204 P. 202 | Idaho | 1922
In this ease the appeal from the order denying the new trial was dismissed and the case stands on the appeal from the judgment. The specifications of error are that the court erred in giving certain instructions
Respondent contends that the alleged errors in giving and refusing instructions cannot be reviewed, for the reason that the instructions are not contained in the reporter’s transcript or in a bill of exceptions. (Minneapolis Threshing M. Co. v. Peterson, 31 Ida. 745, 176 Pac. 99; King v. Seebeck, 20 Ida. 223, 118 Pac. 292; Crowley v. Croesus Gold etc. Co., 12 Ida. 530, 86 Pac. 536; Steinour v. Oakley State Bank, 32 Ida. 91, 177 Pac. 843.) In the instant case appellant’s praecipe to the clerk called for the instructions given by the court and instructions offered by appellant and refused. They are embodied in. the clerk’s transcript as part of the files in the action. The certificate of the clerk states that his transcript contains a full and true copy of the instructions given and the instructions refused and that they are part of the files. After the decisions just above named, C. S., see. 7163, was amended to read as follows, the amendment being italicized: “On appeal from a final judgment the appellant must furnish the court with copy of the notice of appeal of the judgment-roll and of any bill of exceptions or reporter’s transcript prepared and settled as prescribed in section 6886, upon which the appellant relies, and of all papers, records and files designated in the praecipe filed by appellant with the clerk of the district court.”
This court said, in Stringer v. Redfield, 34 Ida. 378, 201 Pac. 714: “The amendment consisted of adding to the section as it formerly stood the words in italics in the above quotation. It may be and probably is, true that in cases in which the trial judge has filed with the clerk the instructions given and instructions requested by the parties, with his indorsements thereon, and they have been included in the record in response to a praecipe filed by appellant, they may be subject to review under the two sections above mentioned, without being preserved in a formal bill of exceptions. ’ ’
Respondent also contends that, where the issues raised upon an appeal from the judgment have been disposed of on appeal from an order denying a motion for a new trial, the appeal from the judgment should be dismissed. (Coats v. Harris, 9 Ida. 470, 75 Pac. 246.) In that case the court entertained the appeal from an order denying a new trial and disposed of all the points raised. In the instant case the points raised by the appeal from the order denying a new trial were not passed upon, because that appeal was dismissed.
Respondent contends that the specification that the judgment is contrary to law and evidence is not sufficient, citing Caldwell v. Wells, 16 Ida. 459, 101 Pac. 812. In that case the court held that insufficiency of the evidence to justify the judgment is not a ground of motion for a new trial, that a motion for a new trial should be directed to the verdict and not to the judgment. In the instant case we are considering the appeal from the judgment, not the appeal from the order denying a new trial, and the case cited is not in point. The question of the insufficiency of the evidence to support the judgment may be raised on the reporter’s transcript if presented by a specification of insufficiency in the brief. (C. S., sec. 6886, subd. 3; Citizens’ Right of Way Co. v. Ayers, 32 Ida. 206, 179 Pac. 954.) Specification of error No. 4 is as follows: “That the judgment of the court is contrary to law and evidence for each of the reasons hereinbefore set forth.”
This refers back to the preceding specifications, including No. 1, which raises the point that the court erred in refusing to grant the motion for a new trial, and sets forth the particulars in which the evidence is insufficient to support the verdict. While specification No. 1 cannot be considered by itself, because the appeal from the order denying
We come now to the merits of the appeal. The proof, pursuant to the pleadings, shows that the Meadow Talley Live Stock Co-., a corporation, left with respondent for care and feeding certain livestock belonging to it upon which the Weiser National Bank had two chattel mortgages, duly recorded. The mortgage debts fell due and the appellant, as sheriff of Canyon county, took and sold the livestock in foreclosure proceedings initiated by the bank. Respondent contended that he had an agister’s lien which was superior to the lien of the bank’s chattel mortgages. Appellant and the bank refusing to recognize his lien and pay the debt, respondent sued appellant for the amount of his bill and recovered judgment for the full amount upon the verdict of the jury. The court instructed the jury that the mortgage lien of the bank was superior to respondent’s lien unless the jury should find that it was with the knowledge and consent of the bank, express or implied, that the livestock company left the said livestock with respondent for wintering; also that if the Weiser National Bank consented, either expressly or by implication, to respondents keeping and caring for the livestock, the taking of the sheriff was wrongful and he was liable to respondent in damages; also that before the jury could conclude that the mortgagee bank consented by implication to the keeping of the livestock by respondent, it must believe from the evidence that the bank either knew or was in possession of facts and circumstances which would charge it with, knowledge that the stock was being kept by respondent.
The weight of authority and the better reason hold that the lien of a chattel mortgagee is superior to an agister’s lien, where the former is prior in time, unless the services upon which the agister’s lien is based were performed with the consent of the mortgagee, either express or implied from the circumstances. (Wilson v. Donaldson, 121 Cal. 8, 53
The judgment is reversed and the cause remanded for a new trial in accordance with the views herein expressed. Costs are awarded to appellant.