Houghton v. Trumbo

McFarland, J. This may be described, generally, as an action for an accounting between plaintiff and defendants, of matters growing out of business connected with the property known as the Bijo.u Theater. Defendant Trumbo filed a demurrer to the complaint, which was overruled. He then filed an answer and also a cross-complaint. Defendant Thomas did not demur, [240]but filed an answer and cross-complaint. Each of the defendants filed an answer to the other’s cross-complaint. The judgment was rendered for plaintiff against Trumbo for a certain sum of money; against Thomas for a certain sum of money; and also in favor of Trumbo against Thomas for a certain sum of money. Thomas appeals from the judgment. He procured the case to be submitted upon his own points and authorities, because none had been filed by respondent within the time prescribed by the rules of this court.

There is no bill of exceptions or statement before us which we can consider. The defendant Trumbo made a motion for a new trial, and submitted a draft of a bill of exceptions to be used on his said motion, and on any appeal which he might take. The judge certified it in this language: “The foregoing bill of exceptions is hereby certified to be correct, and may be received as the engrossed bill of exceptions of the defendant and cross-complainant, Isaac Trumbo, on his motion for a new trial, and may also be used by him on any appeal that he may have taken or may hereafter take from the judgment and decree rendered herein.” Trumbo has not appealed, and it does not appear whether or not his motion for a new trial was ever determined. The appellant Thomas has procured this bill of exceptions of Trumbo to be printed in the transcript; but it is quite evident that it cannot be considered. It was prepared and submitted by Trumbo alone and certified as his bill. There is not in it, from beginning to end, a single objection made by Thomas, or a single exception taken by him. He may have waived every point made by Trumbo and every exception which the latter took. If it had been intended to be, and had been, Thomas’ bill of exceptions, to be used by him on any motion on appeal, the matter of the bill might have been materially different. He also prints on the last page of the transcript —after the stipulated certification thereof—what is called “ Bill of Exceptions of Defendant and Cross-complainant and Appellant, R. P. Thomas,” and consists entirely of [241]