policy was menced, with the knowledge of the insured, said

written that said mill was run by water provision of the policy had not been violated.

power, and also knew that for months of (Syllabus by the Court.)

each year it was impossible to operate same, Appeal from district court, Logan county;

on account of the cold weather freezing the C. 0. Stockslager, Judge.

water in the race used for conducting the Action by the Bellevue Roller-Mill Com

water to said mill. There was a small amount pany, a corporation, and the First National

of wheat and bran in said mill from the Bank of Idaho, a corporation, against the

time it closed down until it burned. It is London & Lancashire Fire Insurance Com

shown by the evidence that a feed mill was pany, a corporation, on a policy of insurance.

placed in said mill, and used at several difVerdict for plaintiffs, and judgment thereon.

ferent times through the winter of 1893 and Motion for new trial made and denied. De

1894 to grind small quantities of feed, and fendant appeals. Affirmed.

that in less than 10 days prior to the destrucThe facts are substantially as follows: This

tion of said mill a small amount of feed had action was brought to recover $1,250, with

been ground there. It was further shown interest,-the amount of a policy of insurance

that N. C. Larsen, the president of the rollerissued on September 9, 1893, to the plain

mill company, went quite frequently to said tiff the Bellevue Roller-Mill Company on a

mill, and looked through and around it, and certain flouring mill situated at the town of

had charge thereof. A foreclosure suit was Bellevue, Logan county. The plaintiff the

brought to foreclose the mortgage above reFirst National Bank of Idaho held a mort

ferred to by the said First National Bank gàge against said roller-mill company, on

of Idaho, as plaintiff, against the said rollersaid mill and the machinery therein, to se

mill company, as defendant, on the 21st day cure the payment of a certain $7,000 prom

of April, 1894. The summons in said suit issory note. Said mortgage bears date Oc

was served on said roller-mill company on tober 11, 1892, and said note became due and

the 22d day of April; and within three or payable on July 10, 1893. Said policy of in

four days thereafter N. C. Larsen, the presi. surance was made payable to said First Na

dent of said roller-mill company, informed tional Bank of Idaho as its interest might

Mr. Boone, the agent of said insurance comappear, and placed in its possession by the

pany, that said foreclosure suit had been appellant. The policy of insurance was a re

brought, and urged Mr. Boone to assist him newal of another policy, and renewals had

in borrowing the money with which to pay been made for each of several years preced

off the amount secured by said mortgage. ing the renewal of September 9, 1893, sued

The case was tried by the court, with a jury, on herein. No formal application had been

and a verdict rendered in favor of the plainmade for any of such renewals. It was the

tiff, and judgment entered thereon. A mocustom of Lemmon & Boone, the resident

tion for a new trial was made and overruled. agents of the defendant corporation, at the

This appeal is from the judgment and the expiration of each policy, to issue a new

order overruling the motion for a new trial. policy of renewal upon said property without a written application therefor. It was the W. E. Borah, for appellant. Geo. H. Stewunderstanding of the roller-mill company art and R. F. Buller, for respondents. that said agents should keep said property insured. From time to time their bills for SULLIVAN, J. (after stating the facts as the premium on the policies so issued were above). There being no material conflict in presented to and paid by said roller-mill com- the evidence, the liability of the defendant pany. The policy sued on was issued by said insurance company depends upon a proper agents, and sent directly to the plaintiff the construction of certain provisions of the inFirst National Bank of Idaho, at Boise City, surance policy sued on. and not presented to nor examined by the It is contended that as the mill ceased to assured company. The defense to this suit be operated for 10 consecutive days, withwas (1) that at the time of the alleged loss out the consent of the insurance company the premises was a manufacturing establish- indorsed on said policy, the policy is void

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