Morris v. Angle

By the Court, Sprague, J.; The statement found in the transcript with the caption “ Statement on Appeal,” is manifestly the statement of ap[240]pellant on motion for a new trial; the matters therein contained clearly indicate that the same was intended as a statement on motion for a new trial; and further, the transcript discloses that defendant in due time and form gave notice of his intention to move for a new trial, and that the motion was in due time and form made by him, which motion was argued before the Court by the counsel of the respective parties, and no objection appears to have been made by plaintiff to the hearing of such motion for want of a proper statement on which to base the same; and it is not to be presumed that the Court would proceed to hear and determine a motion based upon the ground “ that the evidence is insufficient to justify the findings,” without a settled statement as required by law.

The appeal is by the defendant from the judgment, and also from the order denying his motion for a new trial.

The notices of motions to strike out and to dismiss, and the orders of the Court upon such motions, also that portion of the transcript denominated the judgment roll in a former suit between these parties, do not legitimately constitute a portion of the record in this case on appeal. They are not embodied in any statement or bill of exceptions, and constitute no part of the judgment roll in this case, hence cannot be regarded on this appeal.

The plaintiff claims, and the Court below so found, that the transactions between the parties of May 30th, 1866, constituted a mortgage by plaintiff to defendant to secure an existing indebtedness of plaintiff to defendant. Defendant insists that the evidence does not sustain this finding, but that such finding is against the evidence. If this point is well taken, there is no necessity for considering other points urged by appellants. The transaction of May 30th, 1866, is evidenced by two separate instruments in writing; and to these instruments, and the surrounding circumstances of the parties thereto, at the time of their execu[241]tion, we must look for a true interpretation of what the parties intended to accomplish by the execution of these writings. From these writings, and the surrounding circumstances attending their execution, as disclosed by the evidence, the parties, in my judgment, most clearly intended to accomplish an absolute sale of an undivided half of seven hundred and fifty sheep, by the plaintiff" to the defendant, in consideration of six hundred and fifty-six dollars and twenty-five cents then paid by defendant to plaintiff', as follows: Four hundred and twenty-six dollars by the surrender of his note for that sum held by defendant, and the balance, two hundred and thirty dollars and twenty-five cents, by defendant’s note, then executed and delivered to plaintiff; and further, to arrange the terms for a purchase of three hundred and seventy-five sheep of a specified quality, by plaintiff from defendant, to be consummated on the 1st day of June, 1867. The circumstances attending the making and execution of these two instruments of writing on the 30th of May, 1866, most conclusively demonstrate that the terms of each instrument fully and plainly express the intention of the parties thereto. These circumstances and facts are substantially as follows: Prior to the 30th day of May, 1866, plaintiff and defendant had been joint owners of seven hundred and fifty sheep, which were then on defendant’s ranch. Plaintiff, on that day, was indebted to defendant in the sum of four hundred and twenty-six dollars, for which defendant held his note, bearing interest at the rate of two per cent per month; and for the purpose of paying and taking up that note he made an absolute and unconditional sale of his interest in the herd of sheep for the sum of six hundred and fifty-six dollars and twenty-five cents, which he received by taking up his note to defendant for four hundred and twenty-six dollars thereof,