1. Upon a motion to dismiss an appeal by reason of failure of appellant to comply with the rules of the court with reference to filing and service of transcript and briefs, affidavits tending to excuse such laches must be presented on the hearing of the motion, where notice of the hearing has been served on appellants. It is too late to present such affidavits on a motion to reinstate the cause, after motion to dismiss has been heard and allowed.

2. Upon a motion to reinstate a cause upon the calendar once dismissed, the affidavit should show apparent merit.

(Syllabus by the Court.)

Appeal from district court, Alturas county; C. O. Stockslager, Judge.

Action by Philip Shenon against Martin H. Jacobs. Judgment for plaintiff, and defendant appeals. Appeal dismissed. Motion to reinstate denied.

On November 10, 1894, attorney for respondent placed on file a notice to attorney

lant made a motion to set aside the order of dismissal, and filed affidavit of facts tending to show excuse for the default of appellant. The court says that, if there are circumstances which excuse the default, they must be shown by affidavit at the time the motion to dismiss is made, and cannot be heard after the motion to dismiss has been granted, and on a motion to set aside the order of dismissal. There should also be an affidavit or some showing of merits in the appeal. In Hagar v. Mead, 25 Cal. 599, the court says that, on motion to reinstate cause once dismissed by reason of laches in filing of transcript under the rules, the affidavits should show that in the opinion of counsel, at least, there are substantial errors in the record, which ought to be corrected by this court. In the case at bar no effort is made to show that there is any apparent error in the trial or hearing of the cause in the court below. We think, in order to reinstate an appeal once dismissed, the appellant should show such a condition of the record as would indicate that there was apparent error in the

he would move the court to dismiss the appeal, for the reason that no copies of either transcript or briefs have been served upon the respondent or upon his attorney within the time required by the rules of the supreme court. Copies of the said notice of motion and affidavits in support of the motion were served upon counsel for appellant on November 24, 1894. On the latter date the cause was continued for the term, and the motion to dismiss was set for hearing on the first day of the next term, and notice of this order was also sent appellant's attorney on November 24, 1894, by the clerk of this court. Court convened on January 14, 1895. Counsel for respondent appeared to press the motion for dismissal, coming from Pocatello for Atthe purpose,-a distance of 250 miles. The torney for appellant did not appear. hearing was delayed two days, awaiting his appearance. Appellant's attorney then appeared. The motion was heard upon affidavits presented by respondent and arguments of counsel, and the cause dismissed. On January 17, 1895, appellant moved the court to reinstate cause. and presented, in support thereof, affidavit of himself, averring that he had mistaken and misunderstood the rules of the court.

F. E. Ensign, for appellant. R. P. Quarles, for respondent.

is made to do so.

This cause was before the supreme court on another appeal (29 Pac. 44), from a trial had therein in the court below; and, upon an examination of the transcript in the original appeal and the transcript now brought up, there seems to be no error appearing in the latter. The motion to reinstate must be denied, and it is so ordered. Costs awarded respondent.

SULLIVAN and HUSTON, JJ., concur.

(4 Idaho, 303) WINTERS et al. v. RAMSEY, State Auditor. (Supreme Court of Idaho. Jan. 29, 1395.) STATE AUDITOR-ISSUE OF WARRANT-MANDAMUS 1. Where contract for construction of s section of the state wagon road stipulates that final payment will be made when the contract is executed to the satisfaction of the state wagon road commission and the board of examiners, the auditor cannot be required to issue warrant until the road is examined by said board of examiners, and their report made; and said board is entitled to reasonable time within which to make such examination.

2. The bill for such final payment must also be submitted to state board of examiners. (Syllabus by the Court.)

Application by William Winters and others against F. C. Ramsey, as state auditor, for a peremptory writ of mandamus. Denied.

