remit

$723.37. Upon the hearing of the motion for a new trial the court was of the opinion that the evidence did not warrant a verdict for a greater amount than $373. The court thereupon, and on the 6th day of December, 1906, made an order that unless, within ten days after service of the notice of the decision upon plaintiff or his counsel, he agreed to the amount in excess of $373 and consented that judgment might be entered for that amount and costs, a new trial would be granted. The plaintiff thereupon, on the 8th day of December, filed with the clerk a remittitur in accordance with the order. On the same day an order was made by the court entering judgment for the sum of $373 and costs and denying the motion for a new trial. after and on the 21st day of December the defendant filed a written motion asking that the original order be made absolute, and that a new trial be granted, because the plaintiff had not served the defendant with a copy of the remittiThe refusal of the court to grant the motion is now No error was committed in this regard. There are other assignments, but we do not perceive any error in the rulings.

tur.

assigned as error.

There

We are of the opinion that the judgment of the court below ought to be affirmed, with costs. It is so ordered. MCCARTY, C. J., and FRICK, J., concur.

CARTER V. CUMMINGS-NIELSON CO. (NAT. BANK OF THE REPUBLIC, Intervener).

No. 1857. Decided August 25, 1908 (97 Pac. 334).

1. APPEAL AND ERROR-RECORD-SUFFICIENCY.

Where the record

does not purport to contain all the evidence, the Supreme Court is precluded from passing on the merits of the case, or reviewing errors relating to the insufficiency of the evidence to justify the decision.

2. SAME "TESTIMONY"-"EVIDENCE.”

A certificate of the official

stenographer "that the above and foregoing . .

contains

a full and correct transcript of my stenographic notes of the testimony taken and oral proceedings had on the trial," and an order of the judge settling the bill of exceptions reciting that the foregoing is "a correct transcript of the proceedings herein," do not show that the bill of exceptions contains all the evidence; the word "testimony" including only the oral statements of the witnesses while testifying, and not being synonymous with the word "evidence," including any species of proof submitted to a court or jury.1

3. SAME. Where findings of the trial court are challenged on appeal on the ground of the insufficiency of the evidence to sustain them, it must appear somewhere in the bill of exceptions that it contains all the evidence, or the appellate court will presume that there was evidence other than that disclosed by the record, which, considered in connection with the evidence in the bill of exceptions, was sufficient to sustain the findings.

APPEAL from District Court, Third District; M. L. Ritchie, Judge.

Action by W. C. Carter against the Cummings-Nielson Company, in which the National Bank of the Republic intervened. From a judgment in favor of plaintiff and the intervener, defendant appeals.

AFFIRMED.

Farnsworth & Lund for appellant.

A. B. Sawyer for respondent.

MCCARTY, C. J.

This is an appeal from a judgment rendered in favor of plaintiff, W. C. Carter, and the National Bank of the Republic, intervener, and against defendant, the CummingsNielson Company.

The errors assigned relate only to the alleged "insufficiency of the evidence to justify the decision.' The record does not purport to contain all the evidence produced at the

1 Crooks v. Harmon, 29 Utah 304, 81 Pac. 95.

trial.

Therefore we are precluded from passing upon the merits of the case. Attached to the transcript of the official stenographer's notes containing the testimony of the witnesses who testified in the case is his certificate, which recites that the above and foregoing sixty-eight pages contains a full and correct transcript of my stenographic notes of the testimony taken and oral proceedings had on the trial of the above-entitled action." The order of the judge

allowing and settling the bill of exceptions recites that "the foregoing is a correct transcript of the proceedings herein, and I hereby sign, settle, and certify it as such." It will thus be seen that neither the certificate of the stenographer nor the order of the judge shows that the bill of exceptions. contains all the evidence. Nor does it affirmatively appear elsewhere in the record that the bill contains all the evidence. True, the certificate of the stenographer alleges that the transcript contains "the testimony taken and oral proceedings had on the trial." But this falls far short of being a statement that all the evidence produced at the trial is contained in the bill of exceptions. The word "testimony," when used as it is in the foregoing certificate, is not synonymous with evidence. The former refers to and includes one species of evidence, namely, the oral statements made by witnesses while testifying; whereas, the latter is a generic term, and includes any species of evidence or proof submitted to a court or jury in the trial of a case. In the case of Crooks v. Harmon, 29 Utah 304, 81 Pac. 95, this court, speaking through Mr. Chief Justice Bartch, said:

"The word 'testimony' is a restricted, limited term, consisting only of the statements of witnesses, while the word 'evidence' is a comprehensive term, embracing not only testimony, or the statements of witnesses, but also documents, written instruments, admissions of parties, and whatever may be submitted to a court or jury to elucidate an issue or prove a case."

For a further discussion and illustration of this question, see 3 Words & Phrases, 2523. It is therefore settled in this jurisdiction that where, as in this case, findings of the trial

court are challenged on appeal on the ground of the alleged insufficiency of the evidence to sustain them, it must appear somewhere in the bill of exceptions that it contains all of the evidence, otherwise the appellate court will indulge in the presumption that there was evidence produced at the trial other than that disclosed by the record, which, considered in connection with the evidence in the bill of exceptions, was sufficient to sustain the findings.

The judgment is affirmed, with costs.

STRAUP and FRICK, JJ., concur.

LARSON v. SALT LAKE CITY et al.

No. 1944. Decided September 12, 1908 (97 Pac. 483).

1. COURTS-SOURCE OF JUDICIAL AUTHORITY. The power of the courts of the state is derived from the Constitution and laws of the state and from the common law, so far as not repugnant to the federal and state Constitutions and laws; and, where the power of a court is invoked, it is essential to point to some, constitutional provision or legislative enactment or the common law authorizing it, either expressly or by necessary inference from the nature and Constitution of the tribunal itself.

2. DISCOVERY-PHYSICAL EXAMINATION-COMMON-LAW POWER. At common law no power existed to compel one suing for a personal injury to submit to a physical examination by a physician appointed by the court.

3. COURTS-PRECEDENTS. The power exercised by a court of equity in bills of discovery is not a precedent for the exercise of the same power by a court of law.

4. DISCOVERY-EQUITABLE REMEDY. Because the courts at common law allowed parties to conceal from each other up to the time of trial the evidence on which they meant to rely, and would not compel either of them to supply the other with any evidence, the equitable remedy of bills for discovery to assist the prosecution or defense of an action pending in a court at law arose.

5. SAME STATUTORY AUTHORITY. In the absence of a statute authorizing it, common-law courts are without power to compel the inspection or production of books and papers out of court,

or the inspection of a document not pleaded, and not held in trust for the moving party, or the examination or survey of property, or to compel a party before trial to appear before a commissioner appointed by the court and answer pertinent interrogatories propounded to him concerning any material issue in the case.

6. SAME. The fact that a party having peculiar knowledge of a matter fails to bring it forward does not furnish any basis for the court to make an order requiring such party to divulge his knowledge before trial to the adverse party, or to supply him with the means of obtaining it.

7. SAME PHYSICAL EXAMINATION-POWER OF COURT. In the absence of a statute authorizing it, a court at law has no power to compel one suing for a personal injury to submit to a physical examination by a physician appointed by the court.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by Jennie Larson against Salt Lake City and others. From a judgment of dismissal, plaintiff appeals.

REVERSED AND REMANDED.

G. M. Sullivan, W. A. Lee, and A. T. Sanford for appellant.

Young & Snow and H. J. Dinniny for respondents.

STRAUP, J.

Plaintiff brought this action to recover damages for personal injuries alleged to have been sustained by her by the negligence of the defendants. It was alleged in the complaint that, by reason of the negligent acts, the plaintiff "was rendered unconscious, her left leg and ankle badly bruised and injured, her back, spine, and nervous system disordered, her face and nose scarred and disfigured, and that she was otherwise made sick, sore, and lame; that she was confined to her bed for many weeks, and required the services of a physician and surgeon; and that her injuries were permanent and lasting." The defendants filed genBefore trial, one of the defendants, the Big

eral denials.