Kerr v. Clampitt

ERROR to the Supreme Court of the Territory of Utah.

The record in this case shows that several issues of fact regularly made up were tried by a jury in the third judicial district court of the Territory of Utah, that a verdict was returned in favor of the defendants in error for $3,583, and a judgment rendered thereon, Nov. 11, 1874; but it does not show that any exceptions were taken to the rulings of the court, either admitting or rejecting evidence, or to instructions given or to those refused, nor does it contain any thing purporting to be a bill of exceptions.

It shows, however, that a motion for a new trial was made on that day, and that a 'statement or motion for a new trial' was also filed on the 20th of March, 1875. At the foot of the statement is the following agreement, signed by attorneys for both parties: 'It is hereby agreed that the foregoing shall constitute the statement on motion for a new trial in the above-entitled cause, and is correct.' Indorsed on the statement is the following: 'Settled statement on new trial, filed March 20, 1875.'

This statement purports to give certain rulings of the court upon the admission and rejection of evidence and upon instructions to the jury given and refused, and exceptions which, it is said, were taken; but, by express agreement of the parties by their attorneys, the use of the statement is limited to the hearing of the motion for a new trial.

The record also shows that defendants below gave notice of an appeal to the Supreme Court of the Territory from the judgment entered on the verdict, as well as from that of the 1st of May, 1875, overruling the motion for new trial; and the bond recites an appeal from both judgments.

Mr. Samuel Shellabarger and Mr. Jeremiah M. Wilson for the plaintiff in error.

Mr. S. S. Henkle, contra.

MR. JUSTICE FIELD delivered the opinion of the court.