for a new trial, and when such motion is put in writing, and filed as a part of the records in the case, we think it proper to include the same as a part of the transcript, and that a formal motion, while not required, is very commendable practice.

The third ground of the motion we think should be sustained. Section 4439, Rev. Codes, provides the grounds upon which a new trial may be asked, among which are: "(4) Newly discovered evidence, material for the party making the application, which he could not, with reasonable diligence, have discovered and produced at the trial." Section 4441 provides that: "The party intending to move for a new trial must, within ten days after the verdict of the jury, or after notice of the decision of the court

an order striking each and all of said affi- | that a formal motion for a new trial shall davits from the files of said action. A bill be in writing, yet it contemplates a motion of exceptions was prepared and allowed by the judge and filed in said cause, wherein the defendants excepted to the ruling of the court in striking said affidavits from the files. Afterwards, and on March 3, 1909, the court overruled the motion for a new trial and certified that, upon the hearing of said motion, the papers used and considered consisted of "Statement of the Case, Bills of Exceptions, and Records and Files in the Action." In this court the respondent moves to strike from the transcript the notice of motion, motion, and affidavit upon which the continuance was asked: First, for the reason that said papers are not incorporated in and made a part of a bill of exceptions; second, the motion for a new trial, for the reason that the same is not properly a part of the transcript and is not incorporated in any bill of exceptions; third, all those certain affidavits referred to, being the affidavits filed on motion for a new trial and stricken from the files by the trial judge, for the reason that they are not properly a part of the record on appeal and are not incorporated in and made a part of any bill of exceptions; fourth, the bill of exceptions purporting to show the ruling of the court upon the motion to strike the affidavits referred to from the files, for the reason that the same was not properly settled by the judge, in that it appears upon the face thereof that it was setcled and filed on the day after, and not at the time the exception was taken, and was

not served upon opposing counsel, and was settled without his agreeing thereto or having any notice, and was not settled according to the method provided in section 4426 or

4430 of the Revised Codes.

The first question for determination in this case is whether the notice of motion, motion, and affidavit for a continuance, are made a

part or are incorporated in a bill of exceptions. This part of the motion is based upon the fact that such papers are not copied into the bill of exceptions. In the case of Shurtliff v. Extension Ditch Co., 14 Idaho, 416, 94 Pac. 574, this court held, in effect, that a document or paper could be made a part of a bill of exceptions by reference, without copying the same therein, providing the identification was sufficient, and that the paper or document purporting to be thus identified in the bill was placed in the record, and, in the absence of a showing to the contrary, the court would presume that the document or paper appearing in the record was the one identified and made a part of the bill of exceptions. For this reason the motion to strike from the transcript the notice of motion, motion, and affidavits, upon which the continuance was asked, must be overruled.

The second part of the motion, to strike out the motion for a new trial, is also over

***

serve upon the adverse party, a notice of his intention, designating the grounds upon which the motion will be made, and whether the same will be made upon affidavits, or the records and files in the action, or the minutes of the court or a bill of exceptions, or the statement of the case." The judgment in this case was entered and filed on November 30, 1908. On December 2d, and within 10 days, the appellant gave notice of intention to move for a new trial and served the same upon counsel for plaintiff, on the grounds: First, insufficiency of evidence; second, errors of law occurring during the trial, and excepted to; third, errors of law occurring at the trial and deemed excepted to; fourth, errors of law and abuse of discretion in overruling the motion for a

continuance.

"Said motion will be made upon a statement of the case and bill of exceptions and assignments of error to be hereafter prepared, served, and filed herein." Then follows: defendants, which they could not with rea"(5) Newly discovered evidence material for sonable diligence have discovered and produced at the trial.". There is also printed in the record a motion for a new trial, filed February 15, 1909, stating the same grounds as are contained in the notice of intention, with this modification: "Upon newly discovered evidence which defendants could not with reasonable diligence produce at the trial of said cause, as shown by the affidavits of Fred T. Dubois, C. W. Dowden, Mrs. Arthur Huntington, Dr. A. W. Langeman, D. B. Hilbert, D. W. Greenburg, James Hayes, and Henry Heitfeld." Then follows this statement: "This motion is made and based on all of the records and files herein, a statement of the case herein heretofore served on counsel for the plaintiff and deposited with the clerk of said court on February 4, 1909." This motion for a new trial, however, does not appear to have been served upon counsel for plaintiff, and cannot take the place of

Then follows the statement:

turbed on appeal unless it appears there has been an abuse thereof. Herron v. Jury, 1 Idaho, 164; Cox v. Northwestern Stage Co., 1 Idaho, 376; Lillienthal v. Anderson, 1 Idaho, 673; Holt v. Gridley, 7 Idaho, 416, 63 Pac. Reynolds v. Corbus, 7 Idaho, 481, 63 884; Robertson v. Moore, 10 Idaho, 115, 77 Pac. 218; Richardson v. Ruddy, 10 Idaho, 561, 83 Pac. 606; Rankin v. Caldwell, 15 Idaho, 625, 99 Pac. 108.

