143 P. 218 | Utah | 1914
This is an action to recover damages from the respondents for the alleged destruction of appellant’s growing crops. Two causes of action were stated in the complaint. Ifi the first one it was in substance alleged that the respondents made an opening in a certain fence through which certain range stock passed onto appellant’s land and there destroyed the crops growing thereon of the value of $2,000. In the second cause of action it is alleged that respondent, in constructing a certain railroad grade in the vicinity of appellant’s lands, “covered and destroyed the irrigation ditch conveying water onto plaintiff’s land, and thus deprived the plaintiff” of the necessary water to irrigate its crops, by reason of which it was damaged in the sum of $500. The respondent San Pedro, Los Angeles & Salt Lake Railroad Company, filed its answer in which (1) it denied all the allegations respecting the injury, and (2) pleaded facts showing that it had contracted with the respondent Utah Construction Company to construct the railroad grade mentioned in the complaint. In short, it pleaded the defense of independent contractor. The respondent Utah Construc-lion Company, in its answer, practically denied all the allegations of the complaint except the corporate existence of the parties. Upon the trial dll the evidence introduced by appellant to connect the Utah Construction Company ivith the alleged injury was the contract entered into between it and the railroad company. The construction company thereupon moved the court to dismiss the action as against said company upon the ground that appellant had failed to produce any evidence connecting said company with the wrongs and injuries complained of. The court sustained the motion and dismissed the action as against the construction company, and the appellant excepted to the ruling and has assigned the same as error.
After the ease had been dismissed as against the construction company, appellant proceeded to introduce its evidence against the railroad company. After doing so it rested its case, and the railroad company made a motion for nonsuit upon various grounds which are specifically stated in the motion. The court sustained the motion and entered judgment accordingly. Appellant assigns the ruling .of the court, in sustaining the motion as error.
The last assignment relates to the court’s refusal to strike the cost bill which was filed in the case by the railroad company. The motion to strike is as follows:
The judgment was entered on the 14th day of February, and the cost bill filed on the day following.
It will be noticed that the motion to strike is based upon the sole ground that the cost bill “was not filed within the time allowed by law, nor within any extension of such time allowed by the court, or otherwise.” In their brief, counsel for appellant have, for the first time, raised and argued other grounds than the one presented in the motion to strike. Counsel for respondents contend that we cannot consider any other ground save the one stated in the motion. In view that no other ground to strike the cost bill was presented or argued in the court below than the one stated in the motion, we are limited to that ground in reviewing the court’s ruling on the motion. The court, in its appellate jurisdiction in law cases, is a court of review merely, and must confine itself to a review of such questions, as were presented to the trial court and ruled on by that court, and to which ruling proper exceptions have been taken, where the statute itself does not give an exception. The only question, therefore, that we can review is whether the cost bill in question was filed within the time required by our statute. In the ease of Sellick v. De Carlow, 95 Cal. 644; 30 Pac. 795, the court’s ruling is fairly reflected in the headnote, which is as follows :
“A cost bill filed before tbe filing of tbe findings and entry of judgment is filed before tbe time authorized by law, and should be stricken out upon motion.”
That case is followed in Hotchkiss v. Smith, 108 Cal. 285-287; 41 Pac. 304. While in the opinion handed down by this court in Smith v. Nelson, 23 Utah 512, it is not disclosed when the cost bill there in questoin was filed, yet in the printed abstract filed in that case it is made to appear that the judgment appealed from was entered on September 24, 1900, and the cost bill was filed September 29, 1900. The court there held that the District Court did not err in sustaining the Clerk’s act of inserting certain costs in the judgment more than two days after the costs, were taxed. While
This disposes of all the questions that were properly presented for review.
The judgment is affirmed, with costs to respondents.