Marks v. Newmark

SLOAN, J. This is an action to enjoin the sale of certain real estate situated in the city of Phoenix, under an execution issued upon a judgment recovered by appellants herein against Simon Marks, the husband of appellee. The property in question was conveyed by Guss Ellis & Co., in 1886, to the appellee, Sarah Marks, for a money consideration expressed in the deed. At the time of the conveyance appellee’s husband, Simon Marks, the defendant in the execution proceeding, was engaged in the mercantile business in said city of Phoenix. Subsequently he failed, and on the-twenty-fourth day of May, 1887, appellants obtained judgment against him, upon which execution was duly issued and placed in the hands of the sheriff, and by him levied upon said real estate. Whereupon plaintiff brought this suit, claiming said property to be her separate estate, and not subject to the debts of her husband, and asking for a perpetual injunction staying the sale under execution. The court below found for the plaintiff, and granted a perpetual injunction restraining the appellants from in any manner proceeding against said real estate in satisfaction of said judgment against her said husband, Simon Marks. Appellants moved for a new trial, which was denied, and from this ruling this appeal is brought. The first two assignments of error relied upon by appellants, as grounds for a reversal of the judgment of the court below are as follows: 1. “That the court erred in admitting irrelevant, incompetent, and hearsay evidence on the part of the plaintiff, as disclosed by the statement of facts;” and 2. “That the court erred in excluding as evidence the proceedings supplementary to execution in the ease of New-mark v. Marks, including report of referee, and the order of court affirming same, offered by the defendants.” The first assignment invites us to a search through the record for the purpose of discovering errors committed by the court in its rulings upon the introduction of evidence in the trial of the case below, and particularly that part of the record which is contained in the statement of facts. While we might possibly have been disposed to perform this labor for counsel, we cannot in this instance examine the statement of facts for any such purpose, inasmuch as it lacks the character of a [226] bill of exceptions. in one essential particular, viz., in that it was not presented to the trial judge for his allowance within the time prescribed by statute for bills of exception. Putnam v. Putnam, ante, p. 182, 24 Pac. 321. Nor can we consider the second assignment, inasmuch as no bill of exceptions was preserved to the ruling of the court complained of. .The third assignment is altogether too general in its character for consideration. Appellants should have specifically pointed out wherein “the court erred in giving judgment for the plaintiff instead of the defendants.” Nor does the fourth and last assignment, which reads as follows: “The court erred in not granting defendants a new trial on grounds set forth in their motion for the same,”— meet the requirement of a proper assignment of error, inasmuch as it simply refers us to the ruling of the court upon the motion for a new trial, and an inspection of the motion shows that, in addition to the errors complained of in the other assignments, it is therein alleged that the court erred “because the judgment is contrary to the law and against the weight of evidence.” It is not stated wherein the judgment is contrary to law. We find, however, from an inspection of the record that the judgment follows the pleadings, and that is as far as we may examine the record under this specification. As to the weight of the evidence, that was a matter for the trial court to determine. In his judgment the evidence was sufficient to establish the claim of the respondent that the property in controversy was her separate property, and we see nothing in the statement of facts showing fundamental error in this finding of the court, as there is evidence to support it. The judgment is affirmed. G-ooding, C. J., and Kibbey, J., concur.