188;

Pac.

It will be seen by section 4441, supra, that | court, and his ruling thereon will not be disthe party intending to move for a new trial must, within 10 days, serve notice, designating therein the grounds upon which the motion will be made, and whether the same will be made upon affidavits. Referring to the notice of intention, it will be observed that it does not state that such motion will be made upon affidavits. Subdivision 1 also of the same section requires that, if the motion is to be made upon affidavits, the moving party must within 10 days after service, or of such further time as the court or judge may allow, file such affidavits with the clerk. As seen above, the notice was served on December 2d. If the application for a new trial was based upon affidavits, they must necessarily have been filed on or before December 12th. Counsel for appellant, however, relies upon an order made by the district judge on November 28th, and appearing in the record. A reference to this order discloses that the court on that day granted an extension of time of 60 days after the filing of the judgment, within which to prepare, serve, and file a draft of a bill of exceptions or statement of the case on motion for a new trial, or both; but no extension whatever is granted to prepare or file affidavits on motion for a We are forced to the conclusion that the affidavits stricken from the files by the district judge, at the hearing of the motion for a new trial, had no place in the files, and that the court committed no error in striking them from the files. The fact, however, that these affidavits were properly stricken from the files, is not a reason why the bill of exceptions, containing such affidavits, should be stricken from the files, as this is the only method by which the ruling of the court, in striking such affidavits from the files, could be preserved in the record and brought to this court for review. While it is true that the bill of exceptions is dated one day after the ruling striking such affidavits, yet there is nothing in the record to show but that the bill was presented to the judge for signature at the time the decision was made, and the mere fact that it was signed one day after is not a reason why it should be stricken from the files, and it will be presumed that the court extended the time to the date when it was signed, as authorized, under the provisions of section 4426. The record shows that the bill of exceptions was settled and allowed by the trial judge, and, in the absence of a showing to the contrary, this court will presume that the trial judge found that the same had been served before the settlement was allowed, as this court will not presume that the trial judge settled the bill of exceptions without due and proper service thereof.

This brings us to the real question in this case, and that is: Was the showing made for a continuance sufficient? It is the rule in this state that a motion for a continuance is

The motion for a continuance was made by both Henry Heitfeld and Fred T. Dubois, and the affidavit of Henry Heitfeld was made in support of the motion for a continuance. Prior to the time of making the motion for a continuance, the issues had been joined. The defendant had denied, in substance, the allegations of the complaint, and the issue was presented as to whether or not the plaintiff had paid or advanced money to one A. N. Buchanan upon the request of the defendants, and had the defendants agreed to pay the same, and had the time of payment been extended, under a promise and agreement of said defendants to pay said money? From this answer it appears that the defendant's presence at the trial would necessarily be of very great importance, not only to aid counsel, but as a witness. The affidavit shows that it was agreed between the defendants that Dubois could and would be present at the trial of said cause, at any time upon receipt of a telegram giving him reasonable notice of the date of the trial. The cause was set for trial, and a telegram sent to the defendant Dubois informing him of such fact. This telegram was not received by him, but his wife immediately sent a reply thereto that her husband, Fred T. Dubois, one of the defendants, was in Springfield, Ill., owing to Dr. Dubois' death. It further appears that the Dr. Dubois referred to was a brother of the defendant, Fred T. Dubois. Upon receipt of this telegram, his codefendant, Heitfeld, wired Fred T. Dubois at Springfield, Ill., advising him of the date set for the trial and urging him to be present, and received no reply. The affidavit further shows that Fred T. Dubois was at Springfield for the purpose of attending the funeral and interment of the remains of his brother and looking after certain interests at that point relative to the estate of his deceased brother, and the affidavit further shows that, in case said Fred T. Dubois reached Lewiston on or before the date of trial, the defendants would be willing and ready to go to trial; but, if he did not reach there in time for the trial, a continuance would be asked until the next term of court.

While it is true that this affidavit does not go into detail with reference to the circumstances under which Fred T. Dubois left the state and went to Springfield, Ill., and the reason for his detention there, yet, from the very nature of the case, it is apparent that

ant, to give in detail all of the circumstances | vented from having their day in court. More which caused Dubois' detention in Springfield. house v. Morehouse, 136 Cal. 332, 68 Pac. It is apparent, however, from the affidavit 976. that Dubois was unable to be present at the

SULLIVAN, C. J., and AILSHIE, J.,. concur.

KEANE v. PITTSBURG LEAD MINING CO..
(Supreme Court of Idaho. Nov. 3, 1909.)
1. TRIAL (§ 178*)-DIRECTION OF VERDICT FOR:
DEFENDANT.