This is a petition to compel the state auditor to issue warrant to plaintiffs for the sum of $5,950, balance claimed to be due plaintiffs for the complete performance of their certain contract with the state wagon road commission of Idaho for the construction of a division of the so-called "state wagon road." The facts, as stated and ad

v.39P.no.2-13

of December, 1893, the plaintiffs made a contract with said state wagon road commission for the construction of a certain division of said road; that on or about the 20th day of October, 1894, the plaintiffs fully completed said division in accordance with said contract and the specifications attached thereto; that the engineer of said state wagon road commission reviewed said road, and duly received and accepted the same as complete and finished, to the satisfaction and acceptance of said engineer. On the 5th day of January, 1895, the plaintiffs presented their said bill to the said state wagon road commission for the said balance due, to wit, $5,950; and said wagon road commission approved the same, audited and allowed the bill, authorized its payment, and certified the same to the state auditor. Said bill, so audited and approved, was then presented to the state auditor, defendant herein, with the request that he draw a state warrant to plaintiffs for said amount. The state auditor refused so to do, for the reason that the governor of the state had not been notified by said state wagon road commission of the completion until December 30, 1894, and that then, on account of the fall of snow and the shortness of the time, it was impossible for the reviewers appointed by the governor to examine and report upon said road. The attorney general, appearing for the auditor of state, enters a motion to quash the alternative writ herein, because the petition does not state the necessary facts to justify the issuing of the writ.

W. E. Borah, for plaintiffs. Geo. M. Parsons, Atty. Gen., for defendant.

MORGAN, C. J. (after stating the facts). This raises the question as to whether it is necessary to have an examination of said division of said state wagon road by the reviewers appointed by the governor, and a favorable report from them, before the state auditor is authorized to issue the warrant in final payment for said work. It is perhaps sufficient to say upon this subject that both the plaintiffs and the state wagon road commissioners, being both parties to the contract for the construction of said road, have expressly stipulated in said contract that the said plaintiffs shall receive final payment when they have executed their contract to the satisfaction, approval, and acceptance of said wagon road commissioners, and the board of examiners appointed to finally inspect, approve, and accept said division of said road. We find nothing in the statutes or constitution of the state forbidding the insertion of such a clause in the contract; and, as the plaintiffs themselves have joined the state wagon road commis

sioners in making the approval of the board of examiners a condition precedent to receiving final payment, we must hold them to a compliance therewith. A reasonable time and opportunity must be allowed the board of examiners, called in the statute the “examining board," to make this final examination and report thereon. This examination has not yet been made, and, on account of the lateness of the season, they have had no opportunity to make such examination. We think this provision in the contract was wise, as it furnishes an additional safeguard to the state.

It is also contended by the defendant that this claim must be submitted for examination to the board of examiners, consisting of the governor, secretary of state, and attorney general. Section 18, art. 4, Const., provides that "the governor, secretary of state and attorney general shall constitute a board of examiners, with power to examine all claims against the state, except salaries and compensation of officers fixed by law, * and perform such other duties as may be prescribed by law." This clause of the constitution is supplemented by the statute (1 Sess. Laws Idaho, p. 46, § 3), as follows: "It shall be the duty of the board [state board of examiners] to examine all claims against the state, except salaries and compensations of officers fixed by law. * *The board may approve or disapprove any claim or demand against the state, or any item thereof, or may recommend a less amount in payment of the whole, and a decision of a majority of the members shall stand as the decision of the board. Section 4 provides that if the auditor shall draw his warrant for any claim or part of a claim or item thereof, which is disapproved by the board, he shall be liable upon his official bond for the same if any loss shall accrue to the state therefrom. These sections of the constitution and the statute require all claims against the state of an unliquidated character shall be submitted to this board for approval or rejection before the auditor shall draw his warrant therefor. This claim is of the class that must be submitted to this board, and approved by it, before the auditor can draw a warrant in payment thereof. This position of the court is upheld in the case of State v. Hallock (Nev.) 22 Pac. 123, in which this precise clause in the constitution of Nevada is passed upon by the court, and wherein the same position is taken by the court. These conditions precedent not having been complied with, the motion to quash the alternative writ is allowed, and the petition dismissed.

SULLIVAN and HUSTON, JJ., concur.

