Lead Opinion
This action was commenced by the respondent, a banking corporation, to recover the sum of $250 from defendants Will Caravelis, Nicholas P. Stathakos, and L. G. Skliris, as partners doing business under the name and style of Caravelis & Co. The amount claimed was alleged to be due upon advancements made by respondent in the form of an overdraft made by the defendants aforesaid, and which, it is alleged,
Counsel for respondent have filed two motions, (1) to dismiss the appeal, and (2) to strike the bill of exceptions. The motion to dismiss the appeal is based upon the ground that no notice of. appeal was served upon the defendants Caravelis and Stathakos. If this contention is correct, the appeal must be dismissed under the rule announced by this court in the case of Griffin v. S. P. Co., 31 Utah 296, 87 Pac. 1091, for the reason that all who are adversely interested in the judgment’ have not been made parties to the proceedings in this court.
By reference to the original notice of appeal served in this case as the same appears in the certified transcript, it is found that service of the notice was accepted on behalf of respondent by James Ingebretsen and Bussell Schulder as its attorneys, and that Bussell G-. Schulder accepted service for the defendants Will Caravelis and Nicholas Stathakos. It is claimed by Mr. Schulder that the acceptance of service by him for the two defendants was made under a special agreement with counsel for' Skliris, which was to the effect that the service was accepted by Schulder as an accommodation, to counsel for Skliris merely and without waiving any rights which the other two defendants might have with respect to the motion to dismiss the appeal upon the ground that they were not served with the notice of appeal. In this connection it is also strenuously insisted by both counsel for respondent that Mr. Schulder did not represent the other two defendants, but that he represented the respondent jointly with Mr. Ingebretsen, and that therefore no notice of appeal.
The motion to strike the bill of exceptions -must fail for-practically the same reasons for which the motion to dismiss1 the appeal failed. The contention that the bill of exceptions.
The assignment that the evidence does not support the finding of the court with respect to the amount of the overdraft is more serious, and, as it seems to us, should be sustained. The evidence, briefly stated, with regard to the amount of the overdraft, is as follows: Mr. Howard, the as
“The question as to whether or not account hooks or entries therein should be admitted in evidence is, in the first instance, a question to he decided by the court. Before the admission of this evidence, the court must be satisfied that the shop books offered in evidence are fairly kept, in good faith, as a contemporaneous record of daily transactions.”
The record in this case is not such that from it alone we are disposed at this time to review the ruling of the trial court with regard to the admission of the account in evidence. To do this is likewise unnecessary for the reason that, if we assume that the account was properly admitted, it still did not tend to prove the amount of the overdraft for the following reasons: The entries are made in so brief a manner that a stranger to the account or one not versed in that particular style or system of bookkeeping would not be able to say what many of the items of the account referred to signified. The account, as kept, showed only different columns of figures signifying dates and amounts. Now and then entries of figures are found which in another
26 0. D. 250 292.36
The first figures are entered in the date column, followed by the letters “0. D. ” The. figures “250” are in the column headed ‘ ‘ deposits,” and the remaining figures in the column headed “balances.” There are two other columns, headed “checks” and “totals.” It is claimed that “26” gives the day of the month, “0. D. ” means overdraft, and “250” stands for the amount of the overdraft. It may be so, but no one not versed in the method of keeping the account could say with any degree of positiveness that these symbols and figures mean precisely this, and nothing else. It is an easy matter for any one to explain the system or method of bookkeeping adopted and used by him so that all others may understand it as well as he. Where the entries are not stated in a form which is self-explanatory, they should be explained by proper evidence. This is just as essential as it is to identify the parties and to connect them with the account, or to make any other explanation so- as to make the account relevant and to bring it within the understanding of the court or jury. In view of the evidence, the account in this
This therefore brings us to the question: Is tbe amount of tbe overdraft established by other evidence? Respondent’s counsel contend tbat. it is so established by tbe admissions of appellant. Tbe alleged admission we have already referred to. It was made in a conversation bad between Mr. Howard and appellant in April, 1906, after which appellant made two payments, one of $60 and tbe other of $49.2.0. All tbat Mr. Howard claimed, however, was tbat appellant did not dispute the amount when he was told that it was $330.90, and not that the appellant directly admitted its correctness. The appellant, however, stated that he disclaimed any liability because he was not a partner of the firm of Caravelis & Co., and hence not connected with the account. If 'we should assume therefore that the mere fact that appellant did not dispute the amount of the overdraft at that time amounts to an admission on his part, which, to say the least, is very doubtful, it would still not be an admission of the amount as found by the court. Mr. Howard says the amount was $330.90, and that no additions were made thereafter, except interest, and possibly some items of cost; but what those were does not appear. The alleged admission was made in April, 1906, and this action was commenced in June of the same year. If the amount of the overdraft at that time was $330.90, and this amount is credited with the two payments amounting to $109.20, it would leave a balance due on the overdraft of only $221.10 in April, 1906, or about two months before this action was commenced. The finding and judgment is for $250, with interest thereon from the time the action was commenced. The finding therefore is not supported by the evidence.
