Featherstone v. Keane , 18 Idaho 24 ( 1910 )

SULLIVAN, C. J.

This action was brought to recover on two separate causes of action: First, on account of money had and received by the defendant for and on behalf of the plaintiff in the sum of $400; and second, for personal services alleged to have been rendered for the defendant by the plaintiff of the value of $300.00. The answer put in issue all the material allegations of the complaint and averred as an offset or counterclaim damages in the sum of $12,000 resulting from incompetency and neglect on behalf of the plaintiff in performing certain services as an attorney for the defendant. The cause was tried by the court with a jury, and the jury returned the following verdict:

“We, the jury in the above-entitled action, find for the plaintiff on his first cause of action and assess his damages at four hundred dollars ($400.00).

“We further find for the defendant on plaintiff’s second cause of action.”

On that verdict a judgment was entered in favor of the plaintiff for the sum of $400. The appeal is from the judgment.

The respondent interposed a motion to strike from the transcript the statement or bill of exceptions contained therein, and to strike the transcript from the files. The motion to strike the statement from the transcript was based on the ground that it had not been filed, served and settled within the time required by law. Upon an examination of the record, we find the motion well taken and is therefore sustained.

The motion to strike the transcript from the files was based on several different grounds, the last one being that the transcript was not filed within sixty days from and after the appeal was perfected. On an examination of the record, we find that the transcript was filed within the time provided by law, after deducting the time during which the attorneys for the respondent retained the transcript on appeal before certifying or refusing to certify the same. Rule 25 of the rules of this court provides that the time above referred to shall be deducted from the sixty-day period within which the transcript must be filed after an appeal has been perfected.

We have examined the other grounds contained in said motion to strike the transcript from the files and find no cause therein for granting the motion. The motion to strike the transcript is therefore denied.

This leaves the case for hearing upon the judgment-roll alone, which contains no bill of exceptions or statement on motion for a new trial.

It is contended that the court did not find upon all of the issues made by the pleadings. There is nothing in that contention, as this is an action at law and the jury found for the plaintiff upon the first cause of action stated in the complaint and for the defendant on the second cause of action. The jury by its verdict in effect found that the defendant was not entitled to any damages as an offset against plaintiff’s claim, or at all, thus settling all of the issues made by the pleadings. There is no merit in defendant’s,contention that the court failed to find upon all of the issues made by the pleadings.

The judgment is therefore affirmed, with costs of this appeal in favor of the respondent.

Stewart and Ailshie, JJ., concur.