Guthrie v. Phelan

Citations

• 2 Idaho 95
• 6 P. 107
• 1885 Ida. LEXIS 2

Syllabus

<p>Record on Appeal prom Judgment. — On appeal from a judgment, without a statement, nothing belongs to the record, except the judgment-roll, and no question arising outside the roll can be considered.</p> <p>Exceptions Taken at the Trial. — Exceptions taken at the trial and settled as provided in sections 405 and 406 of the Civil Practice Act form part of the judgment-roll, and constitute part- of the record on appeal from the judgment.</p> <p>Issues op Law and Fact. — When there is both a demurrer and answer to the same complaint, raising both an issue of law and fact, the issues of law should be first determined.</p> <p>Same. — When there are both issues of law and fact and the cause is brought on for trial and a judgment rendered, the presumption will be indulged on appeal that the issue of law was previously disposed of by an order overruling the demurrer.</p> <p>Exceptions Deemed to have been Taken. — The exceptions which, by section 403 of the Practice Act, the adverse party is deemed to have taken, have the same force and effect in the conduct of the action as other exceptions, and cannot be considered, on appeal, without being incorporated into a bill of exceptions and made a part of the judgment-roll.</p> <p>(Above syllabus by the court.)</p> <p>Demurrer — Waiver—Practice on Appeal. — Where defendant demurred to the complaint in the trial court, but afterward waived such demurrer, he cannot have the same considered upon appeal.</p>