Opinion
No. 6944.
Decided October 17, 1946.
1. EXCEPTIONS, BILL OF. Assignments of error misentitled "Bill of Exceptions" would not be considered, where so-called bill had never been settled, trial judge did not sign certificate stating that exceptions had been allowed and settled, and such papers were not filed with clerk of court, and assignments required an examination of evidence, which could not be considered for failure to comply with statute relating to preparation and service of bill of exceptions. Utah Code 1943, 104-39-4. 2. APPEAL AND ERROR. On appeal from judgment roll without bill of exceptions, Supreme Court would assume that the evidence sustained the findings of fact, and the only question presented for review was whether the pleadings were sufficient to sustain findings of fact and judgment. Utah Code 1943, 104-39-4. 3. APPEAL AND ERROR. Exhibits and files attached to and filed in Supreme Court with judgment roll, but not made a part of the judgment roll as provided by statute, would not be considered. Utah Code 1943, 104-30-14. 4. APPEAL AND ERROR. Where assignments of error were insufficient and no question was raised that the judgment was not supported by the findings of fact and conclusions of law, there was nothing before Supreme Court for review.
Metz v. Jackson, 43 Utah 496, 136 P. 784; Coates v. Allen, 88 Utah 545, 56 P.2d 612.
Bachman v. Smith Thompson, 1 Utah 237; O'Gorman v. Utah Realty Construction Co., 102 Utah 523, 129 P.2d 981.
Tooele Improvement Co. v. Hoffman, 44 Utah 532, 141 P. 744; Larsen v. Madsen, 87 Utah 48, 48 P. 429; Coates v. Allen, 88 Utah 545, 56 P.2d 612.
See 4 C.J.S., Appeal and Error, sec. 845; 3 Am. Jur., 244.
Appeal from District Court Third District, Salt Lake County; Ray Van Cott, Jr., Judge.
Action by William Atkinson, Jr., against George Pellegrino and Mrs. George Pellegrino, husband and wife. From the judgment, the plaintiff appeals.
Affirmed.
C.E. Norton, of Salt Lake City, for appellant.
H.G. Metos, of Salt Lake City, for respondent.
This appeal is on the judgment roll without a bill of exceptions. We have before us the pleadings, the findings of fact, the conclusions of law and the judgment. Annexed by counsel at the end of the judgment roll is a number of asserted irregularities and errors that are urged upon the 1, 2 attention of the court by counsel for the appellant; but we cannot consider them. Counsel has entitled them "Bill of Exceptions" when in fact they are assignments of error. The so-called Bill of Exceptions has never been settled; there is no certificate signed by the trial judge stating that the exceptions have been allowed and settled; these papers have not been filed with the clerk of the court. The misentitled assignments of error pose questions involving evidence which we cannot consider because Section 104-39-4, U.C.A. 1943 has not been complied with, and because a consideration of them requires an examination of the evidence. There being no Bill of Exceptions, we must assume the evidence sustained the findings of fact. The only question presented for our determination is whether the pleadings are sufficient to sustain the findings of fact and the judgment. Metz v. Jackson, 43 Utah 496, 136 P. 784; Coates v. Allen, 88 Utah 545, 56 P.2d 612. We find that they are.
A mass of exhibits and files of the case in the court below have been attached to and filed in this court with the judgment roll, but they do not by that means become a part of the record. What constitutes the judgment roll is specifically set forth in Section 104-30-14, U.C.A. 1943 and whatever 3 additional the appellant desires to bring into the record on appeal, must be made a part of the judgment roll as provided by this statute. See Bachman v. Smith Thompson, 1 Utah 237. Also, O'Gorman v. Utah Realty Construction Co., 102 Utah 523, 129 P.2d 981. We can consider nothing but the judgment roll. In that we find no error.
No question is raised that the judgment is not supported by the findings of fact and conclusions of law. In this regard, there is nothing here to review. Tooele 4 Improvement Co. v. Hoffman, 44 Utah 532, 141 P. 744; Larsen V. Madsen, 87 Utah 48, 48 P.2d 429; Coates v. Allen, supra.
Judgment is affirmed. Respondents to recover costs.
McDONOUGH, PRATT, and WADE, JJ., concur.
I concur. To supplement the statement in the first paragraph of the opinion that there is no Bill of Exceptions I think it helpful to add the following. The document entitled "Bill of Exceptions" annexed at the end of the judgment roll in addition to containing a number of the alleged irregularities and errors urged upon the court by counsel for the appellant also included a list of the exhibits which were introduced at the trial. On the last page of the document is a stipulation by both counsel that the
"foregoing Bill of Exceptions is hereby settled and that all of said Exhibits above listed be, and are, made a part hereof by said references and annexing the same hereto, and that the whole thereof constitutes this Bill of Exceptions for all of the purposes of this appeal."
Section 104-39-4, U.C.A. 1943, provides the procedure for the preparing and settling a Bill of Exceptions. That procedure must be followed. A stipulation by counsel that a particular document is a "Bill of Exceptions" does not make it so.