(220 P.) was MCCARTHY, J. This action was brought covered by answers given to the attorneys upby appellants Caravelis against their neph- on direct and cross examination, and it is ew, respondent Tom Cacavas, for the purpose perfectly clear that only the answers given of obtaining a decree declaring a warranty to the judge's questions were stricken. We deed for 160 acres of land near Pocatello, conclude that the action of the court in executed by 'them to him, to be a mortgage. striking the answers elicited by the judge From a judgment for respondent and an or- cannot be held to be prejudicial or reversible der denying the motion for a new trial, this error. appeal is taken. The principal assignments of error and the only ones which we will specifically mention are: (1) That the evidence is insufficient to support the findings and judgment of the court to the effect that the deed was intended to be an absolute conveyance, and not a mortgage; (2) error in sustaining a motion to strike part of the witness Valentine's testimony; (3) error in denying appellants' motion to reopen the case for the introduction of newly discovered evidence of M. E. Hughes and Gust Babalis; and (4) error in denying appellants' motion for a new trial on the ground of newly discovered evidence. "In a suit in equity, as well as in an action at law, a finding of fact made by the trial judge, who has had the benefit of observing the demeanor of witnesses upon the stand and of listening to their testimony, will not be disturbed because of conflict if the evidence in support of the finding, if uncontradicted, is sufficient to sustain it." Davenport v. Burke, 30 Idaho, 599, 167 Pac. 481. See Lambrix v. Frazier, 31 Idaho, 382, 171 Pac. 1134; Harvey v. Brett, 36 Idaho, 126, 209 Pac. 209; Bedal v. Smith, 36 Idaho, 797, 214 Pac. 213. [1] The testimony of respondent, if uncontradicted, would be sufficient to sustain the findings and judgment. It is true that both appellants and two of respondent's brothers contradicted him, testifying to facts tending to prove that the deed was intended as a mortgage. The preponderance of evidence does not, however, depend upon the mere number of witnesses. We have carefully examined the entire record. No useful purpose would be served by a detailed analysis of the evidence. Suffice it to say that there is sufficient evidence, within the meaning of the well-established rule above quoted, to sustain the findings and judgment. [3] The motion to reopen the case made some time after the close of the trial, after the court had given consideration to the case, and was apparently about ready to decide it. Exactly the same questions are raised by the motion for a new trial. Under these circumstances it could not be reversible error for the trial court to refuse to reopen the case. Even if the evidence were newly discovered within the meaning of our statute, and the failure to discover it before were not attributable to any lack of diligence on appellants' part, nevertheless the orderly procedure was to enter judgment, and permit the matter to be raised on a motion for a new trial. [4] On the trial at least four witnesses testified that respondent stated to them the deed was not intended as an absolute conveyance, but as a mortgage. In support of a motion for a new trial appellants produced the affidavits of M. E. Hughes and Gust Babalis, who both swore that respondent made similar statements to them, and that they did not inform appellants of this before the trial. Respondent insists that this evidence, even if newly discovered, could not be ground for a new trial because it is purely cumulative. Appellants, on the other hand, contend that the newly discovered evidence does not pertain to some collateral or incidental matter, but goes to the very gist of the case. They also contend that it is of a different grade or character, in that the evidence produced upon the trial was that of the appellants, who are interested parties, and that of respondent's two brothers, who were shown to be hostile to him, while the newly discovered evidence is that of disinterested, impartial witnesses not shown to be hostile to respondent. The granting of a new trial upon the ground of newly discovered evidence is largely a matter of discretion, in the exercise of [2] The witness Valentine was asked to which this court will not disturb the order of state a conversation which occurred between the trial court except in case of abuse clearhimself and respondent in regard to the ly disclosed by the record. State v. Fleming, transaction. There seemed to be some doubt 17 Idaho, 471, at page 505, 106 Pac. 305; Seain the mind of the trial judge as to whether mons v. Davis, 34 Idaho, 393, 201 Pac. 716; the witness was giving the substance of the Hall v. Jensen, 14 Idaho, 165, 93 Pac. 962. A conversation or merely his own impression. | new trial should not be granted upon that Therefore the judge examined the witness ground unless it appears reasonably probahimself. At the conclusion of this examina-ble that a different judgment would result. tion he struck all of the testimony elicited by Id. This court and most other courts have his own questions, on