McCullough v. McCullough, No. 2056

No. 2056 | Utah | Jan 10, 1910

STRAUP, C. J.

In 1901, in an action wherein the appellant was plaintiff and Mary A. McCullough, defendant, a judgment of divorce was rendered on her counterclaim, in favor of the defendant, and certain real estate awarded to her. In 1902, and in that action, the appellant, by motion and on notice, asked that the decree in respect to the property awarded to defendant be modified. Upon a hearing had the motion was denied. Again, in 1905, the appellant made a similar motion, which on a bearing was also denied. In December, 1908, tbe defendant died. In January, 1909, tbe appellant moved tbe court to substitute tbe administrator of ber estate in tbe action, and again moved tbe court to modify tbe decree so as to award tbe property to tbe appellant. Tbe order of substitution was made, but, on tbe appearance of tbe administrator, and on a bearing, tbe order was, in April, 1909, vacated, and tbe motion to modify tbe decree denied. These various motions were supported and resisted by affidavits. Tbis appeal is taken from tbe order made, or judgment rendered, by tbe court in April, 1909, seeking to bave reviewed tbe proceedings bad with respect to tbem.

Tbe respondent bas challenged our power to review tbem because they are not preserved nor authenticated by a bill of exceptions. Tbe appellant concedes that there is no bill of exceptions, but insists that tbe motions, petitions, and affidavits, and tbe proceedings bad thereon, and tbe rulings and orders made in respect thereof, are a part of 1 the jtidgment roll, and reviewable without a bill of exceptions. We think otherwise. To properly review such rulings and proceedings, it was essential to preserve tbem by, and to present tbem on, a bill of exceptions. Without it we cannot judicially know what they were.

There not being anything before us which is reviewable, it follows that tbe judgment of tbe court below must be affirmed, with costs. Such is tbe order.

ERICK and McOARTY, JJ., concur.