The de

HUSTON, J. This case was first before us on an appeal from judgment and order refusing new trial. See Murphy v. Montandon, 2 Idaho, 1048, 29 Pac. 851. Upon that appeal the order and judgment of the district court were reversed, and the cause remanded for a new trial. Upon the second trial, verdict and judgment were rendered in favor of the defendant, from which, and from the order refusing a new trial, the present appeal is taken. The action was brought upon a release bond in attachment. fense was that the attachment was issued upon a false affidavit, in that it appeared that, at the time the affidavit was made and filed and the attachment issued, the plaintiff had in his possession, as a pledge or security for the payment of the note sued upon, a certain check or order upon one T. B. Shaw, for an amount equal, at least, to the sum sued for, which had been given the plaintiff by the defendant in the attachment suit at or about the time of executing the note sued on, and received by the plaintiff as security for said note; and therefore the statutory statement, in the affidavit of the plaintiff in the attachment suit, that the payment of the sum sued for had not been secured by any mortgage or lien upon real or personal property, or any pledge of personal property, was not true, and, this fact appearing by the record, this court held that the attachment was void. Murphy v. Montandon, supra. The only material difference, if it is material, which we find in the record in this case from that before presented, is in the introduction in evidence by the plaintiff of the judgment roll in the original attachment suit. The contention of the appellant is predicated largely upon alleged errors in the rulings of the court upon the pleadings, and errors in the findings of the court in that action. We cannot review that record for the purpose of considering any alleged errors therein. It is not here for any such purpose, nor can it be made to serve any such end. While the record shows some conflict in the evidence, the jury having passed upon it, in recognition of a well-established principle, this court will not, where the evidence is conflicting, disturb the verdict. We think the demurrer to

the amended answer was properly overruled. The judgment of the district court is affirmed, with costs.

MORGAN, C. J., and SULLIVAN, J., con

cur.

(4 Idaho, 329)

GRIFFITHS v. MONTANDON. (Supreme Court of Idaho. Feb. 11, 1895.) BILL OF EXCEPTIONS-RESETTLEMENT AND AMEND

MENT.

When an omission or mistake has occur. red in the settlement of a bill of exceptions, the judge may, upon proper application, allow a resettlement thereof, provided that it is asked before the transcript is sent to this court, and the mistake or omission claimed is shown by documentary evidence, or is not denied by the adverse party. But if such omission or mistake rests in the recollection of judge or counsel, and not admitted by the adverse party, a correction or resettlement should be denied.

(Syllabus by the Court.)

On rehearing. Affirmed.

For former opinion, see 35 Pac. 704.

SULLIVAN, J. This case was heard at the January term, 1894, of this court, and the decision then given will be found in 35 Pac. 704. A rehearing was granted, upon the ground of an unintentional error of the trial judge in permitting a misleading or false certificate to inadvertently be made a part of the bill of exceptions. The petitioner now asks to have stricken from the bill of exceptions the following, to wit: "On none but the foregoing facts and record the motion to retax costs was heard on the 27th day of July, 1893, and on July 28, 1893, in absence of defendant, the court did retax the same, or file its findings on the matters theretofore submitted by the respective parties,"-and to insert in said bill of exceptions, in lieu thereof, the following, to wit: "To be inserted in lieu of folios 63 and 64 in transcript on appeal in the case of John C. Grifiths vs. A. F. Montandon, from the Fourth district, county of Alturas: "This motion was heard on the foregoing facts, herein set forth, and on the entire record of the cause as tried in the district court, including the pleadings and all the papers on file, the statements and testimony of counsel at the time of said hearing, the evidence in the cause given in the district court, and all of the proceedings had therein, and the facts within the knowledge of the court as to all the matters herein stated, also as to the presence of witnesses, the necessity for their presence, and the reasons for not calling them at the trial; the decision being based on said evidence and record, and after a full and complete hearing, and after argument by the respective counsel for plaintiff and defendant, and after examination and investi-. gation of all the points raised in defendant's affidavit and motion to retax. Said defendant, Montandon, being further informed, after the decision upon said motion, that if he

still insisted that the parties would not demand their fees as alleged in his affidavit, that he would be permitted to file receipts from said parties, and the clerk would be instructed to credit him with the several amounts as shown in said receipts on the said cost bill as retaxed. C. O. Stockslager, Dist. Judge of the Fourth Judicial Dist. of Idaho.''