the ground that it held that, as a general rule, a new trial proved the witness' own deductions rather should not be granted upon the ground of than any specific conversation. However, newly discovered evidence which is merely practically every answer that the witness cumulative. This, however, is not a princigave to the judge's questions is substantially ple of law, but merely a working rule. The principle is the one above set forth, viz. that a new trial should not be granted on the ground of newly discovered evidence unless it reasonably appears that a different result would be reached upon the retrial. The Courts conclude that, as a general rule, a different result would not be reached where the newly discovered evidence is purely cumulative. This court has held, however, that a new trial should be granted even where the evidence is cumulative, if it is of so controlling a character as to probably change the result. State v. Lumpkin, 31 Idaho, 175, 169 Pac. 939. See, also, McAllister v. Bardsley, 37 Idaho, - 215 Pac. 852. with reasonable diligence have discovered and produced the witness Hughes at the trial. At least the trial court did not abuse its discretion in taking that view of it. [6] There is no proof that the appellants or either of them knew of the witness Babalis before the trial. His affidavit is directly contradicted by respondent's. Does it appear probable that the additional testimony of this one witness would cause a different result upon a retrial? This question, like all others arising upon a motion for a new trial, is for decision by the trial court in the first instance. We are not convinced that that court abused its discretion by deciding this question in the negative. It does not clearly appear from the record that the trial court abused its discretion in denying the motion for a new trial. The judgment is affirmed, with costs to respondent. BUDGE, C. J., and DUNN, WILLIAM A. LEE, and WM. E. LEE, JJ., concur. EXUM et al. v. PORTNEUF-MARSH VAL. [5] C. S. § 6888, subd. 4, provides that a new trial may be granted upon the ground of "newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." Hall v. Jensen, supra; State v. Lumpkin, supra; State v. Fleming, supra; McAllister v. Bardsley, supra. As counter affidavits on the motion for a new trial, respondent submitted those of C. W. Pomeroy and D. D. Mote, two of his attorneys, who swore that on a certain occasion, in the courthouse, in the presence of themselves and others, appellant Will Caravelis stated that the other appellant, his wife, had informed him that the affiant M. E. Hughes had told her, either in the latter part of 1915 or early part of 1916, that the said Hughes had had a conversation with respondent about that time in regard to the nature of the transaction as a result of which A deed or other written contract may be rethe property was conveyed. Appellants sub-formed, when it is shown by evidence clear mitted in rebuttal the affidavits of William and satisfactory that, owing to a mutual misEdens, one of their attorneys, and of appel- take of the parties, it does not express their lant Will Caravelis, to the effect that, at the intention. time referred to by affiants Pomeroy and Mote, said appellant stated that his wife said to him after the trial that she had had a talk with Mr. Hughes in 1915 or 1916 in which he said he had heard about the deal, but did not tell her of any facts that he knew concerning the transaction. It is established by these affidavits, however, without any conflict, that Hughes told appellant Margaret Caravelis in 1915 or 1916, before the trial, that he had had a conversation with Tom Cacavas about the transaction upon which the action is based. This was sufficient to put appellants upon notice that he might be a material witness. It casts upon them the burden of satisfactorily explaining why they did not produce Hughes as a witness on the trial. Such an explanation they failed to make. Granting, for the sake of argument, that appellant Will Caravelis did not know about Hughes until after the trial, his wife did. As she is also an appellant, and jointly interested with him in the result of the trial, her negligence is his. The upshot of the matter is that appellants did not show that they could not 2. Evidence 433(1)-Parol evidence admissible to show mutual mistake in written instrument. Parol evidence is admissible to prove that by reason of a mutual mistake of the parties a written instrument does not truly express their intention. 3. Appeal and error 1009(2)-Rule that decision supported by substantial evidence will not be set aside applicable to actions to reform written contracts. The rule that, when there is substantial evidence to sustain the verdict or decision, it shall not be set aside, applies to an action to reform a deed or other written contract, as well as to other civil actions. Appeal from District Court, Bannock County; O. R. Baum, Judge. Action by Oliver K. Exum and others against the Portneuf-Marsh Valley Irrigation Company and the Portneuf-Marsh Valley Canal Company to reform a deed. Judgment for plaintiffs, and defendant last named appeals. Affirmed. