Thompson v. Hays

67 P. 670, 24 Utah 275, 1902 Utah LEXIS 5

• Court: Utah Supreme Court
• Decided: February 6, 1902
• Docket: No. 1263
• Status: Published

Opinion

ROLAPP, District Judge.

This is an appeal had from a judgment against the defendant, Hays. The record in this case is fatally defective for the purpose of examining most of the assignments of error, it only showing that “the defendant’s motion to set aside the judgment be, and the same is hereby, overruled, and a new trial denied in this premises;” and that defendant moved for “a rehearing of an order denying the defendant’s motion for a new trial,” upon which latter motion apparently no action was ever taken; but it wholly fails to set forth any motion for a new trial, or any intention to make such motion; nor does it state or designate any grounds upon which such motion would be or was made. Consequently, the grounds for the motion for a new trial not being in the record, we can not surmise what they were. We can 1 not assume that the errors now complained of as having occurred upon the trial were the grounds relied upon for a new trial. All presumptions are in favor of the judgment of the lower court. McKay v. Farr, 15 Utah 261, 49 Pac. 649. So far, then, as this record is concerned, there has been no motion for a new trial interposed or ruled upon, and we therefore can not consider the testimony, and have no 2 means of determining whether any errors occurred upon the trial, or whether the findings of fact are supported by the proof. Swenson v. Snell, 22 Utah 191, 61 Pac. 555; Cole v. Bower (Kan.), 36 Pac. 1000; Gum v. Murray (Mont.), 9 Pac. 447; Maricopa Co. v. Osborn (Ariz.), 40 Pac. 313; Morse v. Brunswick (Kan.), 8 Pac. 398.)

When the objection is that the evidence does not support the 'findings, or that the findings are not in accordance with the evidence, it must be brought into the record on a motion for a new trial. Kahn v. Smelting Co., 2 Utah 371. Hence, in this case, the only thing before us is the judgment roll; and here again we are confronted with the question as to whether the appellant has in fact made any assignments of error relating to the findings of fact and conclusions of law. Each intended assignment simply states that the defendant excepts to the finding of fact or conclusion -of law, as the case may be, without stating that such finding or Conclusion was erroneous. The defendant’s exceptions are by no means 3 assignments of error; but, even accepting them as such, the only assignment of error relied upon by defendant, and which is not dependent upon an examination of the evi-dece for determination, is the exception taken to that part of the fourth conclusion of law which reads as follows: “And, having filed no supplemental complaint for damages, is relegated to a separate action for damages since the filing 4 of said complaint.” While this statement might well have been omitted, it is at most only surplusage, and does not constitute any reversible error.

Judgment affirmed, with costs.

BASKIN and BARTCH, JJ., concur.