150 P. 298 | Utah | 1915
Lead Opinion
Our statute permits an appeal from only a final judgment. It is the settled practice in this jurisdiction that an appeal does not lie from an order granting or overruling
We have before us a bill of exceptions. It shows that the plaintiff, the appellant, to support the issues in his behalf, adduced his evidence and rested. It then recites that the defendant interposed a motion for a nonsuit; that the jury were excused, and, after presentation and argument of the motion, were returned into court. Then:
“The Court: In this case the court sustains the motion for a nonsuit, and judgment for nonsuit may be granted. ’ ’
It further recites:
“Whereupon the jury are, by the court, discharged from further consideration of the case.”
The certificate recites:
‘ ‘ The above and foregoing contains all the evidence and testimony in the above-entitled cause and all the proceedings, all of the exceptions taken, and it is a full, true, and correct transcript of the testimony and other proceedings had on the trial of said cause,-and the same is hereby allowed, settled, and signed by the court as and for the bill of exceptions herein. ”
It is thus seen that what is settled are trial proceedings, nothing more.
Attached to the transcript is what is denominated an “entered order. ’ ’ Omitting the title of the court and cause, it is:
“The attorneys for the respective parties and the jury heretofore impaneled and sworn to try the within case being now present and ready, the further trial of the ease is resumed. The court having considered the defendant’s
These are pointed to as constituting the judgment or recitals of it. The order is not a part of the judgment roll. Laws Utah 1911, c. 94. It is not contained in the bill, nor made a part of it, nor settled in the bill. It thus is neither part of the judgment roll nor of the bill. We therefore cannot notice it. All we have, then,- is the bill. The recitáis at most but show an order granting a nonsuit, or directing a judgment of nonsuit. It does not show a judgment, one in fact rendered or entered. From what is recited, it may be said the case was sent out of court. But that a judgment was in fact rendered or entered is left to argument and deduction. If a judgment was rendered and entered, it ought to appear by the court’s record and the judgment book. The bill contains no such recitals; nor is such fact otherwise made to appear. It is generally admitted, but not always observed, that what ought to be of record must be proved by record and by the right record.
A judgment is the final determination of the rights of the parties. To ascertain what was in fact determined, recourse should be had, not to a bill of exceptions, but to the judgment itself, or the judgment record or recitals of
We therefore think the appeal should be dismissed. Such is the order. Respondent to recover costs.
Concurrence Opinion
I concur. At first blush I thought this case fell within the ruling made in Robinson v. Salt Lake City, 37 Utah 520, 109 Pac. 817, where we held a somewhat informal judgment of nonsuit sufficient to support an appeal. Upon a careful examination of the record in this case, I am convinced that there is no similarity-between the two cases. Here no judgment of any kind is shown to have been entered, and, as stated by Mr. Chief Justice STRAUP, the order sustaining the motion for a nonsuit is not appealable in this jurisdiction; hence we are without jurisdiction to hear the appeal, and it therefore should be dismissed.