Swauger v. Lawler , 116 Utah 347 ( 1949 )

I concur.

Appellant makes two principal arguments as to why the judgment of the trial court should be reversed. The first contention is that the trial court was without jurisdiction to consider the motion to set aside the judgment for the reason that it was in effect another and second motion for new trial. The second contention is that on the motion for new trial the trial court passed on the same legal principles involved in the motion to set aside the judgment, and the ruling on the motion for new trial was res adjudicata as to the issues raised by the subsequent motion.

In the case of McCullough v. McCullough, 37 Utah 148,106 P. 665, this court held that motions, petitions, affidavits, proceedings, rulings and orders on a motion to set aside a judgment are not a part of the judgment roll and for this court to properly review the question presented, it is essential to preserve all proceedings in a bill of exceptions. The prevailing opinion appears to approve that rule.

Under our present statutes, I believe some of these matters can be reviewed without a bill of exceptions. However, we need not decide that question in the present action as even were we to assume we could consider all affidavits, motions and orders, the complete record as certified to this court, including the proceedings on the motion to set aside the judgment, does not affirmatively show that the trial court was without jurisdiction to hear the motion or that the trial court's ruling on the motion to set aside the judgment passed on the same legal questions presented on the motion for new trial.