Paragoonah Field & Canal Co. v. Edwards

9 Utah 477 | Utah | 1894

Smíth, J.:

In this case there is an appeal from the judgment and from an order denying defendant’s motion for new trial.

The appeal from the order denying a new trial must be disregarded.

The statement on motion for new trial was settled and signed by the judge and the motion for a new trial was founded on it. The statement contains no specifications of insufficiency of the evidence or of errors of law; there were no affidavits used on the motion; ■ Sec. 3402, sub. sec. 3 of the Compiled Laws, provides, among other things:

“ If no specifications be made the statement shall be disregarded on the hearing of the motion."

It results therefrom that the statement must be .disregarded here, and without it there is nothing to be considered on, the appeal froin the order denying the new trial. This leaves nothing to be considered except the appeal from the judgment, and as to whether the judgment is right must be determined from the judgment roll. "We will not undertake an analysis of the pleadings, findings and decree which ■constitute the judgment roll. One point only is made which we deem it necessary to consider and that is, that the decree is uncertain and ambiguous in certain particulars. We think this objection is well taken, but as all the papers are before us, we deem it best we should direct a modification of the decree as we may do, without injustice to any of the parties concerned. We therefore direct, that the cause be remanded to the court below with directions to enter the following instead of the decree appealed from, to wit:

“ DECREE.

“Decree of Court, enjoining maintenance of dam.

“This cause having been regularly called and tried by the court, and the findings of fact and conclusions of law, and the decision thereon in writing, having been rendered, wherein judgment was ordered in favor of plaintiffs, and against defendant and for costs, on motion of attorney for plaintiffs, it is ordered, adjudged and decreed that plaintiffs have judgment as prayed for in this complaint; that defendant, his servants,, agents, and employés, be perpetually enjoined and restrained from diverting or using any water from the regular channel of Bed Creek, Iron county, Utah, except as ordered by the said company plaintiff, or from diverting the said waters from running by the dwellings of the other plaintiffs, or the ditches running by said dwellings;, except by order of the plaintiff corporation, but that the same may be allowed to flow as heretofore pi’ior to the diversion complained of, under the control of said corporation. That, defendant be required to remove from the ditches running to the Paragoonah Field, and by the dwellings of the other plaintiffs herein, all dams and constructions preventing the water from flowing at all times as heretofore by said dwellings and down to said field, and as ordered by said company, or the directors thereof, and restrained from placing in said ditches any obstructions preventing the water from flowing as heretofore, and at the time of the organization of the said company, and not into new lands not .included in said field, and that plaintiffs have judgment for their costs, taxed at.dollars/-’

It is further ordered that each party to this suit, pay, their own costs on this appeal, each party to pay one-half of the costs of the clerk of this court.

Minee, J., and Baetch, J., concurred.