Cornelius v. Mohave Oil Co.

CHERRY, J. From a judgment by default against them, in favor of tbe plaintiff, tbe defendants appeal upon tbe judgment roll, wbicb contains no bill of exceptions. Tbe only substantial objection urged is tbat tbe trial court erred in denying tbe defendants’ motion to set aside tbe default and judgment upon tbe grounds of inadvertence and excusable neglect. Tbe record brought up contains tbe appropriate documents constituting tbe judgment roll, and, in addition, tbe motion to set aside tbe default and judgment and tbe affidavit filed in support of tbe motion and a copy of the order denying tbe motion, aE certified by tbe clerk as being “tbe judgment roll, and tbe full and complete files in tbe case.” It is suggested by respondent’s counsel, and not denied, that oral evidence was heard and considered by tbe court upon tbe bearing of tbe motion. Respondent has printed and filed what is caEed a supplemental abstract containing purported evidence introduced at tbe bearing. This matter does not otherwise appear of record and tbe manner of presenting it here is wholly gratuitous and unauthorized. It is not claimed tbat any bill of exceptions was ever filed. Tbe state of tbe record is such tbat tbe order of tbe trial court denying tbe motion to set aside tbe default and judgment cannot be reviewed on this appeal. The question involves an examination of tbe evidence before tbe trial court and upon wbicb it acted, and this has not been preserved and brought here in any authentic or authorized maimer. Comp. Laws Utah 1917, § 6867, wbicb prescribes what shall constitute tbe judgment roH, does not include a motion to set aside a default, tbe affidavits in support thereof, or tbe ruHngs or orders of tbe court in respect thereto. In McCullough v. McCullough, 37 Utah, 148, 106 P. 665, *24 this court held: “A motion to modify a judgment, the affidavits in support thereof, and the rulings and orders of the court made in respect thereto, are not a part of the judgment roll, and cannot he reviewed on appeal, unless preserved by and presented on a bill of exceptions.” In 4 C. J. 168, the rule is stated as follows: “Motions to set aside a default, and affidavits in support of such motions are not part of the record proper, and must be brought into the record by a bill of exceptions or in some other method recognized by- law. If the affidavits are incorporated only in the transcript, on appeal, they cannot be considered.” The ruling of the trial court upon the motion to set aside the default involved the exercise of judicial discretion. And whether or not the discretion was properly exercised cised depends upon the evidence presented to the court and upon which it acted. In the absence of a properly authenticated record of all of the evidence presented to and considered by the court, the decision cannot be reviewed. The judgment appealed from is affirmed, with costs to respondent, provided that respondent shall not be entitled to any costs for the printing of his “supplemental mental abstract,” because the matter contained therein was wholly outside the record. GIDEON, C. J., and THURMAN, FRICK, and STRAUP, JJ., concur.