261 P. 652 | Nev. | 1927
Certificate of judge to bill of exceptions that it contains "some" evidence and "some" testimony is insufficient. It must be to effect that bill of exceptions is correct, contains "substance" of proceedings relating to point or points involved and has been so settled and allowed. Stats. 1923, 163; Capurro v. Christensen,
Uncertified record is no record. If there is no bill of exceptions in record, order denying motion for new trial cannot be reviewed on merits and appeal from such order will be dismissed. Love v. Mt. Oddie U.M. Co.,
Defect in certificate is so flagrant we refrain from citing authorities in support of other grounds. Respondent chooses to be technical. Stats. 1923, 163, provides that certificate shall be "to the effect" that bill is correct, etc. Such certificate is attached. "To the effect" means "to the purpose," "to the general intent." What does "substance" mean? "Essential part," "material part," "meaning." Substance has nothing to do with form. Hugh v. Miller, 52 N.W. 38; Law v. State, 38 S. 798.
"Proceedings" means, according to Cyc., "all steps taken in prosecution or defense of action." In Stats. 1923, 163, it was substituted for "material evidence," used in Stats. 1915 (3 Rev. Laws, p. 3343).
It is not required that evidence be in bill of exceptions. Judge said it correctly sets forth pleadings, orders, decisions, judgment of court and some evidence and testimony. Is not that "in effect" the "substance of the *368
proceedings"? If objections are good, proper corrections may be made. No appeal shall be dismissed for any irregularity * * *. Rev. Laws, 5328; Warren v. Wilson,
Stats. 1923, 163, was passed for specific purpose of destroying effect of Capurro v. Christensen. Surely it is no longer controlling.
Bill of exceptions was filed in supreme court on August 3, 1927, when trial judge had not filed any findings, conclusions or judgment.
Judge is author of minutes and judgment and is competent to say if they are correct. No clerk's certificate is required.
The written motion is supported by the affidavit of counsel for respondents and the record and files herein. Several causes are assigned as grounds for the motion to strike. The one particularly stressed in argument is that there is no bill of exceptions settled and allowed by the court or judge or by stipulation as required by section 1 of the Statutes of 1923, chapter 97, page 163, in the record. On the other hand, counsel for appellant insists that by fair construction and reasonable intendment the certificate attached to the bill of exceptions shows it to have been properly settled, allowed, certified, and made a part of the record, and that the motion to strike should be denied.
The only way this court can determine whether a bill of exceptions is valid is to examine the certificate required by section 1 of the Statutes of 1923 to be *369
attached thereto. It is held in Shirk v. Palmer,
The certificate attached to the bill of exceptions herein reads:
"I hereby certify that the above and foregoing `bill of exceptions' does truly and correctly set forth the pleadings, some evidence, some testimony, orders, rulings, decisions, and judgment of the court and the exceptions taken thereto by the plaintiff, and the same is hereby settled and allowed."
1. It will be observed that the certificate does not contain any statement that the bill of exceptions is correct, or that it contains the substance of the proceedings relating to the point or points involved. On the contrary, it does appear from the certificate that it contains only some of the evidence and some of the testimony. It is perfectly clear that the certificate does *370 not conform to the requirements of the statute, and, therefore, the bill of exceptions cannot be considered on the appeal from the order denying appellant's motion for a new trial.
2, 3. It is insisted on the part of appellant that the case of Capurro v. Christensen,
4. It does not appear from the record that the certificate can be amended so as to conform to the provisions of section 1 of the Statutes of 1923, and counsel for appellant has made no showing to that effect. It is therefore ordered that the proposed bill of exceptions be stricken from the record. *371