Hannan Bros. v. Waltenspiel

82 P. 859, 29 Utah 466, 1905 Utah LEXIS 38

• Court: Utah Supreme Court
• Decided: November 14, 1905
• Docket: No. 1660
• Status: Published

Opinion

BARTCH, C. J.

This action was brought against the defendant to recover a balance alleged to be due plaintiffs for merchandise sold and delivered. The defendant in his answer, as a defense, set up a breach of" the contract under which the goods were to be shipped and delivered, and by way of counterclaim demanded judgment against the plaintiffs for damages. At the trial the court dismissed the action upon the merits, and entered judgment in favor of, the defendant for costs. Thereupon this appeal was prosecuted.

The standing of the appellants in this court has been challenged, by a motion to dismiss the appeal, on the ground that the rules and practice of this court have been violated. Upon careful examination, we are of the opinion that this motion is well founded. There is in the transcript no chronological arrangement of the proceedings and papers in the cause, as required by rule 2 (49 Pac. xi), nor is the transcript prefaced by an alphabetical index specifying where each particular paper and .the testimony of each witness may be found, as required by that rule. Many of the exhibits are not indexed at all and the pages of the transcript are not numbered properly. Nor does the abstract contain a brief statement, or any statement, of the contents of each paper of importance embodied in the transcript, as required by rule 6; and some of the papers, as they appear in the abstract, are so changed as to convey an erroneous impression. Nor is there any reference, in any one of the assignments of error, to the page of the abstract containing the exception upon which the 'error is based. These rules were adopted for the purpose of having cases presented to this court in a proper and intelligent manner, and must be obeyed.

We are also of the opinion that the motion to strike out the bill of exceptions is well taken, because the bill is not certified by the judge before whom the cause was tried, in the manner prescribed uy law. There is nothing in the bill showing that it represents all the proceedings had and contains all the evidence introduced at the trial, or in the cause, and yet the principal error assigned, and the only ones argued in the appellants’ brief, relaté to the insufficiency of the evi-deuce to support the findings of fact. Such a bill of exceptions is clearly contrary to law and can answer no useful purpose.

It may also be observed that there is a failure to comply with rule 10 (49 Pac. xii), in not plainly and distinctly stating, in appellants’ brief, each point relied upon for a reversal. Instead of a point, raised by an exception, being, clearly and concisely stated and then an argument based thereon, there appears, in the brief, but an argument on the general proposition of the insufficiency of the evidence in the case, based upon no specific point. Notwithstanding these several failures to comply with our appellate procedure, however, if we were to pass upon the merits of this case, as presented in the record, our judgment would be that the lower court committed no reversible error.

Por the reasons hereinbefore stated, the appeal must be dis: missed, and the judgment affirmed, with costs. It is so ordered.

McCARTY, J., concurs. STRAUP, J., concurs in the result, affirming the judgment.