Hungarian Hill Gravel Mining Co. v. Moses

Myrick, J.: 1. This case comes to us on appeal from the judgment rendered in favor of defendants against the plaintiff. A bill of exceptions appears in the transcript. The case was tried by the Court, and the findings were filed and judgment entered August 17th, 1880; the plaintiff served and filed a notice of appeal August 25th, 1880, and filed an undertaking on appeal August 27th, 1880. No order was made extending the time for preparing a draft of bill of exceptions. On the 14th of September, 1880, plaintiff’s proposed bill of exceptions was served on defendant’s attorney; November 10th, 1880, defendant’s attorney admitted service of an amended bill of exceptions; November 12th, 1880, the Judge, settled [175] and certified the bill, and on the loth of December the cleric certified the transcript. When the proposed bill and the amended bill were served, no objection was made that they were not, respectively, in time. Objection is made by the respondents, that the bill was not in time, and should be disregarded, and the case considered only on the judgment roll. 2. The bill of exceptions is a statement of the evidence in the case, and contains but one note of exception, and that is to the admitting in evidence of a certificate of sale and the Sheriff’s deed. No error appears in the ruling of the Court admitting them in evidence. At the foot of the bill of exceptions are eighteen assignments of error, all relating to the findings—some specifying certain findings as not supported by the evidence, others specifying findings as contrary to the evidence, others stating that the findings embrace matters not in issue, and others that some of the issues are not covered by the findings. Objection is made, that all the matters above referred to, except the exception noted, are matters to be considered only • on motion for new trial, and appeal from the ruling thereon, and should be thus brought here by statement, and not by bill of exceptions; that insufficiency of the evidence to sustain the decision, and other defects in the findings, not especially excepted to at the time, can not be the subject of a bill of exceptions, under §§ 646 and 657, Code of Civil Procedure. 8. We have examined the case as presented by the pleadings and findings and by the bill of exceptions, and see no error other than that hereinafter noted. The evidence is consistent with the theory that plaintiff, in constructing the Gurnee Mill Creek Ditch and the reservoirs connected therewith, and in using the same for conveying water, did not acquire any water rights other than those embraced in the mortgage, by the foreclosure of which the defendants acquired their title; that the construction of said ditch was for the purpose of employing to better advantage the use of the water rights covered by the mortgage; and the findings are based upon that theory. Either that theory is correct, or the transaction was an attempt to divert the waters from the ditch covered by the mortgage and leave the ditch without [176] water or a water right. We think the more innocent intention was the controlling motive, especially as the deed under which plaintiff claims any title contains the statement that the “property is conveyed subject to a certain mortgage thereon,” describing the mortgage referred to, and “ that the party of the second part (plaintiff here) is to fully pay and discharge the balance remaining due on said mortgage, and hold the parties of the first part (including, with others, the mortgagor) and each of them entirely free and harmless on account thereof.” The error to which we refer appears from the pleadings and judgment, and is this: The action is brought to quiet .title, and the complaint contains various allegations relating to the title and the claims of title of the parties, and prays that defendants may be enjoined from asserting any claim or right to the property claimed by plaintiff. The answer contains specific denials of plaintiff’s allegations of title, and alleges that defendants are the • owners of the property in dispute; and prays that plaintiff take nothing by its action herein, and that defendants go hence unharmed, with their costs. The Court, after judgment that plaintiff was not the owner of the property, and that defendants were the owners, decreed that the plaintiff’s claims to the property were groundless, and that the defendants were the true and lawful owners of the water ditches, reservoirs, and water rights described in the complaint, “and that said defendants’ title thereto is adjudged to be quieted against all claims, demands, and pretensions of the said Hungarian Hill Gravel Mining Company, a corporation, plaintiff, which said corporation, plaintiff, is hereby estopped perpetually from setting up any claims thereto, or any part thereof.” The answer of the defendants contained none of the elements of a cross-complaint, as distinguished from a defense to plaintiff’s action, and contained no prayer for affirmative relief. That part of the decree awarding affirmative relief should be stricken out. It is not necessary for us, therefore, to pass upon the first and second points above suggested, because, even granting that the bill of exceptions is properly here, and is as efficacious in presenting the case as would have been a formal [177] statement on motion for new trial, the appellant would not be entitled to the relief sought by its appeal. The cause is remanded to the Court below, with instructions to strike out of the decree the affirmative relief, being the clause above marked with quotations, and in all other respects the judgment is affirmed. Sharpstein, J., Thornton, J., and Morrison, C. J., concurred.