waive his right to a trial by jury. Upon an examination of this record we find there is no statement or bill of exceptions in this case. Yet the abstract contains plaintiff's notice of intention to move for a new trial, an affidavit upon which it was based, and minutes of the trial court. These papers do not form any part of the judgment roll, and are improperly in the record. So far as the motion for new trial was made on the minutes of the court, the order denying it could only be reviewed by embodying such minutes in the statement of the case. The affidavit upon which the motion seems to have been based was not identified by the court as having been used on the hearing, and it is not embodied in any statement or bill of exceptions. A notice of intention to move for a new trial is no part of the record on appeal, except when shown by a bill of exceptions or statement of the case, Herrlich v. McDonald, 80 Cal. 472, 22 Pac. Rep. 299; People v. Smith, 3 Utah, 425, 4 Pac. Rep. 242; Lowell v. Parkinson, 4 Utah, 64, 6 Pac. Rep. 58; Bowring v. Bowring, 4 Utah, 185, 7 Pac. Rep. 716; Reever v. White, 8 Utah 188, 30 Pac. Rep. 685; Walsh v. Hutchins, 60 Cal. 228; Pico v. Cohn, 78 Cal. 384, 20 Pac. Rep. 706; Girdner v. Beswick, 69 Cal. 112, 10 Pac. Rep. 278; section 3404, 2 Comp. Laws 1888; Dominguez v. Mascotti, 74 Cal. 269, 15 Pac. Rep. 773. These papers, being improperly in the record on appeal, should be disregarded by the court. Hayne, New Trials & App. § 265; Graham v. Linehan, 1 Idaho, 780. In Reever v. White, 8 Utah, 188, 30 Pac. Rep. 685, this court held that on appeal from the judgment, without a statement or bill of exceptions, nothing is brought up or is a part of the record on appeal except the judgment roll, and no question outside of the judgment roll could be considered; that, if any further record is sought to be used, it should be made and presented in the form of a statement or bill of exceptions. With this imperfect record before us, we do not consider it necessary to discuss the question as to whether appellant was entitled to a jury trial under the circumstances shown. The question thus attempted to be presented, however, is fully discussed in Kearney v. Case, 12 Wall. 275; Hayne, New Trials & App. pp. 120, 121; Hitchcock v. Caruthers, 82 Cal. 523, 23 Pac. Rep. 48; Hawes v. Clark, 84 Cal. 272, 24 Pac. Rep. 116. These authorities support the position that by going to trial before the court without a jury, and without making any objection, the appellant waives his right to a trial by jury. The appellant contends that the trial court erred in adjudging that the respondents were the owners of the premises in controversy, for the reason that respondents filed no counterclaim or cross complaint. We do not think this contention can be sustained. No objection was taken to the answer before judgment, and the respondents alleged facts which seem to entitle them to affirmative relief under section 2326, Rev. St. U. S.; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289. It is not what a pleading is called which determines its character, but the facts which it sets up. Its character must be determined by the court. The relief granted seems to have been proper, under the facts stated and the prayer of the pleadings. Gregory v. Bovier, 77 Cal. 121, 19 Pac. Rep. 232; Kitts v. Austin, 83 Cal. 167, 23 Pac. Rep. 290; Holmes v. Richet, 56 Cal. 311; Rev. St. U. S. § 2326; Wolverton v. Nichols, 119 U. S. 485, 7 Sup. Ct. Rep. 289. We find no reversible error in the record. The judgment below is affirmed, with costs. BARTCH, J., concurred. J. H. MYERS, APPELLANT, v. L. B. ADAMS AND OTHERS, RESPONDENTS. TRUST.-RESULTING TRUST.-FIDUCIARY RELATION.-Where a board of education contracted with a contractor for the building of a school-house and the contractor made a contract with a subcontractor for part of the work, and the course of dealing was for board of education to pay the contractor for work as it was done, and thereupon the contractor paid his sub-contractor, and the sub-contractor invariably deposited the money paid to him in a certain bank of which the secretary of board of education was cashier; held, that there was no fiduciary relation of any kind existing between the bank and the holders of checks drawn by the sub-contractor. ID.-ID.-FUND.-A trust must be created either by contract of the parties or by operation of law, and no resulting trust claimed to be founded upon a fiduciary relation can arise where no fiduciary relation exists. ID.-ID.-STATEMENT OF CASE.