McCullough v. McCullough

Utah Supreme Court

McCullough v. McCullough

106 P. 665, 37 Utah 148, 1910 Utah LEXIS 36

CourtUtah Supreme Court

DecidedJanuary 10, 1910

DocketNo. 2056

StatusPublished

Cited by3 cases

This text of 106 P. 665 (McCullough v. McCullough) is published on Counsel Stack Legal Research, covering Utah Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

McCullough v. McCullough, 106 P. 665, 37 Utah 148, 1910 Utah LEXIS 36 (Utah 1910).

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Opinion

STRAUP, C. J.

In 1901, in an action wherein the appellant was plaintiff and Mary A. McCullough, defendant, a judgment of divorce was rendered on her counterclaim, in favor of the defendant, and certain real estate awarded to her. In 1902, and in that action, the appellant, by motion and on notice, asked that the decree in respect to the property awarded to defendant be modified. Upon a hearing had the motion was denied. Again, in 1905, the appellant made a similar motion, which [149]*149on a bearing was also denied. In December, 1908, tbe defendant died. In January, 1909, tbe appellant moved tbe court to substitute tbe administrator of ber estate in tbe action, and again moved tbe court to modify tbe decree so as to award tbe property to tbe appellant. Tbe order of substitution was made, but, on tbe appearance of tbe administrator, and on a bearing, tbe order was, in April, 1909, vacated, and tbe motion to modify tbe decree denied. These various motions were supported and resisted by affidavits. Tbis appeal is taken from tbe order made, or judgment rendered, by tbe court in April, 1909, seeking to bave reviewed tbe proceedings bad with respect to tbem.

Tbe respondent bas challenged our power to review tbem because they are not preserved nor authenticated by a bill of exceptions. Tbe appellant concedes that there is no bill of exceptions, but insists that tbe motions, petitions, and affidavits, and tbe proceedings bad thereon, and tbe rulings and orders made in respect thereof, are a part of 1 the jtidgment roll, and reviewable without a bill of exceptions. We think otherwise. To properly review such rulings and proceedings, it was essential to preserve tbem by, and to present tbem on, a bill of exceptions. Without it we cannot judicially know what they were.

There not being anything before us which is reviewable, it follows that tbe judgment of tbe court below must be affirmed, with costs. Such is tbe order.

ERICK and McOARTY, JJ., concur.

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STRAUP, C. J.

In 1901, in an action wherein the appellant was plaintiff and Mary A. McCullough, defendant, a judgment of divorce was rendered on her counterclaim, in favor of the defendant, and certain real estate awarded to her. In 1902, and in that action, the appellant, by motion and on notice, asked that the decree in respect to the property awarded to defendant be modified. Upon a hearing had the motion was denied. Again, in 1905, the appellant made a similar motion, which [149]*149on a bearing was also denied. In December, 1908, tbe defendant died. In January, 1909, tbe appellant moved tbe court to substitute tbe administrator of ber estate in tbe action, and again moved tbe court to modify tbe decree so as to award tbe property to tbe appellant. Tbe order of substitution was made, but, on tbe appearance of tbe administrator, and on a bearing, tbe order was, in April, 1909, vacated, and tbe motion to modify tbe decree denied. These various motions were supported and resisted by affidavits. Tbis appeal is taken from tbe order made, or judgment rendered, by tbe court in April, 1909, seeking to bave reviewed tbe proceedings bad with respect to tbem.

Tbe respondent bas challenged our power to review tbem because they are not preserved nor authenticated by a bill of exceptions. Tbe appellant concedes that there is no bill of exceptions, but insists that tbe motions, petitions, and affidavits, and tbe proceedings bad thereon, and tbe rulings and orders made in respect thereof, are a part of 1 the jtidgment roll, and reviewable without a bill of exceptions. We think otherwise. To properly review such rulings and proceedings, it was essential to preserve tbem by, and to present tbem on, a bill of exceptions. Without it we cannot judicially know what they were.

There not being anything before us which is reviewable, it follows that tbe judgment of tbe court below must be affirmed, with costs. Such is tbe order.

ERICK and McOARTY, JJ., concur.

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Bluebook (online)

106 P. 665, 37 Utah 148, 1910 Utah LEXIS 36, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mccullough-v-mccullough-utah-1910.

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