64 P. 233 | Idaho | 1901
Lead Opinion
This case is here for review on appeal from the district court of Bear Lake county. The record shows that on the second day of February, 1893, the defendants executed and delivered their promissory note to plaintiff, as cashier of the Bank of Montpelier, for the sum of $200, due in three months after its date. The note shows the following indorse-ments : “Sept. 1, paid $20.00.” “Paid on int. $12.00 by Strong, check dated Sept. 21, ’97, int. Dec. 14, ’97.” On the twenty-second day of August, 1899, plaintiff commenced his action in the district court of Bear Lake county against the defendants to recover on this note, and after the usual allegations for recovery in actions of this character, he further alleges that on the twenty-first day of September, 1897, the defendant, E. Strong, made, signed and delivered to the plaintiff his certain check, of which the following is a true and perfect copy, to wit: “Montpelier, Idaho, Sept. 21, 1897. No. 0. Bank of Montpelier: Pay to E. Strong, or bearer, $12 (twelve dollars). Pierson note. Hay baled. E. Strong,” — and ordered and directed that said cheek
The first assignment of error “is the settlement of defendant’s bill of exceptions in the form it is in.” The second: “Aside from the merits of the case, the court erred in granting a new trial upon the record as it stands, and requiring the plaintiff to bring this record here, in the shape it is in, over the objection of the plaintiff, and contrary to the rules of this court: (a) The bill of exceptions is not according to the rules
The next alleged error is that the court does not say upon what grounds or for what reasons a new trial is granted. In passing upon the motion for a new trial the court says “that the said verdict and judgment are not sustained by the evidence, and are contrary to the law and the evidence, and that errors of law occurred at the trial of said cause.” In Lowe v. Long, 5 Idaho, 122, 47 Pac. 39, to which our attention is called, this court said. “We are not advised through the record as to what was the ground upon which the motion for a new trial was granted. We must be controlled by the record presented to us, however distasteful it may be to overrule the decision of the lower court in a matter which is of necessity largely one of discretion.” The facts in this case are not applicable to .the one at bar. In the one under consideration the court gives reasons for granting a new trial, either of which, if well founded, is sufficient to warrant the order, while in Lowe v. Long the inference to be drawn from the opinion is that the court granted a new trial without giving any reason therefor, and none appeared in the record. Our attention is also called to Sweetser v. Mellick, 5 Idaho, 783, 51 Pac. 985. The syllabus says: “Where the record -does not show the grounds upon which a new trial is granted, and no error warranting a new trial is apparent from the records the order granting a new trial will be reversed” — and cites Lowe v. Long. It will be observed in both of these cases that this court said, where the reasons (not the facts) were not given by the trial court and did not appear in the record, the order would be reversed. The court says in the order that the new trial is granted by reason of errors of law during the trial and insufficiency of the evidence to support the judgment. If either of these reasons are apparent of record, it is sufficient to support the order of the court. We see no error in this ruling of the trial court.
The next error alleged by appellant is: “1. The payment of the twelve dollars upon the note by defendant, E. Strong, evidenced by the check, was sufficient and competent evidence of an existing and continuing debt to remove the bar of the stat
Rehearing
PETITION EOR REHEARING.
This is a petition for a rehearing. On an examination of it we do not find anything presented but what was fully considered on the original hearing. We are satisfied that the conclusion reached is correct, and the petition for rehearing is denied.