-Where a sub-contractor received payments upon contract from his contractor, who received payments upon his contract from a board of education, whose secretary was the cashier of a certain bank, wherein the subcontractor was in the habit of depositing payments made to himself and of drawing checks against such deposits to pay his laborers, and said sub-contractor upon receiving his last payment deposited it in the bank, and issued checks against it, which were assigned to plaintiff, but before said checks were presented for payment the sub-contractor assigned his contract and the money in the bank to the bank, and thereupon the bank refused payment of the checks; held, that no trust existed or arose by operation of law so as to make the deposit of the :sub-contractor a trust fund for the payment of the checks. APPEAL from a judgment upon demurrer of the district court of the first district, Hon. James A. Miner, judge. The opinion states the facts. Mr. A. R. Heywood, for the appellant. Messrs. Kimball and Allison and Messrs. Boreman and Boreman, for the respondents. SMITH, J.: This is an action commenced by plaintiff, who is the assignee of the payees of certain checks issued by one John Hedderman, drawn on the defendant the Utah National Bank. The facts alleged in the complaint, in substance, are: That the defendant, the board of education of Ogden city, was, during the spring and summer of 1892, engaged in building a school building in Ogden city. That defendants Carr & Callahan were the original contractors for such building. That defendant Hedderman was a sub-contractor of the first degree under Carr & Callahan, and the assignors of plaintiff were workmen employed by Hedderman on the building. Defendant Adams was a member of the board of education, and was also cashier, manager, and a large stockholder in the Utah National Bank. It is then alleged that, under their contract, Carr & Callahan, from the beginning of their work, regularly, every two weeks, received an estimate from the architect in charge of the building for work done during the preceding two weeks; that the board of education paid 80 per cent. of this estimate to Carr & Callahan, and that they regularly paid to Hedderman 80 per cent. of the value of work done under his sub-contract during the preceding two weeks; that Hedderman, on receipt of this payment, each time deposited it in the Utah National Bank, and then drew checks on the bank to pay his employés the several amounts due them; that these checks were regularly paid on presentation; that this course of dealing continued from some time along in the spring of 1892 up to September 3, 1892, on which last-named date Hedderman deposited his money and drew checks, as usual, to the amount of $375.85 in the aggregate, being 12 checks in all; that all of these checks were assigned to plaintiff, and also the claims of the several assignors for wages due; that plaintiff presented the checks at the bank for payment on the next business day; that defendant Adams, as cashier of the bank, refused to pay any part of the checks, and gave as a reason that Hedderman had assigned his contract to the bank, and the bank had appropriated the last money paid thereon as its own; that none of the checks or claims had been paid; that the assignment by Hedderman to the bank was without the knowledge of plaintiff and his assignors; that Hedderman was insolvent; that Carr & Callahan held in their possession the contract between them and Hedderman. The prayer is for an accounting between Carr & Callahan and Hedderman, and that the money paid into the bank by Hedderman be declared a trust fund for the payment. of the checks assigned to plaintiff. The defendant the board of education appeared and demurred to this complaint for want of facts sufficient to constitute a cause of action; the defendants L. B. Adams and the Utah National Bank filed like demurrers; and, both demurrers being sustained, the action was dismissed as to the defendants who had demurred. The plaintiff appeals from this judgment of dismissal. The only question is, does the complaint state sufficient facts to entitle the plaintiff to any relief against the board of education or L. B. Adams or the Utah National Bank? It was not seriously contended on the argument of this case that any relief could be had against the board of education, and a careful examination of the complaint leaves no doubt in our minds as to the correctness of the judgment dismissing it. As to defendants Adams and the Utah National Bank, it is claimed by the appellant: 1. That the assignment to the bank by Hedderman of his contract, and the money paid under it, is void because the cashier of the bank was a member of the board of |