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes [3] The rule that, in order to reform & written instrument, the evidence of mutual (220 P.) McDougall, McDougall & McDougall, of Pocatello, for appellant. D. W. Standrod and J. B. Bacon, both of mistake must be clear and satisfactory, is Pocatello, for respondents. one to be applied in the first instance by the trial judge who sees and hears the witnesses DUNN, J. About February, 1915, the re- and is charged with the duty of weighing spondents, who were the owners of lots 3 and their testimony. If the record contains evi4 and the N. 1⁄2 N. W. 4, section 23, town-dence sustaining the decision of the trial ship 9 south, range 37 east B. M., conveyed judge that may fairly be said to comply with to the appellant company an easement, giv- the requirement that the proof shall be clear ing said company the right to overflow a and satisfactory, the appellate court may portion of said lands. This conveyance grew not substitute its judgment for that of the out of a controversy that had arisen between trial court. The rule that, when there is said parties after the predecessor of said substantial evidence to support the verdict company had constructed a dam in the Port- or decision, it shall not be set aside, applies neuf river for the purpose of impounding the to this kind of case as well as to other civil waters thereof for the irrigation of certain actions. Panhandle Lumber Co. v. Rancour, lands in the vicinity of Downey, Idaho, | supra. when it was found that the dam backed up the waters of the reservoir over a considerable portion of the lands of respondents. After the right acquired by the deed had been exercised by appellant for a number of years, the respondents entered into a contract to sell their land, and upon examination of the abstract of title they discovered that the deed of conveyance did not accurately describe the land that was to be flooded according to the agreement between the respondents and appellant. Respondents requested of the canal company a correction of the error in the deed of conveyance which the company refused to make, and thereupon this action was brought to reform the deed; it being claimed by the respondent that, owing to a mutual mistake of the parties, said deed failed to express the agreement intended by said parties. The case was tried before the court, and after making findings of fact and conclusions of law, sustaining the contentions of the respondents, the court entered judgment reforming the deed as prayed for. The Portneuf-Marsh Valley Canal Company appealed from the judgment. Its assignments of error go first to the introduction of oral testimony as to the agreement between the parties with reference to the land to be flooded, the insufficiency of the evidence to sustain certain findings of fact and conclusions of law, and the alleged error of the court in entering judgment for respondents. [1, 2] A deed or other written contract may be reformed when it is shown by evidence clear and satisfactory that owing to a mutual mistake of the parties it does not express the intention of such parties. Udelavitz v. Ketchen et al., 33 Idaho, 165, 190 Pac. 102; Bowers v. Bennett, 30 Idaho, 188, 164 Pac. 93; Panhandle Lumber Co. v. Rancour, 24 Idaho, 603, 135 Pac. 558. The above decisions of this court also hold that parol evidence is admissible to prove that by reason of a mutual mistake of the parties a written instrument does not truly express their intention. Cases almost without number from the highest courts of other states might be cited to the same effect on both of these points. 220 P.-8 In this case the record shows practically without contradiction that when respondents' lands were so overflowed, respondents and representatives of appellant, after considerable negotiation, agreed that appellant should have its engineer survey the lands flooded to ascertain the exact area, and that appellant would then pay respondents the sum of $40 per acre for the perpetual right to flood such lands, and also would pay respondents for the damage done to their crops during the two years preceding the settlement. It shows also that pursuant to this agreement appellant did have the lands surveyed and a map thereof made showing the flooded area to be 43.5 acres. It also shows that after the map of the survey had been made, respondents met the representatives of appellant at appellant's office at Downey, and, with the map made under appellant's direction and by its engineer before them, respondents accepted the estimate of appellant's engineer as correct, and that thereupon payment was made by appellant to respondents of the sum of $1,957, $1,740 thereof being for the right to flood said 43.5 acres of land and $217 thereof being crop damage for the two years preceding. It is the contention of appellant that the deed in controversy is clear and unambiguous and grants to appellant the perpetual right to flood the entire 160 acres of land belonging to respondents. An examination of the deed shows that it is not by any means clear just what area may lawfully be flooded by appellant. It is, however, perfectly clear from the record that if it was the intention of the