Gifford v. Cole

Seevers, J. The petition was filed on the first day of March 3880. By leave of the court it was verified on the 8th day of April thereafter, and on the 17th day of said month, a verified answer was filed and therein payment was pleaded. The cause was on the docket at the September term, 1880, and it appears from the court record, it came on for trial on the 14th day of September, being the second day of the term, and the defendant failing to appear a jury was waived by both parties, and a trial was had to the court and judgment rendered for the nlaintiff. Afterward the defendant moved the court to set aside the judgment and for a new trial, which was overruled. It is assigned as error. l. rill oí exceptions: bar docket. I. “The court erred in taking the case up out of its order on the docket, and without notice to the defendant affording an opportunity to be heard.” To show the truth . . .. . . , , ol this assignment the appellant has caused to be [273] certified by the clerk as a part of the record, a docket “printed in small pamphlet form for distribution among the members of the bar.” Counsel for the appellee insist suGh docket is not a part of the records of the court, and therefore cannot be certified to this court by the clerk or become a part of the record on appeal, unless it has been made so by a bill of exceptions duly signed by the judge, and this we think must be so. The appellant relies on Sec. 197, subdivision 7, and Sec. 2747 of the Code. The book contemplated in the foregoing is the “appearance docket,” which is materially different from what is called the bar doeket. The former is by statute made a part of the records of the court. Not so with the bar doeket. It is not known to or recognized by-statute. It is not a part of the court records and can only beeome such or be made available on appeal when duly incorporated in, or sufficiently identified by a bill of exceptions. This not having been done we are unable to say this cause was taken up out of its order and tided in the court below. 2. jury : waiver oí. II. It is next assigned as error: “The court erred in trying the cause out of its order on the docket and under such circumstances as show that a jury was not legally waived by the defendant.” What has been said disposes of this assignment except as to the waiver of a jury. It is provided by statute,: “Trial by jury may be waived the several parties to an issue of fact in the following causes * * by failing to appear at the trial.” Code, § 2814. The record shows the defendant did fail to appear, and he thereby, we think, waived a jury. 3._. new toa1' III. It is lastly assigned as error: “The court erred in overruling the defendant’s motion to set aside the default and grant a new trial.” The judgment was not rendered by default, that is because of a failure to plead, and the real ground, as we understand, upon which this assignment is based, is that the defendant supposed he was represented by counsel and unexpectedly to him said counsel [274] withdrew from the case. Affidavits have been filed in support of and against the motion. From a consideration of which we conclude Mr. L. M. Fisher was not counsel for the defendant in this case. He was not employed or even requested by defendant to appear for him on the trial of this action. None of the pleadings were signed by Mr, Fisher. The defendant was not therefore entitled to a new trial on this ground. Affirmed.