McCarty v. Warnkin

207 P. 1075, 35 Idaho 614, 1922 Ida. LEXIS 85

Opinion

RICE, C. J.

The appeal in this ease is from a judgment and from an order denying appellants’ motion for a new trial.

The record contains what purports to be a reporter’s transcript of the evidence and proceedings at the trial, which is not settled by the trial court. It cannot be considered on appeal. (Wells v. Culp, 30 Ida. 438, 166 Pac. 218; Minneapolis Threshing Machine Co. v. Peterson, 31 Ida. 745, 176 Pac. 99; Ellsworth v. Hill, 34 Ida. 359, 200 Pac. 1067.)

The transcript does not contain a certificate as to the papers used upon the hearing of the motion for a new trial. The action of the court in denying the motion is therefore not subject to review. (Biwer v. Van Dorn, 32 Ida. 213, 179 Pac. 953; Spencer v. John, 33 Ida. 717, 197 Pac. 827.)

This leaves the judgment-roll alone for consideration. No error appearing on the face thereof, as supplemented by permission of the court granted at the hearing, the judgment is affirmed. Costs to respondent.

Budge, McCarthy, Dunn and Lee, JJ., concur.