Summary
In George Bolln Co. v. Freeman, 42 Wyo. 375, 294 P. 1110, also relied upon by the respondent, the court said that where all of the errors charged involved questions arising solely upon the evidence, such errors could not be considered inasmuch as the clerk of court's certificate had not made the transcript of evidence a part of the record on appeal. There was no motion to dismiss and there was no effort made to have the missing certificate supplied nor was it supplied.
Summary of this case from Rafferty v. North. UtilitiesOpinion
No. 1644
January 14, 1931
APPEAL from District Court, Converse County; CYRUS O. BROWN, Judge.
For defendant and appellant there was a brief by Joseph Garst, of Douglas, Wyoming, and A.E. Stirrett, of Casper, Wyoming.
The finding of the jury was contrary to evidence. Granting all of plaintiffs evidence to be true, the agreement was for groceries and not for clothing, and a large part of the clothing was sold to other persons besides Hays, with no showing that Hays had any connection with the case. The groceries sold were for the ranch, whereas the evidence shows some portions thereof, were sold to Mrs. Hays while she was in town. The jury included items excluded by the court. The court erred in refusing to give instruction "B", and thereby deprived the jury of information as to the statute of frauds, and as to whether the alleged agreement amounted to an original or collateral promise. McGowan Com. Co. v. Midland Coal and Lbr. Co., (Mont.) 108 P. 655; Breidenbach v. Co., (Mont.) 187 P. 1008. The contract testified to by Froggatt was not an original promise, but a collateral promise, coming within the statute of frauds, so under the evidence, defendant could not be lawfully held as an original contractor, he being, at most a guarantor. Harris v. Frank, (Calif.) 22 P. 856. The evidence to prove a promise to pay the debt of another, as an original undertaking, and not a contract of suretyship, must be clear and satisfactory. 27 C.J. 387.
For the plaintiff and respondent, there was a brief by Theo. C. Daniels and John D. Dawson, both of Douglas, Wyoming.
This appeal should be dismissed for the reason that the record does not contain certified copies of the journal entries, of the judgment, or that any judgment was ever entered in the case. Sec. 6405 C.S.; McClintock v. Ayres, 34 Wyo. 430; Bader v. Mills Baker Co., 28 Wyo. 196; Faulkner v. Faulkner, 27 Wyo. 62; Goodrich v. Bank, 26 Wyo. 44; Kendrick v. Healey, 26 Wyo. 261; Hahn v. Citizens State Bank, 35 Wyo. 467. No application was made, or order granted, extending time to file the record on appeal. There is a marked distinction between a reporter's transcript and a record on appeal. Kendrick v. Healey, supra. No objections were made to the introduction in evidence of the slips for clothing, and the point relating thereto, cannot be considered on appeal. 3 C.J. 746; Hibbard v. Equitable Ins. Soc., 81 W. Va. 663; 1 Wigmore Ev. 187; State v. Hood, 15 L.R.A. (N.S.) 448. The term "groceries" may include all merchandise sold in general stores. 28 C.J. 627; Ins. Co. v. Francis, 52 Miss. 457, 6 R.C.L. 837. The refusal to give instruction "B" was not error for the reason that the instruction was unnecessary. Fortman v. Loggorini, (Mont.) 152 P. 33. The question as to whether the promise was collateral to answer for the debt of another, or an original agreement to pay a debt, is one of law. H.C. Ceiffert Co. v. Wright, (Wash.) 185 P. 577. The character of the promise is to be determined as a question of law. Breidenbach v. Orchards Co., (Mont.) 187 P. 1008. The issue at the trial was not whether defendant Freeman had made a collateral or an original promise; but whether he had made any promise at all. It was shown that the promise was clear, unequivocal and could have been understood by reasonable men in only one way; therefore, the court did not err in refusing instruction "B".
The record on appeal in this case has been filed here for the purpose of securing the review of a judgment entered by the District Court of Converse County upon the verdict of a jury in favor of the plaintiff and respondent, George Bolln Company, a corporation.
It is urged that the appeal must be dismissed, because there are no certified copies of the journal entries made in the case incorporated in the record, as required by Section 6406, W.C.S. 1920. The situation disclosed by the record appears to be this: On page 33 thereof is set forth the clerk's final certificate concerning the record, stating — to quote verbatim but omitting the formal introduction and conclusion — that:
"The foregoing instruments, which with the pages of this certificate, are numbered 1 to ____ inclusive, is the record on appeal as filed in my office by Defendant and Appellant, Luther Freeman, on the ____________ day of March, 1930, in that certain cause entitled, George Bolln Company, a corporation, Plaintiff, vs. Luther Freeman, Defendant, in Converse County, Wyoming.
"I further certify that pages 1 to ____ inclusive of said record on appeal consist of certified copies of the original pleadings and other instruments as filed therein, the petition, precipe for summons, demand for jury, summons and return, answer, notice of motion to substitute copy of deposition, order to substitute copy of deposition, precipe for subpoena, subpoena, instructions given by the court to the jury, verdict, judgment, precipe for execution, notice of appeal, petition for bond on appeal, order setting appeal bond, appraisement and return, execution, application for extension of time to file record on appeal, order granting extension of time, journal entries and clerk's certificate, and that these constitute and are certified copies of each and every one of the original papers and instruments filed in my office in said cause and that each and every one are true, full and correct copies of said papers as now appear of record in said cause."
While the certificate states that the record on appeal consists of "certified copies of the original pleadings and other instruments as filed therein," an examination of them shows that there are no separate certified copies in the record at all. However, there appears in the certificate the statement concerning the instruments listed therein that:
"These constitute and are certified copies of each and every one of the original papers and instruments filed in my office in said cause and that each and every one are true, full and correct copies of said papers as now appear of record in said cause."
Under the previous rulings of this court in McGinnis v. Beatty, 27 Wyo. 287, 196 P. 311, and McClintock v. Ayres, 34 Wyo. 476, 245 P. 298, this certificate is undoubtedly sufficient, so far as it, by its terms, goes, covering all the papers mentioned therein and among them the copies of the journal entries preceding said certificate, including as well the judgment of which review is sought. The cause, therefore, cannot be dismissed.
On page 34 of the record and following said certificate appears what seems to be a copy of a page of the appearance docket in the court below, relating to the instant case, though for some reason it is labelled "Journal Entries." It is uncertified and why it was included in the record we do not understand. Following this is a purported transcript of evidence with appended exhibits, together with two instructions numbered "A" and "B" which purport to have been asked by the defendants to be given the jury and to have been refused by the court. All are uncertified except there is a certificate by the court reporter concerning the transcript of evidence, and his official character is also certified by the clerk of the District Court. The law (§ 6406, supra) directs that the whole record "shall be certified to by the clerk of the District Court as true and correct," and points out exactly what shall be included in the record on appeal. But so far as the transcript of evidence in the case before us is concerned — which the law says "shall also form a part of the record on appeal" — the statute has not been obeyed by due certification. The transcript, accordingly, never became a part of the record. See W.H. Holliday Co. v. Bundy, (Wyo.) 289 P. 1094 and cases cited; Electrolytic Copper Co. v. Board of County Commissioners, (Wyo.) 289 P. 1096 and cases cited. The consequence of this state of the record in the pending case is that we are unable to consider the alleged errors argued in the brief of appellant, inasmuch as they all involve questions which arise solely upon the evidence offered and received on the trial of the case and upon an alleged rejected instruction. In so far as the record on appeal may be considered by us, it supports the judgment and that must be affirmed.
Affirmed.
KIMBALL, C.J., and BLUME, J., concur.