Iowa State Savings Bank v. Henry

Scott, Chief Justice.

This action was brought in the District Court of Uinta county by the plaintiff in error as plaintiff against Joseph Henry and others as defendants to recover as endorsee on two several promissory notes and interest thereon. The case was tried to a jury which found for and returned a verdict in favor of the defendants and the plaintiff brings the case here on error.

The answer consisted of an answer and counter-claim to which plaintiff filed a demurrer upon the grounds, first: “That the answer does not state facts sufficient to constitute a defense,” and second: “That the alleged counter-claim does not state facts sufficient to constitute a cause of action.” The court overruled this demurrer and such ruling is here assigned as error.

The petition contains two causes of action upon separate promissory notes, each dated April 18, 1908, signed, executed and delivered by the defendants to C. H. Hurd, where *192 by for value received they promised to pay $875.00 on or before April 18, 1909, and $875.00 on or before April 18, 1910, respectively, with interest at 8 per cent, per annum until paid, payable at the First National Bank of Evanston, Wyoming, and it is alleged for a valuable consideration before maturity both notes were endorsed to plaintiff. The answer alleged that the notes were executed and delivered in payment for a stallion sold to defendants upon false representations and guaranty that had failed as to* said stallion and denied that plaintiff was an innocent holder, but took the notes with knowledge of the transaction, fraud and false representation by which they were obtained. We think the answer stated facts sufficient to constitute a defense and that the demurrer was properly overruled.

A motion to strike out the answer and counter-claim was made which the court overruled. This ruling is assigned as error. It will be observed that this motion is not directed to different parts of the answer, but to the answer as a whole. We have already.held that the answer did state facts sufficient to constitute a defense and to strike out the answer in its entirety would manifestly be unjust. This motion was properly denied.

It is assigned as'error that the court erred in overruling the motion for a new trial. Omitting the caption and signatures the motion is in words and figures as follows: “Comes now the plaintiff in the above entitled action and moves the court to set aside the verdict of the jury, for the following reasons, do-w-it:

For the following irregularities:

1. — Insufficiency of the evidence to justify the verdict of the jury.

2. — That said verdict of the jury is contrary to law:

3. — Errors of law occurring at the trial and excepted to by the plaintiff:

4. — And for other manifest errors apparent upon the face of the record.”

The third and fourth grounds of this motion are each insufficiently stated and for that reason did not definitely *193 direct the court’s attention to the cause of complaint. (C. B. & Q. R. Co. v. Morris, 16 Wyo. 308 , 93 Pac. 664 ; Wilson v. O’Brien, 1 Wyo. 42 ; Boberg v. Prahl et al., 3 Wyo. 325 , 23 Pac. 70 ). It was said by this court in Dickerson v. State, 18 Wyo. 440 , in Pac. 863, 116 Pac. 451 , that “It has been uniformly held by this court that such -a specification is too general and indefinite to show that the question was brought directly to the attention of the court below.”

The first and second grounds of the motion, to-wit: that the evidence is insufficient to support the verdict and that the verdict is contrary to law, can only be considered upon all the evidence given upon the trial and which evidence should be incorporated in the bill of exceptions. (Section 4598, Comp. Stat. 1910). Such has been the uniform holding of this court. The certificate of the trial judge to the bill in this case recites that it “contains all of the material evidence offered, given and introduced in said cause,” and it does not appear anywhere in the bill by recital or otherwise that it contains all the evidence given upon the trial. It was incumbent upon the plaintiff in error to make an affirmative showing of prejudicial error in order to entitle it to a reversal of the judgment. The presumption of the regularity of the proceedings in the trial court is indulged until the contrary is shown. It is apparent that to entitle one to a review upon an assignment of insufficiency of the evidence to support the verdict it is essential that all the evidence be incorporated in the bill.' In the absence of a certificate of the trial judge so reciting or a recital in the bill to that effect there is no presumption that it does as against the presumption which obtains in favor of the regularity of the proceedings leading up to such judgment. The bill being incomplete in this respect the first and second assignments contained in the motion for a new trial cannot be here considered.

It is here urged that the court erred in refusing to give certain instructions requested by plaintiff and in giving certain instructions requested by the defendants. None of these *194 rulings was made a ground in the motion for a new trial and for that reason, under rule 13, cannot be considered. It follows that the judgment must be affirmed.

Affirmed.

Beard, J., concurs. Potter, J., being ill, did not sit.