no

It will be observed that the respondent seeks a resettlement of the bill of exceptions, or seeks to inject into the bill a statement from the trial judge to the effect that he considered other evidence than that contained in the bill on the hearing of the motion to tax costs. The facts are as follows: The order taxing costs from which this appeal was taken was made on July 28, 1893. The proposed bill of exceptions was served on the respondent August 7, 1893, and amendments to said bill were proposed. The bill of exceptions was settled on the 4th day of October, 1893. Thereafter, and before the transcript was filed in this court, the respondent made application to the trial judge for a resettlement of said bill of exceptions, which application was granted, and the bill in the resettlement thereof was amended to some extent. The case was thereafter submitted to this court for final decision, upon oral argument of the respective counsel and their printed briefs. No suggestion of diminution of record was made prior to the final submission and determination of said case. The transcript shows that appellant endeavored to bring up all of the evidence considered by the judge in the hearing of said motion. He served his proposed bill of exceptions on the attorneys of the adverse party, and presented it to the judge for settlement. No amendments were proposed. The bill was settled by the judge. Thereafter, on the application of. respondent, a resettlement of the bill of exceptions was had. The bill contains the statement that it includes all of the evidence considered on the hearing. The change sought is very sweeping. The judge desires to have the bill now say that it does not contain all of the evidence considered on the hearing, and that he took into consideration facts within his own knowledge in the determination of said motion.

When a motion to tax costs is heard upon evidence within the knowledge of the judge, such evidence should be presented on the hearing, so that a party may be fully advised of all the evidence considered. Any other rule would enable the judge to decide such motion upon evidence not produced on the hearing, and evidence of which the party There is no had no knowledge whatever. claim that the matter sought to be eliminated from said bill of exceptions was not contained in the proposed bill served on respondent's attorneys, or that it was not contained in the bill as settled and resettled, as above set forth; but, by an oversight of the judge, it is claimed the error crept into or rather remained in the bill as settled. If we now

grant this motion, we should, on application of appellant, grant a diminution of the record, and permit all of the evidence to be brought here. This would require the judge to certify up the facts, within the knowledge of the court, that he took into consideration in deciding said motion, as well as all other evidence considered by him. Under the rules of this court, upon proper suggestion of diminution of record, the court may order certain corrections to be made, and send the transcript to the court below for that purpose; but a resettlement of the bill of exceptions, such as is sought here, cannot be allowed after the transcript is sent to this court. In People v. Romero, 18 Cal. 90, the court says: "When a mistake or omission has occurred, the judge may allow a resettlement, provided it be asked before the transcript is sent to this court, and the mistake or omission is supported by documentary evidence, or is not denied by the adverse party. But, when the existence of the alleged mistake or omission rests in the mere recollection of the judge or of counsel in the case, and it is not admitted by the parties, a resettlement should be refused." We think this the correct rule; for, if any other rule obtained, it would lead to carelessness in the preparation of bills of exceptions, and almost endless contentions in their final settlement. This leaves the case for a rehearing on the same record that it was formerly heard, and upon that record the decision heretofore given by this court must be affirmed; and it is so orderd, with the costs of this appeal and rehearing in favor of appellant.

MORGAN, C. J., and HUSTON, J., concur.

1. A policy of fire insurance on the flouring mill of the plaintiff the Bellevue Roller-Mill Company, dated September 9, 1893, for one year, provided as follows: "This policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if the subject of insurance be a manufacturing establishment, and cease to be operated for more than ten consecutive days." It appeared that said mill was compelled to suspend operations during a portion of each year because of the water freezing in the mill race which conducted it to the mill, and that the agent of the insurance company, knowing this fact, had granted repeated renewals of the insurance on said mill for periods of one year, and that on the 9th of September, 1893, the policy sued on was issued as a renewal for one year of a former policy, without written application, and received the premium therefor. On December 9, 1893, the mill closed down, and so remained until May 10, 1894, when the loss occurred. Held that, under the facts of this case, the insurance company had waived the provision of the policy above quoted.

2. Said policy contains the following provision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if a building herein described, whether intended for occupancy by owner or tenant, be or become vacant or unoccupied, and so remain for ten days." Held, under the facts of this case, that the mill building did not become "unoccupied," within the meaning of that word as used in said policy.

