McCague Investment Co. v. Mallin

147 P. 507 | Wyo. | 1915

Beard, Justice.

This is an action brought by plaintiff in error (plaintiff below) against the defendants in error (defendants below) to redeem certain real estate from a tax sale. The cause was tried' to the court without a jury, judgment was rendered in favor of defendants, and plaintiff brings error.

It will not be necessary to set out the facts of the case in this opinion, for the reason that the only assignments of error relied upon and argued in plaintiff’s brief 'are that “The findings and judgment of the court are, (1) contrary to the evidence; (2) contrary to law; and (3) not sus+ tained by the evidence.” The finding of the court is a general finding in favor of defendants, and it is recited in the judgment that the trial of the cause was proceeded with by the introduction of evidence for and on behalf of both plaintiff and defendants and after listening to all of the evidence and arguments of counsel, the court doth generally find fof the defendants and against the plaintiff. .To determine either of the alleged errors presented, a consideration of the evidence, which must be preserved and included in the bill of exceptions, is necessary. It has been uniformly held by this court that when a consideration of the evidence is necessary to determine the questions presented, it must clearly appear from the bill that it contains all of the evidence or at least so much thereof as is necessary to explain the exceptions, and that the mere certificate of the court reporter is insufficient for that purpose. In Wyoming Loan & Trust Co. v. W. H. Holliday Co., 3 Wyo. 386, 24 Pac. 193, the court said: “The only matters complained of in the motion for a new trial which are relied upon by the plaintiff in its brief are that the decision is not sustained by sufficient evidence, and is contrary to law, and that there is error in the assessment of the recovery. To determine either of these questions in this case, it is necessary that the record shall contain all of the evidence given upon the trial, and this should be made clearly to appear in the bill of exceptions.” (See also Wheaton v. Rampacker, 3 Wyo. 441, 26 Pac. 912; Groves v. Groves, 9 Wyo. 173, 61 Pac. 866; State v. Snearly, 18 Wyo. 341, 107 Pac. 389; Fishback v. Bramel, 6 Wyo. 293, 44 Pac. 840; Seng v. State, 20 Wyo. 222, 122 Pac. 631; State ex rel. Dimond Bros. v. Craig, District Judge, 15 Wyo. 439, 89 Pac. 584.)

In Fishback v. Bramel, supra, the court said: “The stenographer's certificate not being provided for by law as a part of the bill, may be and usually is entirely omitted therefrom; therefore, if embodied in the bill, or record, at all, it is immaterial whether it states that the bill contains all the evidence given in the case or not; that fact must be otherwise disclosed, either in the bill itself or in the certificate of the judge who allows and signs the same.”

The only statement either by way of recital in the bill, or the certificate of the judge, with reference to the evidence contained in the bill, is the following recital: “And be it further remembered, within the time allowed by the court therefor, the plaintiff presents to the court this its bill of exceptions, the same including the original exhibits introduced in evidence in said cause and all of them.” According to the well established practice in this state, as shown by the cases above cited, such recital is entirely insufficient. “When error does not affirmatively appear in the record, the presumption is in favor of the decision of the trial court; and, unless the record contains all of the evidence, this court cannot determine any question, the decision of which necessarily requires an examination of all the evidence.” (Wyoming Loan & Trust Co. v. W. H. Holliday Co., supra.) On the record presented no error is made affirmatively to appear. The judgment of the District Court is, therefore, affirmed. Affirmed.

Potter, C. J., and Scott, ]., concur.