The judgment is reversed, and a new trial trial. He was a defendant, a party interest- ordered. Costs awarded to appellants. ed in the trial, and a witness for defendants. He had a right, unless he absents himself without reason, to be present, to advise and assist counsel, as well as testify in his own behalf. From the nature of the answer, it would appear that the defendants had a good defense, if they were able to prove the allegations of such answer, and from the facts contained in the affidavit it is apparent that the defendants were acting in good faith in asking for the continuance. Section 4371, Rev. Codes, provides: "Either party may bring an issue to trial, or to a hearing, and in the absence of the adverse party, unless the court, for good cause, otherwise direct, may proceed with his case," etc. This section directly applies to the case now under consideration; that is, the plaintiff had a right to bring the case to trial in the absence of the defendant Dubois, unless the court for good cause otherwise direct. In other words, if good cause is shown, then the court should direct a postponement.

We are unable to discover what more the

defendant Heitfeld could have shown in his affidavit than he did show, under the peculiar circumstances of this case. As said by the Supreme Court of California, in the case of Jaffe v. Lillienthal, 101 Cal. 175, 35 Pac. 636: "It is the right of parties to be present at the trial of their cases. This right may be waived, and should be held to be waived where the absence of the party is voluntary and under circumstances which ought not to induce a reasonable man having a due regard for the rights and interests of others and of the public, all of whom are interested in the due and prompt administration of justice, to absent himself." In line with the In line with the further discussion in that case, we may well observe that, so far as the question of dili

gence on the part of Heitfeld was concerned, no amount of diligence would have prevented the sickness or death of the defendant's (Dubois') brother, and the fact that the defendant Dubois was engaged in attending the interment of his deceased brother at the time when respondent claims he should have been present at the trial, we think, is not a voluntary absence, or one which would not induce a reasonable man to absent himself, under the circumstances, and is a sufficient legal reason why the cause should have been postponed. If the defendants have a meritorious defense as they alleged in their answer and in the affidavit for a continuance, then they should have an opportunity to present the same in court, unless without reason or excuse they refrain from doing so; and we think, under the facts contained in this affidavit, that the defendants have been pre

fact, and there is evidence which tends to supWhere the pleadings present an issue of port the allegations of the complaint, and it is necessary to determine such issue of fact in order to determine whether the plaintiff or the defendant shall recover, an instruction which directs the verdict of the jury for the defendant has the same effect as the sustaining of a motion for a nonsuit, and admits the truth of the plaintiff's evidence, and every inference of fact is to the effect that there is no evidence supthat can be legitimately drawn therefrom, and porting the plaintiff's case and that the evidence would not support a verdict, even if found for the plaintiff; and, if there is evidence sup

porting the complaint, such instruction is er

roneous.

[Ed. Note.-For other cases, see Trial, Cent.. Dig. §§ 401-403; Dec. Dig. § 178.*] 2. EVIDENCE (§ 183*)-BEST AND SECONDARY.

Where certain facts appear of record or in written instruments, it is error for the court to admit oral testimony of the contents of such records or instruments without first showing their loss or disappearance and the inability to produce the same.

[Ed. Note.-For other cases, see Evidence, Cent. Dig. §§ 605-637; Dec. Dig. § 183.*] 3. WITNESSES (§ 388*)-IMPEACHMENT-LAYING FOUNDATION.

write a certain letter containing certain matter, and objection is made to such question without such witness being shown such letter or given an opportunity to identify the same, it is error for the court to overrule such objec

Where a witness is asked if he did not

tion.

[Ed. Note.-For other cases, see Witnesses, Cent. Dig. § 1239; Dec. Dig. § 388.*] 4. EVIDENCE (§ 471*)-OPINION EVIDENCE

UNDERSTANDING OF CONTRACT.

Where the relationship between K. and V. is fixed by contract, it is error to permit V. matter was, as the question is one of contract to testify as to what his understanding of the and is to be determined by the contract, and not by V.'s understanding of the relationship.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2151, 2154; Dec. Dig. § 471.*]

5. EVIDENCE (§ 471*)-OPINION EVIDENCEAUTHORITY OF AGENT.

Where the authority of an agent is called in question, it is error to permit the agent to testify as to his opinion of his authority, as the question is not one of the witness' opinion as to authority, but what the authority in fact

was.

[Ed. Note. For other cases, see Evidence, Cent. Dig. §§ 2149-2151; Dec. Dig. § 471.*]

6. JUDGMENT (§ 715*) -"RES JUDICATA" BASIS.

The basis upon which an adjudication bars a future action is that the same question or matter was actually and directly in issue and judicially determined in the former suit between the same parties or their privies by a court of competent jurisdiction.