If an overdraft may be established by such slender proof-in a case involving a matter of only $250, it may be when any amount is involved. The mere fact that accounts between a bank and its customers are usually kept with much
For the reasons therefore that the finding of the court with regard to the amount of the overdraft is not supported by any evidence, and that the evidence is, to say the least, very doubtful as to whether any amount has been proved, the judgment is reversed, and the cause remanded for a new trial; appellant to recover costs on appeal.
Rehearing
ON REHEARING.
In this case a petition for rehearing was filed, principally. on the ground that the appeal was not taken within time. The question presented being one challenging the authority of the court to consider the case on the merits, we, upon
The action was originally brought in the city court by the plaintiff, the respondent here, against the three defendants, Caravelis, Stathakos, and Skliris, as partners, under the firm name of Caravelis & Co. In proceedings there had Ur. James Ingebretsen represented the plaintiff, Mr. Bus-sell G. Schulder, the defendants Caravelis and Stathakos, and other counsel the defendant Skliris. Judgment was there had in favor of the plaintiff and against the three defendants. Skliris prosecuted an appeal to the distinct court. In proceedings there had Mr. Ingebretsen represented the plaintiff, Mr. Schulder, also the plaintiff and the two defendants represented by him in the city court, and Mr. Frank J. Gustin the defendant Skliris. A judgment was there also obtained in favor of the plaintiff and against the three defendants, which was entered on the 17th of June, 1907. From that judgment Skliris has prosecuted this appeal. On the 19th day of June, 1907, Skliris filed and served in the court b§low a notice of intention to move for a new trial. The motion was submitted on the 21st day of September, 1907, and was overruled on the 9th day of November, 1907. The notice of appeal was served and filed on the 2d day of March, ,1908. Our statute provides that an appeal may be taken within six months from the entry of judgment. Section 3301, Comp. Laws 1907. Our uniform holding has been that in case of filing and serving a proper notice of motion for a new trial within the time allowed by the statute, or enlarged by order of eourt, the judgment does not become final until the motion has been disposed of, and that an appeal may be taken from the judgment within six months after the disposition of such motion. If therefore the appellant filed and served a proper notice of motion for a new trial, his appeal is in ample time. The respondent contends that the appellant did not file or serve such a notice. The contention made in that regard is that the notice of motion -which was filed and'served by'him was addressed only “to the plaintiff, above named (Walker Bros., etc.), and
The difficulty, however, is that the instrument or document to which our attention has been directed by counsel, and from which it is contended by them that the facts in respect of the filing and service of the notice of the motion as claimed by them are made to appear, is not a part of the record and is not properly before us. The record on appeal consists of the judgment roll and the bill of exceptions as settled, signed, and certified to by the judge who tried the case. To properly inform us with respect to the proceedings had in a case before the trial court, it is essential that such information be conveyed to us, either by the judgment roll or by a bill of exceptions. Unless a document claimed to be of such proceedings is either a part of the judgment roll, or made a part of the bill of exceptions, it is not a part of the record on appeal, and cannot be considered by us. In this instance counsel point to a document which presumably was, •sent up from the county clerk’s office together with the record on appeal (the judgment roll and bill of exceptions), and which purports to be a notice of intention to move for a new trial, and is addressed and purports to be served, as con
IJpon further consideration of the case, we are well satisfied with the conclusion reached by us in the former opinion written by Mr. Justice Frick. The order, therefore, heretofore made by us, reversing the judgment and remanding the case for a new trial, is confirmed.