Hyde v. Harkness

1 Idaho 638 | Idaho | 1876

Clark, J.,

delivered the opinion.

Hollister, O. J., concurred.

This is an action for malicious prosecution, commenced in the district court of the third judicial district in and for Oneida county, ■ on the twenty-fourth day of September, 1873. The cause was tried in said court at the July term thereof, 1875, by the court sitting with a jury. On the twenty-second day of July, 1875, the jury returned their verdict in favor of the plaintiff, now respondent, and for three thousand five hundred dollars damages. Judgment was entered for the said sum and costs. The defendant, now appellant, moved for a new trial, and on the tenth day of August the motion came on to be heard before the judge at chambers, in Malad city, in said Oneida county.

The motion was to vacate the judgment and for a new trial. After hearing the motion, the court ordered as follows, to wit: “ Ordered, that a new trial.be allowed in this action, -with costs, to abide the event of the suit, unless within five days from this date the plaintiff, now respondent, shall release and discharge the sum of one thousand dollars, part of said judgment, in which case the motion to vacate the judgment and for a new trial be and the same is ordered overruled; and the judgment heretofore entered herein be modified, so that the damages to be recovered by plaintiff from the defendant shall be for the sum of two thousand five hundred dollars, besides the costs of suit.”

On the twelfth day of August, 1875, the plaintiff, now respondent, by his attorneys, in writing, released and discharged the sum of one thousand dollars, a part of the said judgment, in accordance with the order of the court herein set forth; by reason of this release and discharge, and the order of the court aforesaid, the motion to vacate the judgment and for a new trial was overruled. On the thirtieth day of September, 1875, the defendant filed his notice of appeal to this court, from the judgment and order overruling his motion for a new trial.

On the twentieth day of January, 1876, this cause came on to be heard on respondent’s motions to dismiss the appeal from the order refusing a new trial, and to strike out the statement from the transcript in this action. This court, after considering the motions, dismissed the appeal from the order denying a new trial, and ordered that the statement used on the motion for new trial be stricken from the transcript in tbis case. By reference to tbe opinion of tbis court on tbe motion to dismiss tbe appeal from tbe order denying a new trial, and to strike out tbe statement, it will appear that tbe appeal was not taken witbin tbe time prescribed by statute, and tbat tbe statement of tbe case used son tbe motion for new trial was not certified and allowed so as to entitle it to become a part of tbe record in tbis action. (Sec. 437 Revised Laws of tbis territory, third subdivision of Sec. 211 Revised Laws.)

Tbe statement of tbe case being stricken from tbe record, and there being no bill of exceptions, there is nothing for tbis court to review, save tbe pleadings and order of tbe court discharging a part of tbe judgment first entered herein, and tbe judgment; and as there appears no error in tbe pleadings, verdict, order, or judgment,

Tbe judgment for two thousand five hundred dollars, and costs of suit, must be affirmed, and tbe same is affirmed accordingly, with costs in tbis court, in favor of tbe respondents.