On Petition for Rehearing

Citations

• 14 Idaho 614
• 95 P. 696

Syllabus

<p>4. See. 4456, Eev. Stat., requires that a copy of any order made on. demurrer shall become a part of the judgment-roll. An order made on demurrer may be announced from the bench and entered in the minutes of the court, and thereby become as fully the order and decision of the court on the demurrer as if it had been drawn up and signed as a separate instrument and filed with the clerk. In either event a copy of any such order, whether entered on the court minutes or made and filed with the clerk, becomes a part of the judgment-roll, and is reviewable on an appeal from a final judgment.</p> <p>5. The minutes of the court, as such, are not properly a part of the judgment-roll, except in so far as they may contain any order or judgment, a copy of which is by statute made a part of the judgment-roll.</p> <p>6. An order made and entered in the minutes of the court striking any allegations from a pleading cannot be reviewed on an appeal from the judgment, unless the same is incorporated in a bill of exceptions.</p> <p>7. Under the provisions of sec. 4427, Rev. Stats., it is unnecessary to take an exception to an order striking out a pleading or a portion thereof, and it is likewise unnecessary to incorporate such order or ruling in a bill of exceptions, and the same appearing in the record or files may be reviewed on appeal as though settled in a bill of exceptions. In order, however, to have such exception reviewed by the appellate court without incorporating the same in a bill of exceptions, it is necessary to move for a new trial and use such record and files as provided for by see. 4443, Rev. Stat., in which case the same may be used on appeal from the order granting or refusing the motion for a new trial.</p> <p>(Syllabus by the court.)</p>