parties that respondent should sell, and that appellant should buy, the right to flood the entire tract, then there was no reason whatever for surveying the flooded area and making a map thereof. In that case the deed would simply have provided for the right to flood the entire quarter section. Appellant claims that it had no knowledge whatever of the agreement that resulted in the execution of the deed, but the record shows that appellant was operating the irrigation system for several years before the execution of the deed, that complaint was made to it of the flooding of respondents' lands, and that it referred the matter to one Ware, who was then the engineer in charge, and it may be fairly concluded from the evidence that it was fully cognizant of all the negotiations leading up to the deed. An examination of the record shows the assignments of error to be without merit. The evidence of mutual mistake of the parties is clear and satisfactory, and the court did not err in entering a judgment reforming the deed. The third assignment in support of the motion to dismiss the appeal is that "the transcript on appeal was not filed with the Supreme Court or the clerk thereof within the time provided by law and the rules of said court for the filing of said transcript." The judgment was entered September 23, 1922, and the appeal therefrom was perfected December 20th thereafter. On March 27, 1923, counsel for appellant applied for and obtained from the Chief Justice an order for an extension of time in which to file and serve a completed transcript on appeal. The judgment is affirmed, with costs to The affidavit in support of the application respondents. BUDGE, C. J., and McCARTHY, WIL LIAM A. LEE, and WM. E. LEE, JJ., concur. INTERMOUNTAIN ASS'N OF CREDIT MEN v. REXBURG FARMERS' SOCIETY OF EQUITY, Limited. (No. 4137.) (Supreme Court of Idaho. Nov. 1, 1923.) Appeal and error 624, 627 (2)-Unless appellant is without fault, appeal will be dismissed where transcript not filed within 90 days, though extension granted after time had expired. Where the transcript on appeal has not been filed within 90 days after the appeal has been perfected, as required by rule 26 of this court (211 Pac. xx), and no extension of time in accordance with rule 28 has been obtained before the expiration of such time, the appeal will be dismissed, unless the appellant is without fault in the matter. Wm. E. Lee, J., dissenting. for this order assigns no reason for the delay, except that the clerk of the district court "has been so rushed with business that the transcript on appeal has not been made up, and that an extension of 60 days is necessary for the purpose of preparing the transcript." We have repeatedly held that an application for an extension of time in which to file the record on appeal in this court must be obtained before the time has expired, or some sufficient reason shown why the application was not made within this time, and further, that an order granting an extension of time for the filing of the record on appeal, if made by any justice of this court after the time has expired, is made without prejudice to the right of the adverse party to move for a dismissal of the appeal. Rule 26 of this court (211 Pac. xx) requires the application for an extension of time to be made within 90 days after perfecting the appeal, and, if such order is not obtained before this time expires, the appeal will be subject to dismissal, unless appellant shows some justification for not having obtained the order within the proper time. This appeal should be dismissed, under the Appeal from District Court, Madison Coun- authority of T. W. & L. O. Naylor Co. v. ty; Geo. W. Edgington, Judge. Bowman, 36 Idaho, 211, 209 Paç. 1071; H. B. Lake & Co. v. Bales, 36 Idaho, 142, 210 Action by the Intermountain Association of Pac. 396; Gemmell v. Collins, 36 Idaho, 416, Credit Men, a corporation, against Rexburg 210 Pac. 738; Dye v. Moscow State Bank, 36 Farmers' Society of Equity, Limited, a corpo- Idaho, 464, 212 Pac. 870; Gates v. Todd Comration. Judgment for plaintiff, and defend-mercial Co., 36 Idaho, 784, 213 Pac. 1017; ant appeals. On motion to dismiss appeal. California Gulch Placer Min. Co. v. Patrick, Appeal dismissed. 37 Idaho, Miller & Ricks, of Rexburg, for appellant. L. Tom Perry, of Logan, Utah, for respondent. WILLIAM A. LEE, J. Respondent moves to strike from the transcript on appeal the bill of exceptions, and dismiss the appeal. In support of both motions it assigns numerous reasons, but, in view of the record, and one of the grounds assigned for a dismissal of the appeal, we do not deem it necessary to consider the motion to strike. 