148 P. 341 | Wyo. | 1915
This is an action brought by the defendant in error against the plaintiff in error to recover $1,477.50 and interest claimed to be due on a contract of insurance. The case was tided to the court without a jury and judgment rendered in favor of the Lumber Company and against the Insurance Company for the amount claimed, and it brings error.
The Lumber Company, plaintiff below, alleged, in substance, that about December 19, 1910, the Insurance Company, in consideration of the regular premium of $22.50, undertook and agreed with plaintiff to insure. and did insure plaintiff for the period of one year in the amount of $1,500 against damage due to loss by fire of a certain fi-ame building in Lost Springs, Wyoming, known as the building of B. F. Billingsley, which was at the time of making the contract in course of construction, and the material therefor was being furnished and supplied by plaintiff; that at said time the plaintiff had furnished for said building materials of a value of more than $1,500.00, no paid of which
Counsel for defendant in error contend in their brief and also in oral argument that the record presents no questions for determination by this court for the reasons that a consideration of all of the exhibits introduced in evidence on the trial is necessary to a determination of the matters complained of, and that there is no bill of exceptions properly certified to this court containing said exhibits.
There is on file a volume or bundle of papers containing the pleadings, motions, etc. (but not containing the evidence or bill of exceptions), and certified by the clerk of the District Court to contain all of the original papers in the case. There is also filed another volume or bundle of papers entitled, “Transcript of Evidence” (not certified by the clerk as papers in the case, or accompanied by an index as required by rule xo) containing the oral testimony of witnesses, at the end of which appears the statement, “The foregoing is all of the testimony offered by either party, whereupon the court gave judgment for the plaintiff as appears of record in the cause; and thereupon the defendant filed a motion to set aside said judgment, and for a new trial, which said motion was as follows, to-wit.” The motion is then set out. Following which is the only certificate of the court or judge to he found in the record; and which reads: “And upon consideration the court overruled said motion for a new trial as appears of record in said cause; and the defendant thereupon excepted to the overruling of said motion, and presents this his bill of exceptions, first to