[Ed. Note. For other cases, see Judgment, Cent. Dig. § 1244; Dec. Dig. § 715.*

For other definitions, see Words and Phrases, vol. 7, pp. 6126-6130; vol. 8, pp. 7786, 7787.1 7. JUDGMENT (§ 652*) - CONCLUSIVENESS— MATTERS CONCLUDED.

Where a petition to intervene is filed, and the prayer of such petition is granted upon condition that the petitioner file an answer or crossbill within a fixed time, and he fails to file such answer or cross-bill, and judgment pro confesso is entered against him, the effect of such judgment is only to preclude his right to intervene, but does not conclude him upon any matter which might have been put in issue by such answer or cross-bill.

[Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1164; Dec. Dig. § 652.*]

8. JUDGMENT ( 654*)-CONCLUSIVENESS-DECISION ON MERITS.

A judgment against a petitioner to intervene, disallowing such petition or dismissing the same because an answer or cross-bill is not filed, will not support the plea of res adjudicata, as the judgment is only a judgment of nonsuit. [Ed. Note.-For other cases, see Judgment, Cent. Dig. § 1165; Dec. Dig. § 654.*] 9. PRINCIPAL AND AGENT (§ 120*)-AUTHORITY TO MAKE CONTRACT-ADMISSIBILITY OF EVIDENCE.

Where the question of the authority of an agent to make a contract is in issue, all evidence which tends in any way to show such authority or the limitation upon such authority is admissible.

[Ed. Note.-For other cases, see Principal and Agent, Cent. Dig. §§ 402-412; Dec. Dig. § 120.*1 10. APPEAL AND ERROR (8 530*)-RECORD

-

MATTERS TO BE INCLUDED TAXATION OF
COSTS.

find for the defendant." In accordance with this instruction the jury returned a verdict for the defendant. Plaintiff moved for a new trial which was overruled, and this appeal is from the judgment and from the order overruling the motion for a new trial.

The plaintiff claims that he was one of the incorporators of the California Consolidated Mining Company, and subscribed for 333,333 shares of the capital stock of said company, which shares were issued and delivered to the plaintiff; that 216,667 shares of said stock were indorsed in blank by the plaintiff, and were deposited with James Viles of Chicago, Ill., for the purpose of sale; that J. H. McClarren of Pittsburg, Pa., was engaged in negotiations for the purchase of a majority of the stock of the California Consolidated Mining Company and other mining claims adjoining for the purpose of organizing a corporation and promoting the development of said property; that McClarren opened negotiations with Viles and this plaintiff for the purchase of the majority of the capital stock of the said California Consolidated Mining Company, said Viles and the plaintiff being the principal stockholders of said company, and that said stock was deposited by this plaintiff With Viles at the request of McClarren, with instructions to deliver the same to McClar

ren or upon his order upon the payment to said Viles for said stock of the sum of 10 cents per share, to wit, $21,066.70; that McClarren knew that the plaintiff was the owner of said stock, and that Viles was acting solely and only as the agent of the plaintiff; that on March 28, 1905, Viles sold, transferred, assigned, and delivered the said 216,667 shares of stock to McClarren, as trustee for the defendant, and that said McClarren took and accepted said stock from said Viles, and caused the same to be duly transferred upon the books of the corporation into the name of McClarren, trustee, for the defendant, and afterwards caused the defendant to be incorporated, and thereafter conveyed said 216,667 shares to the defendant; that neither McClarren nor the Appeal from District Court, Shoshone defendant has paid the purchase price for County; W. W. Woods, Judge.

An order of the court made after final judgment taxing costs is an order from which a separate appeal is allowed; and an appeal from the judgment does not present to this court for review the action of the court in taxing costs, and the memorandum of costs and the motion to retax are not properly a part of the record on appeal from the judgment.

[Ed. Note.-For other cases, see Appeal and Error, Cent. Dig. § 2396; Dec. Dig. § 530.*] (Syllabus by the Court.)

Action by Joseph B. Keane against the Pittsburg Lead Mining Company. From a judgment for defendant, and an order denying a new trial, plaintiff appeals. Reversed. Gray & Knight, for appellant. Kerns & Ryan, for respondent.

said stock, and the same is due, for which judgment is demanded.

The defendant admits that the plaintiff was a subscriber for 333,333 shares of the capital stock of the California Consolidated Mining Company, but denies that such stock was ever issued and delivered to the plaintiff, and denies that the plaintiff was the owner of 216,667 shares, or that the same were indorsed in blank by plaintiff and deposited with Viles for sale; admits that J. H. McClarren was engaged in negotiating for the purchase of a majority of the stock of the California Consolidated Mining Company and opened negotiations with James

STEWART, J. At the close of the evidence the court gave to the jury the following instruction: "Gentlemen of the jury, the court instructs you as a matter of law that the evidence is insufficient to support a verdict in favor of the plaintiff in this -case, and you are therefore instructed to