218 Pac. 378. It follows that, if the appeal is dismissed, a consideration of the motion to strike the bill of exceptions would serve no useful purpose. BUDGE, C. J., and McCARTHY and DUNN, JJ., concur. WM. E. LEE, J. I dissent for the reasons stated in my dissenting opinion in Utana Mining Corporation v. Salmon River Power & Light Co. (Idaho) 218 Pac. 789. For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes (220 P.) STODDARD v. WILLIAM A. DAVIS CO. et al. (No. 4150.) (Supreme Court of Idaho. Nov. 7, 1923.) Submission of controversy 9-Proceeding dismissed in absence of statutory affidavit. A proceeding based upon an agreed statement of facts, signed by counsel for the parties, will be dismissed for want of jurisdiction when the affidavit required by C. S. § 7305, showing that the controversy is real and the proceedings in good faith to determine the rights of the parties, is not made and presented to the court. Appeal from District Court, Fremont County; Geo. W. Edgington, Judge. Action by J. H. Stoddard against the William A. Davis Company and another. Judgment for plaintiff, and defendants appeal. On motion to dismiss. Appeal dismissed, and judgment vacated. C. Redman Moon, of St. Anthony, and Hubert D. Bath, of Bozeman, Mont., for ap pellants. Our statute for the submission of an ac tion upon an agreed case was taken verbatim from California. California adopted it from New York. Many other states have enacted statutes substantially the same as the Idaho statute, in which the same or a similar requirement as to affidavit of good faith is required, and such statutes have been construed by the courts of New York, California, Indiana, Kentucky, Iowa, Wisconsin, North Carolina, South Carolina, and Montana. It has been uniformly held that where there is no affidavit there is no submission of a controversy within the purview of the statute, and the court does not acquire jurisdiction. "This mode of proceeding without summons or voluntary appearance and without issue made by the pleadings, being unknown to the comfecting the jurisdiction of the court must be mon law, the statutes upon all questions afstrictly construed. The court acquires jurisdiction and can render judgment only when the parties observe the necessary requirements and formalities of the statute." 1 Standard Ency. Proc. 738, and note citing many authorities. In the case of Jones v. Hoffman, 18 B. F. A. Miller, of St. Anthony, and Miller & Mon. (Ky.) 656, it was held: Ricks, of Rexburg, for respondent. BUDGE, C. J. This action was attempted to be submitted to the lower court as an agreed case, under the provisions of C. S. § 7305, which is as follows: "Parties to a question in difference which might be the subject of a civil action, may, without action, agree upon a case containing the facts upon which the controversy depends, and present a submission of the same to any court which would have jurisdiction if an action had been brought; but it must appear, by affidavit, that the controversy is real and the proceedings in good faith, to determine the rights of the parties. The court must thereupon hear and determine the case and render judgment thereon, as if an action were pending." Counsel for respondent has presented motions to dismiss the appeal and strike the transcript upon various grounds, the most serious of which is the alleged lack of jurisdiction on the part of the lower court to entertain the proceeding. It will be noted from this statute that an express condition to the submission of a case under its provisions is that "It must appear, by affidavit, that the controversy is real and the proceedings in good faith, to determine the rights of the parties." In this case no such affidavit appears in the record. The case was submitted upon a stipulation of facts. At the close of the recital of facts stipulated, two questions of law were propounded to the court for its decision. After argument the court rendered the judgment from which this appeal is taken. "The language of this section is explicit, and admits of but one construction. The jurisdiction of the court to hear and determine an agreed case depends upon the conditions prescribed by the latter clause, and without the required affidavit, setting forth the facts mentioned, the court has no authority to hear or determine the case, or to render a valid judgment." A bare stipulation to submit a controversy to the court under this statute is not of itself sufficient to confer jurisdiction. Also in the case of Keeline v. Council Bluffs, 62 Iowa, 450, 17 N. W. 668, it was held: "A proceeding based upon an agreed statement of facts, signed by counsel of the parties, will be dismissed for want of jurisdiction when the affidavit required by section 3409 of the Code, showing 'that the controversy is real, and that the proceeding is in good faith, to determine the rights of the parties,' is not made and presented to the court." No case has been called to our attention in which it is held that the court may be vested with jurisdiction in the absence of the affidavit required by the statute. So strictly has this requirement been construed that in California an affidavit which recited that "the statement of the case" was a "real con troversy," instead of stating that the controversy was real, and which recited that the "contention" was in good faith, instead of stating that the proceedings were in good faith, was held insufficient. White v. Clarke, 111 Cal. 425, 44 Pac. 164. In the case of Waters v. Boyd, 179 N. C. 180, 102 S. E. 196, it was held that the recital in the affidavit that "the controversy between them is genuine, and is submitted For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |