Bumpas v. Moore

MORGAN, J. This record on appeal purports to contain a transcript of the evidence taken at the trial, which does not appear to have been settled or certified by the trial judge, as required by sec. 4443, Rev. Codes, as amended by sec. 4, chap. 118, Sess. Laws 1911, p. 378, and sec. 4434, Rev. Codes, [670] as amended by chap. 119, Sess. Laws 1911, p. 379, therefore, the order overruling the motion for a new trial, which was based, in part, upon the minutes of the court, cannot be reviewed. This leaves nothing , for us to consider, except the judgment-roll on appeal from the judgment. (Ray v. Ray, 1 Ida. 705; Grisinger v. Hubbard, 21 Ida. 469, Ann. Cas. 1913E, 87, 122 Pac. 853; Strand v. Crooked River Min. Co., 23 Ida. 577, 131 Pac. 5; Wells v. Culp, 30 Ida. 438, 166 Pac. 218.) The record purports to contain a copy of a motion for, and of objections to, a continuance of the trial, together with copies of certain affidavits in support thereof and in opposition thereto, and of the minutes of the court showing the motion was granted. This is a nonappealable order and is assigned as error. The matter, however, is not before this court. The papers mentioned are not part of the judgment-roll (Rev. Codes, sec. 4456, as amended by Sess. ,Laws 1909, p. 76); neither are they part of the papers required to be furnished on appeal (Rev. Codes, sec. 4818, as , amended by Sess. Laws 1911, chap. 117, p. 375) ; nor have they been incorporated in a bill of exceptions, nor in a properly settled and certified record on appeal from an order denying the motion for a new trial as required by sees. 4443 and 4434, supra. (Ray v. Ray, supra; Ramsay v. Hart, 1 Ida. 423; Williams v. Boise Basin Min. Co., 11 Ida. 233, 81 Pac. 646; Perkins v. Loux (on rehearing), 14 Ida. 614, 95 Pac. 696; Bissing v. Bissing, 19 Ida. 777, 115 Pac. 827.) There is no certificate in the transcript showing what papers, records or files were used and considered by the court on the hearing of either the motion for a continuance or for a new trial as required by sec. 4821, Rev. Codes and by Rule 24 of the rules of this court. (153 Pac. xi.) In the absence of such a certificate the orders complained of could not be reviewed, even if the other reason, above stated, did not exist. (Dudacek v. Vaught, 28 Ida. 442, 154 Pac. 995; Walsh v. Niess, 30 Ida. 325, 164 Pac. 528; Glenn v. Aultnum & Taylor M. Co., 30 Ida. 719, 727, 167 Pac. 1163.) (October 5, 1918.) Witnesses — Impeaching Questions. 4. Although an impeaching question propounded to a witness is improper, because the statements inquired about are in writing and have not been shown to him as required by statute, if his answer thereto is not contradicted, but the effort to impeach him is abandoned, no prejudicial error results from overruling an objection to the question. [As to impeaching witnesses, see note in 14 Am. St. 157.] We find no error in the judgment-roll which is the only portion of the record properly before us. The judgment and order appealed from are affirmed. Costs are awarded to respondent. Budge, C. J., and Rice, J., concur.