106 P. 610 | Idaho | 1910
— A motion was made in this case to strike from the transcript the statement or bill of exceptions, on the ground that the same purports to. be a statement on motion for a new trial, and that notice of intention to move for a new trial was given but that no motion for a new trial was ever made, and that the proposed statement and bill of exceptions was never used on motion for a new trial. This motion must be overruled on the authority of Steve v. Bonners Ferry Lumber Co., 13 Ida. 392, 92 Pac. 363. It was there held that “all errors properly saved and assigned in a statement of the case may be reviewed upon appeal from the judg
This ease was here on appeal at the January, 1909, term of this court. The plaintiff had recovered judgment in the lower court, and that judgment was reversed by this court-on the grounds of insufficiency of the evidence to support the verdict and judgment. This court observed at that time that the evidence was “most unsatisfactory” and “that the ends of justice will be best served by granting a new trial in this ease.” The cause was remanded and a new trial was had, and practically the same evidence, with slight additions and variations, was introduced on the new trial as’ upon the original trial. The jury again rendered a verdict in favor of the plaintiff. The defendant appealed from the judgment within sixty days after the rendition thereof, and has presented to this court a statement of the evidence given in the case, and asks this court to again reverse the judgment.
The history of the case and the facts and circumstances upon which it turned in the lower court are set out somewhat in detail in the former opinion of this court as reported in 15 Idaho,- 666, 99 Pac. 707. We will refrain, therefore, from any further statement of the case, except to call attention to a few incidents and circumstances which influence our decision on this appeal.
The principal controversy arose over the right of the defendant to have an offset of $305 on account of a cheek given to the appellant, Ream, by one M. Grill, and by Ream indorsed and delivered to respondent, Quayle. The agreement bearing date April 10, 1903, executed in duplicate and introduced in evideneé, says: “It is tó be looked up and see if any of Mr. Grill and Corollo’s checks have been turned to Mr. Quayle. If so, it is to be credited on this settlement. ” The note sued upon bears date April 11, 1905, and if the agreement, bearing date April 10,1903, bears the correct date, then this agreement certainly cannot have reference to the settlement wherein and whereby the note sued on was executed.
“It seems to me like the notes that he took down [referring to Quayle taking the notes to a bank at Salt Lake] they didn’t answer, and he came back and then I gave him the second note, he said he wanted it to get security. If I remember rightly, it was in the spring of 1903, I am not sure of that, only I know that I took up the notes and gave the $2,800 note and took up those other notes, and it was done away from home, back of Brennan’s store.”
At other places in the evidence, however, Ream insists that this note was executed in September as its date indicates.
There is one bit of evidence, or rather circumstance, that appears in this record that was not before us on the last hearing of this case. It is the mortgage that was given to secure the note of $2,814.82, to which is attached what purports to be a copy of the note. The mortgage bears date September 1, 1903. It has attached to it a certificate of acknowledgment made by De Meade Austin, notary public, under date of September 1, 1903, with his seal attached. Immediately following the certificate of acknowledgment is the affidavit made by Ream, which the law requires to accompany chattel mortgages, to the effect that the mortgage is made in good faith and without any design to hinder, delay or defraud creditors. The jurat to this affidavit is signed and attested by De Meade Austin, notary public, under date of “February 1, 1903.” The instrument itself shows by indorsement that it was filed with the recorder of Bear Lake county on the 9th day of October, 1903. Now, these dates are in hopeless confusion and are irreconcilable. This is in harmony with the entire case in the matter of confusion of dates and facts. The certificate of acknowledgment is of the same date of the execution of the mortgage. The affidavit by the mortgagor appears to
The facts of this case have been but very little clarified and elucidated to our minds by reason of a new trial, but had we seen and heard the witnesses we might be clearer on the subject. The fact is that twenty-four men, who are qualified jurors of Bear Lake county and evidently neighbors and acquaintances of appellant and respondent, have heard the evidence in this ease and insist on believing that the defendant is indebted to the plaintiff in the sum mentioned in their verdict, and that the plaintiff is telling a truthful story when he says that he has settled with the defendant for this $350 check and the other causes of counterclaim, and that the defendant is still indebted to him the sum of this note. The twenty-fifth man, who is the judge of the district court, agrees with the jurors and declines to disturb their verdict. While we feel that the evidence in this record is very meager to support the verdict and judgment, still there is a conflict on many facts and circumstances, and there is some evidence to support the verdict and judgment. We think, in view of all the facts and circumstances of the case, that the judgment should be affirmed, and it is so ordered. Costs awarded in favor of the respondent.
Petition for rehearing denied, Stewart, J., dissenting.