3. Said policy contains the following provision: "This entire policy, unless otherwise provided by agreement indorsed hereon or added hereto, shall be void if, with the knowledge of the insured, foreclosure proceedings be commenced, or notice given of sale of any property covered by this policy by virtue of any mortgage or trust deed." Held, that as the foreclosure proceedings complained of were not commenced, with the knowledge of the insured, said provision of the policy had not been violated. (Syllabus by the Court.)

Appeal from district court, Logan county; C. O. Stockslager, Judge.

Action by the Bellevue Roller-Mill Company, a corporation, and the First National Bank of Idaho, a corporation, against the London & Lancashire Fire Insurance Company, a corporation, on a policy of insurance. Verdict for plaintiffs, and judgment thereon. Motion for new trial made and denied. Defendant appeals. Affirmed.

The facts are substantially as follows: This action was brought to recover $1,250, with interest, the amount of a policy of insurance issued on September 9, 1893, to the plaintiff the Bellevue Roller-Mill Company on a certain flouring mill situated at the town of Bellevue, Logan county. The plaintiff the First National Bank of Idaho held a mortgåge against said roller-mill company, on said mill and the machinery therein, to secure the payment of a certain $7,000 promissory note. Said mortgage bears date Oc tober 11, 1892, and said note became due and payable on July 10, 1893. Said policy of insurance was made payable to said First Na tional Bank of Idaho as its interest might appear, and placed in its possession by the appellant. The policy of insurance was a renewal of another policy, and renewals had been made for each of several years preceding the renewal of September 9, 1893, sued on herein. No formal application had been made for any of such renewals. It was the custom of Lemmon & Boone, the resident agents of the defendant corporation, at the expiration of each policy, to issue a new policy of renewal upon said property without a written application therefor. It was the understanding of the roller-mill company that said agents should keep said property insured. From time to time their bills for the premium on the policies so issued were presented to and paid by said roller-mill company. The policy sued on was issued by said agents, and sent directly to the plaintiff the First National Bank of Idaho, at Boise City, and not presented to nor examined by the assured company. The defense to this suit was (1) that at the time of the alleged loss the premises was a manufacturing establish

ment, and that, contrary to the provisions of said policy, the insured had ceased to operate the same, without the consent of defendant indorsed on the policy; (2) that said mill building had, contrary to the provisions of said policy, for a period longer than 10 days, become vacant and unoccupied, without the agreement of the insurer indorsed on said policy; (3) that foreclosure proceedings were commenced without the consent of the insurer indorsed on said policy. The mill ceased to be operated on or about the 9th of December, 1893, and so continued until it was burned, on or about May 10, 1894. The defendant knew at the time the policy was written that said mill was run by water power, and also knew that for months of each year it was impossible to operate same, on account of the cold weather freezing the water in the race used for conducting the water to said mill. There was a small amount of wheat and bran in said mill from the time it closed down until it burned. It is shown by the evidence that a feed mill was placed in said mill, and used at several different times through the winter of 1893 and 1894 to grind small quantities of feed, and that in less than 10 days prior to the destruction of said mill a small amount of feed had been ground there. It was further shown that N. C. Larsen, the president of the rollermill company, went quite frequently to said mill, and looked through and around it, and had charge thereof. A foreclosure suit was brought to foreclose the mortgage above referred to by the said First National Bank of Idaho, as plaintiff, against the said rollermill company, as defendant, on the 21st day of April, 1894. The summons in said suit was served on said roller-mill company on the 22d day of April; and within three or four days thereafter N. C. Larsen, the president of said roller-mill company, informed Mr. Boone, the agent of said insurance company, that said foreclosure suit had been brought, and urged Mr. Boone to assist him in borrowing the money with which to pay off the amount secured by said mortgage. The case was tried by the court, with a jury, and a verdict rendered in favor of the plaintiff, and judgment entered thereon. A motion for a new trial was made and overruled. This appeal is from the judgment and the order overruling the motion for a new trial.

W. E. Borah, for appellant. Geo. H. Stewart and R. F. Buller, for respondents.

SULLIVAN, J. (after stating the facts as above). There being no material conflict in the evidence, the liability of the defendant insurance company depends upon a proper construction of certain provisions of the insurance policy sued on.

It is contended that as the mill ceased to be operated for 10 consecutive days, without the consent of the insurance company indorsed on said policy, the policy is void