Steffy v. Esler

HUSTON, J.

— This is an appeal from a judgment rendered by the district court for the county of Kootenai. Notice of intention to move for a new trial was filed and served, but no motion for a new trial was ever made or passed upon by the court. The record contains what purports to be a statement on motion for a new trial, but, as no motion for a new trial was ever made or passed upon by the court, such statement cannot be used on this appeal. Section 4818 of the Revised Statutes of Idaho provides: "Any statement used on motion for a new trial or settled after decision of such motion, when the motion is made upon the minutes of the court, as provided in section 4443, or any bill of exceptions settled, as provided in sections 4429 or *230 4430, or used on motion for a new trial, may be used on appeal from a final judgment equally as npon appeal from the order granting or refusing the new trial.” The language of the statute is plain, and its purpose obvious. To have permitted the use, on appeal, of a statement of facts, which had never been examined or passed upon by the trial court, would be contrary to the recognized principles which regulate and control appellate proceedings, as well as a palpable injustice to the trial court. (Brind v. Gregory, 130 Cal. 640 , 53 Pac. 25 .)

The elimination of the statement from the record leaves only the judgment-roll to be considered by this court. Appellant; objects that the complaint does not state a cause of action. The complaint states that the deed, for the cancellation of which this action is brought, was executed and delivered by plaintiff to defendant “udou the express agreement and understanding that the title to said undivided interest in said mining claims, as hereinbefore set forth, should not vest in the defendant, but should remain in the plaintiff until the full performance by the defendant of said condition precedent, to wit, the payment by the defendant of the said sum of $386.25, with the accrued interest thereon, so due from plaintiff on his note and mortgage to A. Lund, as aforesaid, and the release of the plaintiff from said indebtedness, and the payment by defendant of the said sum of about $825, so due and owing from plaintiff and defendant to different individuals, as hereinbefore set forth, and the release of plaintiff from said indebtedness”; and this is, in substance, repeated in the complaint, and is followed by the averment that the defendant had failed and refused to comply with or perform any or either of said conditions precedent to the passing of any title by, or establishing the validity of, said deed; that plaintiff had demanded of defendant a performance of the said conditions precedent by him, and, upon refusal, had demanded a reconveyance of the property by defendant, which was also refused — all of which facts alleged in the complaint are by the trial court found to be true.

Counsel for appellant does not, we think, state the whole case made by the plaintiff when he says: “Plaintiff made the deed for the consideration that Esler [the defendant] should pay *231 debts that be was already bound for.” The plaintiff was personally liable for all the indebtedness mentioned, and, as alleged in the complaint and found by the court, was to be released from such indebtedness by its payment by the defendant, and it was in consideration of such payment and release that he consented to part with his property. “As no particular form of delivery is required, the question whether there was a delivery of a deed or not, so as to pass title, must, in great measure, where it is not clear that an actual delivery has been effected, depend upon the particular circumstances of each particular case.” (1 Devlin on Deeds, sec. 262.) The trial court finds in this case “that the quitclaim deed so given by the plaintiff to the defendant on the eleventh day of August, 1897, was never an executed contract, and that the plaintiff is to have the said deed surrendered and canceled,” etc. Upon the record presented to us we find no error in the judgment and conclusions of the district court. The judgment of the district court is affirmed, with costs to the respondent.

Sullivan, C. J., and Quarles, J., concur.